Introduction - Building Contract Claims - page 9

for payment only sums which the express terms of the contract authorise
him to so certify. Under the JCT Standard Forms the architect has no power
to certify amounts in respect of common law, quantum meruit or ex gratia
claims. A contract may, of course, endow the architect with authority to do
so or the employer may authorise the architect to act for him in respect of
such claims.
Architects sometimes assume, incorrectly, that they enjoy inherent
powers to act as the employer's agents in all respects. The same mistaken
assumption is sometimes made by contractors who consequently are disap-
pointed when the architect correctly refuses to certify payment for common
law claims. Under the JCT Forms of Contract the powers of the architect as
agent of the employer and to certify sums for payment are closely defined,
and the architect may himself be at risk if he exceeds the powers so con-
ferred upon him. The architect's position has been succinctly summed up
thus:
'The occasions when an architect's discretion comes into play are few,
even if they number more than the one which gives him a discretion to
include in an interim certificate the value of any materials or goods before
delivery on site . . . The exercise of that discretion is so circumscribed by
the terms of that provision of the contract as to emasculate the element of
discretion virtually to the point of extinction.' 15
It should be remarked that the judge was referring to the JCT 63 form and
that the discretion which the architect then had with regard to certification
of materials off-site has since been removed.
Under the claims provisions of both JCT 98 and IFC 98 it seems that there
must be implied a duty on the architect or quantity surveyor to carry out the
ascertainment of direct loss and/or expense within a reasonable time of
receiving reasonably sufficient information from the contractor 16 . What is a
reasonable time will vary with the circumstances of each case. Indeed, if an
architect or quantity surveyor delayed unreasonably in the ascertainment he
might be liable personally, either directly or through the employer, to the
contractor in damages. This proposition receives some support from an
obiter observation of Parker J in F. G. Minter Ltd v. Welsh Health Technical
Services Organisation at first instance, where he said: '[If] the period was
unreasonable the chain of causation would be completely broken. This
might give rise to a claim against the architect . . . ' 17 .
Although the first instance judgment of Parker J was reversed in part
by the Court of Appeal, it appears that the learned judge's intimation of a
possible personal liability of the architect or quantity surveyor is a correct
statement of the law. That passage of the judgment of Stephenson LJ
15 Partington & Son (Builders) Ltd v. Tameside Metropolitan Borough Council (1985) 5 Con LR 99 at 108
per Judge Davies.
16 Croudace Ltd v. London Borough of Lambeth (1986) 6 Con LR 70.
17 (1979) 11 BLR 1 at 13 per Parker J partially reversed by the Court of Appeal, but not on this point
(1980) 13 BLR 7.