The contractor for a bus station project made clear that it was unwilling to proceed regularly or diligently with the works and had substantially suspended works, unless or until the employer conceded its demands for a substantial extension of time significantly beyond its true entitlement and a blank cheque to accelerate the works. It was not entitled to either. The employer had not granted the claimant the full extension of time to which it was entitled and also had apparently not fully complied with its payment obligations but was the contractor’s conduct a repudiation?

In ruling that the contractor was in such serious and significant breach of contract as entitled the defendant to terminate the contract or to accept that breach as repudiatory the court referred to the Court of Appeal’s analysis of repudiation in Eminence Property Developments Ltd v Heaney, in summary that:

  • the legal test is whether, looking at all the circumstances objectively (from the perspective of a reasonable person in the position of the innocent party), the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract;
  • whether there has been a repudiatory breach is highly fact sensitive, which is why comparison with other cases is of limited value;
  • all the circumstances must be taken into account insofar as they bear on an objective assessment of the intention of the contract breaker; 
  • application of the test to the facts of a particular case may not always be easy to apply.

The court also noted that, while there may be cases where the contractor is entitled, or even obliged, to cease works, possibly on a unilateral basis, until some serious safety risk is addressed, in the court’s view the starting point must be that, unless and until some sufficient reason arises, the contractor cannot simply down tools without an instruction and then seek to hold the employer liable for the consequential delay.

Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council [2022] EWHC 2598