Certificates - Construction Contracts - page 238

145 What does it mean to 'issue' a certificate?
This is a topic which causes considerable difficulty, although it appears so simple. Many
building contracts require certificates to be issued. The date of issue of a certificate is im-
portant, although not as important as it was before the amendment of the Housing Grants,
Construction and Regeneration Act 1996. Under JCT contracts, a certificate stating the
amount of payment must be issued no later than five days after the due date. Where the fi-
nal certificate is concerned, under SBC, IC and ICD, the certificate must be issued within a
stated time period. Issue of the certificate within the time period marks the due date, and the
final date for payment is 28 days from the due date.
Although it has been the subject of some discussion, the date of issue of a certificate is
established as being the date on which the certificate was sent out by the certifier. The fact
that it is sent out, that it leaves the sender, is important. If the certificate was actually sent
out from the architect on a later date than the date on the certificate, it is probable that it
would be the date of sending out (the date of issue) which would be relevant. 9 For example,
a certificate is not issued if it is merely signed by the architect and put in a drawer. 10 On the
other hand, the issue of a certificate is not the same as the serving of a certificate on, or the
receipt by, another party. 11 Issue and receipt may, and often are, achieved on different dates,
and it is significant that it is the date of issue, not receipt, which is important in JCT and
other contracts. In Token Construction Co Ltd v Charlton Estates Ltd 12 the court said:
[Counsel]stressesthatclause16imposesnorequirementofthedocumentwhereby'the
architect certifies in writing' his opinion must be served upon any particular person,
andisthusunlike,forexample,clause21(a),whichrequiresthearchitecttoissueinter-
im certificates to the 'contractor'. Nevertheless I have some difficulty in thinking that
there would be sufficient compliance with clause 16 if the architect certified in writing
and then locked the document away and told no one about it.