Civil Engineering Reference
In-Depth Information
The architect cannot avoid issuing the certificate of non-completion if the
contractor has failed to complete by the due date. It is not something for his
discretion. If the architect fixes a new date for completion after the issue of
the certificate, the fixing of a new date is said to cancel the existing certificate
and the architect must issue a further certificate. The clause refers to 'such
further certificate . . . as may be necessary', because if the architect fixes a
new date which is the same as, or later than, the date the contractor actually
completes the works, a further certificate is unnecessary.
Clause 24.2.1 introduces a further condition precedent if the employer
wishes to deduct them from future payments or if he wishes the contractor
to pay him. The employer must give a written notice to the contractor that
he may deduct or may require the payment. Clause 24.2.3 provides that the
employer need only serve one notice requiring payment. It remains effect-
ive, despite the issue of further non-completion certificates, unless the
employer withdraws it. Since the decision to deduct liquidated damages
rests with the employer, it is unlikely that he would ever, in practice,
withdraw the notice. If he decided not to deduct damages, he would simply
let the matter rest.
The timing of the written notice sometimes causes difficulty. It seems to
suggest that liquidated damages may be deducted provided that the written
requirement is served before the date of the final certificate. Thus damages
might be deducted from an interim certificate several months before notice
is served just before the issue of the final certificate. That, of course, would
be a nonsense and the purpose of the clause does not permit such a
construction. It is perhaps unfortunate that the wording did not make
clear that the date of the final certificate is stated as the deadline for the
written requirement and that the requirement must always pre-date the
deduction. It should be noted that failure to serve the written requirement
will not only prevent deduction, it will also preclude recovery of the liquid-
ated damages as a debt.
Some doubt has been thrown on the precise form to be taken by the
employer's written requirement for payment under earlier versions of the
standard form. Judge John Newey stated:
'There can be no doubt that a certificate of failure to complete given
under clause 24.1 and a written requirement of payment or allowance
under the middle part of clause 24.2.1 were conditions precedent to the
making of deductions on account of liquidated damages or recovery of
them under the latter part of clause 24.2.1.'
503
This seems perfectly clear, but another Official Referee thought:
' . . . that there was no condition precedent that the employer's require-
ment had to be in writing. What was essential was that the contractor
should be in no doubt that the employer was exercising its power under
24.2 in reliance on the architect's certificate given under 24.1 and
503
A. Bell & Son (Paddington) Ltd
v.
CBF Residential Care & Housing Association
(1990) 46 BLR 102.
504
Jarvis Brent Ltd
v.
Rowlinson Construction Ltd
(1990) 6 Const LJ 292.
