Architects - Construction Contracts - page 97

56 Are there any circumstances in which a contractor can
successfully claim against the architect?
This is a question that crops up fairly frequently. Architects are prone to ask it just before
making an important contractual decision; contractors ask it when they are particularly an-
noyed with an architect's conduct. In general, it is usually easier for the contractor to claim
against the employer than the architect, because the contractor and the employer are related
by the building contract while the contractor has no contractual relationship with the archi-
tect. Therefore, a contractor finds it relatively easy to claim under the terms of the contract
against the employer for a breach of the contract. Claims by the contractor against the ar-
chitect must be made in tort. Since 1990, 3 negligence claims in the absence of a contractu-
al relationship have become very difficult to sustain. A contractor making a claim against
an architect would almost certainly do so under the reliance principle. 4 It usually applies to
professionals, although courts have extended the scope in some instances. The principle, in
brief, is that if a professional gives advice to another person or class of people knowing that
the person or persons will rely on it, and if the person or persons do rely on the advice and
suffer a loss as a result, the loss will be recoverable from the professional. This is irrespect-
ive of any fee paid or not paid to the professional and even though there is no contractual
relationship.
The contractor sued both employer and architect in Michael Salliss & Co Ltd v ECA Ca-
lil, 5 claiming that the architects owed a duty of care to the contractor. Although the con-
tractor was unsuccessful in arguing that the architect owed the contractor a duty to provide
accurate and workable drawings, it was successful in its claim that it relied on the architect
to grant an adequate extension of time and to properly certify the value of work done. The
court appeared to think that this was self-evident. It remarked that if the architect unfairly
promoted the employer's interest by inadequate certification or merely failed properly to
exercise reasonable care and skill in the certification, it was reasonable that the contractor
should not only have rights against the owner but also against the architect to recover dam-
ages.
Three years later, Pacific Associates v Baxter 6 seemed to overturn this position, but al-
though the court said that a question mark hung over the Salliss case, it stopped short of
saying that it was wrongly decided. Pacific Associates was effectively the contractor under
a FIDIC contract for work in Dubai. The contractor claimed that it had encountered unex-
pectedly hard materials and that it was therefore entitled to a substantial extra payment. The
engineerswouldnotcertifytheamountclaimed,andthecontractorsuedthem.Theclaimal-
leged that theengineers acted negligently inbreach oftheir dutytoact fairly andimpartially
in administering the contract. In a judgment upheld by the Court of Appeal, the court struck