Articles

24 February 2024

Thomas Barnes & Sons Plc (In Administration) v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC) (“Thomas Barnes”) is the latest English case which held that in the event of concurrent causes of delays, one of which is the contractor’s responsibility, and the other is the employer’s responsibility, the contractor should be granted an extension of time.

The Background

1. Thomas Barnes concerned the construction of a bus station that was subject to significant cost increases and delay. The bus station consisted of, amongst other structures, a hub area on one end which was the subject of the dispute. The defendant employer alleged that the claimant contractor had defaulted on its obligations and terminated the contract. Subsequently, the contractor claimed for loss and expense on the basis of wrongful termination.
2. The contractor’s case was that the erection of the structural steelwork was delayed by the hub steel deflection issue because of the hub’s structural steelwork’s design (the “employer’s delay”), which was on the critical path. The contractor alleged that the structural steelwork’s design was the employer’s responsibility and the contractor was entitled to an extension of time.
3. The employer’s case was that the initial delays in commencement had justified an extension of time. But at the same time of the employer's delay, the critical path was delayed by a separate delay due to issues with the roof coverings (the “contractor’s delay”) which were the contractor’s responsibility.

The Ruling on Concurrent Delays

4. The judge held that the contractor was entitled to an extension of time.
5. He found that both the employer’s delay and the contractor’s delay were both on the critical path at the same time. This was thus a case where both the employer’s and the contractor’s delay were concurrent.
6. With respect to the law on concurrent delays, the judge held that the position was settled^[1]. The judge approved the summary of the law by the editors of Keating on Construction Contracts 11^th Edition as follows:
   1. Depending on the precise wording of the contract, a contractor is probably entitled to an extension of time if the event relied upon was an effective cause of delay even if there was another concurrent delay for which the contractor was contractually responsible; and
   2. Depending on the precise wording of the contract, the contractor is only entitled to recover loss and expense if it satisfies the “but for” test. Thus, even if the event relied upon was the dominant cause of the loss, the contractor will fail if there was another cause of that loss for which the contractor was contractually responsible.
7. The relevant contractual clause which governed EOT was clause 2.29A, amended from the JCT terms. Clause 2.29A states that the entitlement of the contractor to an extension of time shall not arise “on account of any circumstance arising by reason of any error, omission, negligence or default of the Contractor…”.
8. In the judge’s view, the contractor’s delay (e., the issues with the roof coverings), was a critical delay. The judge also found that the employer’s delay (i.e., the hub steel deflection issue) was due to the employer not providing the necessary designs in time.
9. Both of these work times were on the critical path and causing delay over the same period. In other words, both the contractor’s delay and the employer’s delay were concurrent causes of delay. However, due to the contractor’s own delay, the contractor was not able to satisfy the “but for” test. Applying the principles under English law, the judge held that the contractor was entitled to the extension of time but not to a claim for loss and expense

Significance

10. Thomas Barnes follows the approach taken in a series of English decisions on concurrent delays, such as De Beers v Atos Origin IT Services UK Ltd [2011] BLR 274 at [177]; Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 Comm at [277]; Walter Lilly & Company Ltd v Mckay [2012] EWHC 1773 (TCC) at [370].
11. Under English law, subject to the provisions of the contract, the position regarding concurrent delays is that while the contractor is likely to be entitled to an extension of time, the contractor would not be entitled to recover loss and expense. In short, the contractor is entitled to the “time” consequence but not the “cost” consequence.
12. This “all or nothing” approach stands in contradistinction to the Scottish position on concurrent delays in City Inn Ltd v Shepherd Construction Ltd [2010] BLR 473 (“City Inn”), where the Scottish Court of Session held that an apportionment exercise may be undertaken where concurrent delays occur. This exercise involves apportioning the subsequent delay between the contractor and the employer and granting a corresponding apportioned extension of time.
13. What then is the position under Singapore law? In Ser Kim Koi v GTMS Construction Pte Ltd [2022] SGHC(A) 34 (“GTMS”), the Appellate Division endorsed the English approach^[2] and held that the main contractor in that case was relieved of liability for liquidated damages as it was entitled to an extension of time for additional works during a period of concurrent delay.^[3] Given that the issue of concurrent delays was not pleaded and the parties have only briefly mentioned the law in relation to concurrent delays, the Appellate Division observed that “[t]here should have been more detailed submissions made on the legal position as none of the other key texts or cases like City Inn Ltd v Shepherd Construction Ltd [2010] BLR 473 … have been dealt with by the Singapore Courts.” Therefore, it appears that the door is still open for the Scottish position to be adopted in Singapore.
14. Apart from the issue of concurrent delay, the judge in Thomas Barnes also made certain interesting observations on the SCL Protocol.^[4]
15. He observed that “it would be wrong to attach too much importance to a close analysis of whether each had properly chosen or loyally followed the particular method selected”. The judge further cautioned that it would be wrong to find that an expert is only allowed to choose one out of the six commonly used methods of delay analysis as identified in the SCL Protocol and any deviation from the stated approach renders the expert’s opinion unreliable. Instead, the common objective of each method of delay analysis is to “enable the assessment of the impact of any delay to practical completion caused by particular items on the critical path to completion.”
16. That said, the judge accepts that if an expert selects a method which is manifestly inappropriate, or deviates materially from the method which he purports to follow without any proper explanation, the court may take that into consideration in deciding how much weight to place on the expert’s opinion.

Contributed by:

Ngo Wei Shing - Counsel, Providence Law Asia; Liu Enning - Trainee, Providence Law Asia

^[1] Thomas Barnes at [118].

^[2] GTMS at [171].

^[3] GTMS at [355].

^[4] Thomas Barnes at [108] – [110].