Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council

[2022] EWHC 2598 (TCC)

This claim arose out of the construction of Blackburn Bus Station, which was subject to significant cost increases and delay overrun. The contract, based on amended JCT terms, was terminated by Blackburn/Darwen BC (BDBC)  before work was finished and BDBC proceeded to have the work completed by a replacement contractor. The administrators of Thomas Barnes (TB) brought claims for monies said to be due under the contract on a proper valuation of the works done at termination (including claims for prolongation) and damages for wrongful termination. BDBC disputed the claim in its entirety. 

TB called a number of witnesses. HHJ Davies commented that three continued to: “harbour a real grievance against” those who they blamed for the failure of the project and the subsequent failure of TB. However, they were wrong to do so. TB had been struggling since the early 2010s and only had two live contracts at the time, both of which caused the financial problems. The Judge commented that:

“This misplaced opinion and strong grievance … plainly coloured their recollection of events which was, inevitably, poor anyway as to the details, given that they were giving evidence about events occurring 7 to 8 years ago. None of them had much, if any, direct involvement with the project at site level and, thus, much of the detail of their evidence was second hand commentary anyway.”

Further, the statements did not comply with the requirements of Practice Direction 57AC. In the view of the Judge they were: 

“replete with commentary and opinion notwithstanding that each had signed confirmations of compliance which included the required statement that they understood that the purpose of their witness statement was to set out matters of fact of which they had personal knowledge and not to argue the case, either generally or on particular points.”

In the view of the Judge, a witness who produced and signed a witness statement, which they knew or should have known failed to comply with the rules, could not complain if a court takes that into account when assessing their credibility. The Judge also said that, given the passage of time, he would need to be very convinced before being able to prefer witness evidence over the contemporaneous documents on a particular point. Contemporary documents were a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. 

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