Civil Engineering Reference
In-Depth Information
has been novated from the employer to the
contractor at tender stage, can the employer
ask the same architect to prepare a list of
defects after practical completion?
Ifthenovationhasbeencarriedoutproperly,ithastheeffectofendingthecontract between
the employer and architect and substituting a contract between the contractor and the archi-
tect on essentially the same terms, albeit minor changes may be needed to deal with the dif-
ferent circumstances. The employer's and the architect's duties to each other are at an end.
After novation, the architect's duty is owed to the contractor alone.
Novation of the architect's contract is never a good idea, because the employer and archi-
tect will have built up a rapport during the preliminary stages of the appointment and it is
difficult for both parties when the architect changes allegiance. Indeed, there is a clear con-
flictofinterestforthearchitect,mitigatedonlybythefactthatbothemployerandcontractor
haveagreedtothechange.Afternovation,itisoftendifficultfortheemployertounderstand
that the architect is no longer his or her architect and advisor, and the employer may ask
the architect to do things which are no longer possible. For example, if the architect agreed
to prepare a thorough list of defects after practical completion, it could be said to be acting
against the contractor's interests.
The DB contract provides for an employer's agent to be engaged by the employer. It is
the employer's agent who is responsible for carrying out the inspection and preparing a list
of defects after the end of the rectification period.
