Lessons from the litigation after the construction of Blackburn bus station

The two cases of Thomas Barnes & Sons Plc (“TBS”) v Blackburn with Darwen Borough Council (“the Council”) concern the construction of the Blackburn bus station, a project marked by delays, cost overruns, and ultimately the termination of the contractor. The cases concern: the original dispute over delays and alleged wrongful termination of the bus station, culminating in the 2022 judgement; and the 2026 case, where the Council successfully obtained a non-party costs order against family members who funded the litigation.

Anyone who is considering funding litigation should take note of the second decision: it is a reminder that they may be personally liable for costs if the party they are funding cannot pay. And the two cases together also provide a useful illustration of the court’s approach to other issues: delay analysis, concurrent delay, expert evidence, and termination rights.

The first case

In 2013, TBS was appointed to construct a new bus station in Blackburn, under a JCT Standard Building Contract with Quantities 2011 edition. This was intended to be a flagship public infrastructure development for the Council. The project soon ran into trouble concerning: structural concerns, particularly in relation to steelwork deflection; delays to roof covering works; and disputes over sequencing and responsibility.

The contractor-employer relationship became strained, and by mid-2015 progress had slowed significantly. The Council terminated the contract on 4 June 2015, before completion, alleging that TBS had failed to proceed regularly and diligently. TBS entered administration later that year.

In 2020, TBS’ administrators raised proceedings seeking over £1.7 million in damages for alleged wrongful termination. The case was heard in the Technology and Construction Court, and the key issues were whether:

TBS was entitled to an extension of time for completion (or ‘EOT’)
Delays were caused by the Council or by TBS
Delays were concurrent
The termination was lawful

TBS’ administrators claimed that TBS was entitled to a 172-day EOT. This was denied by the Council, who claimed that TBS’ own delays were dominant.

Two major delay events were examined: the Steelwork deflection investigations, which were the responsibility of the Council; and the roof covering delays, which were the responsibility of TBS. Both parties relied heavily on expert delay analysis, referencing the SCL Delay and Disruption Protocol. The judge criticised both experts for inconsistencies in their methodologies, noting that methodology is secondary to factual reality.

The court emphasised that:

The SCL Protocol is guidance, not law
Courts will not be bound by rigid analytical models
The key question is what actually delayed the project

The court held that the two major delays were concurrent delays, even though they did not fully overlap in time. Although the delays did not start or end simultaneously, they were concurrent in effect because they both had to be resolved before internal works could proceed and they had both independently delayed the critical path. The court applied the standard approach that an EOT entitlement can arise even where there is concurrent employer and contractor delay, but an entitlement to loss and expense for the concurrent delay period will usually not arise.

The court also considered TBS’ termination. The Council had issued several default notices based on TBS’ alleged delays and suspension of works, and then a termination notice. This notified termination under the contract and alternatively at common law as a purported acceptance of TBS’ repudiatory breach. This termination notice was initially received by TBS by email and by hand, following which TBS left the site and the Council changed the locks. It was then received again two days later by recorded delivery post at TBS’ registered office. TBS argued that the termination was wrongful and repudiatory, as it did not comply with the contractual notice delivery requirements.

The court found that the initial copy of the termination letter, which was emailed and handed over in person on site, did not comply with the notice delivery requirements under the contract. However, the court held that this was irrelevant, because a correctly delivered termination letter was received two days later; TBS knew the notice had been sent in this manner when it left the site; there were valid grounds for termination; and TBS had effectively ceased all meaningful activity on site so there was no adverse effect on TBS through being removed two days earlier than it would have been anyway.

In October 2022, the court dismissed TBS’ claim. It found that the Council’s termination was justified; TBS was not entitled to the claimed extent of EOT or prolongation costs; and concurrent delay defeated TBS’ entitlement to recover losses for that period.

This left TBS liable for the Council’s legal costs, which were substantial, leading to the 2026 case.

The second case

After the 2022 judgment, the Council recovered £583,000 through security for costs but a £412,000 shortfall remained. Family members of the late Brian Barnes (a former director of TBS) had funded and controlled aspects of the original litigation, and in 2025 the Council applied for a non-party costs order (‘NPCO’) against them.

The application was made under Section 51 of the Senior Courts Act 1981. In summary, the test involved whether it was just in all the circumstances to make a NPCO.

The court again found in favour of the Council. The judge held that the family members had a direct financial interest in the litigation; had funded and to some extent controlled the proceedings; were, in substance, the real parties behind the claim; and continued the litigation despite clear warnings about the risks. The court criticised the lack of detailed evidence from the respondents and found their explanations “implausible” without supporting documentation. It granted the NPCO.

Key takeaways

The ruling is a powerful reminder that funders who stand to benefit from litigation, and who influence its conduct, may be personally liable for costs if the funded party cannot pay; even ‘exceptional’ NPCOs may be granted; and transparency in funding arrangements is essential. And it also has lessons in three other areas.

Delay and concurrent delay

Courts adopt a pragmatic, fact driven approach
True concurrency is rare, but recognised where two independent delays both affect the critical path
Where concurrency exists, contractors will usually face significant hurdles when trying to recover prolongation costs

Expert evidence

Delay analysis methodology is not decisive but credibility and factual grounding are
Courts may disregard overly theoretical analysis

Termination rights

Employers can usually terminate contracts where the contractor is responsible for critical delays
Termination notices should be issued in accordance with contractual notification requirements to avoid arguments of invalidity on this ground.
Contractors should maintain robust records to defend against termination

Lastly, the cases demonstrate again that complying with contract requirements and keeping good records will significantly lower your legal risks. If you would like help with this, or have any questions, please contact a member of our Construction, engineering and infrastructure disputes team.

This article was co-authored by Trainee Euan Rennie.

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