Certificates - Construction Contracts - page 239

146 What can a contractor do if the architect
fails to certify?
Thisusedtobeafairlytrickybusiness.Thearchitect isnotapartytothecontract; therefore,
an important question is the extent to which an employer may be liable for the architect's
failure to certify. An old case has decided that terms will be implied into a contract that an
employer will not interfere with the architect's duties as certifier, but an employer will en-
sure that the architect carries out his or her duty as certifier. 13 Although this is an Australian
case and not binding in the UK, it is thought that it properly represents the law here also.
Moreover, a later English case held in regard to the architect:
There may, however, be instances where the exercise of his professional duties is suffi-
ciently linked to the conduct and attitude of the employer that he becomes the agent of
the employers so as to make them liable for his default. 14
Some doubt has been thrown on these fairly bold statements by a more recent case. 15 The
court held that the architect, although employed by the employer, was given authority by
both parties to the contract to form and express opinions and issue certificates as and when
required by its terms. When so acting, the architect was not the agent of the employer, but
[the employer] was the party who could control [the architect] if he failed to do what
the contract required. Since the contract is not workable unless the certifier does what
is required of him, [the employer], as part of the ordinary implied obligation of co-op-
eration, was under a duty to call [the architect] to topic . . . if it knew that he was not
acting in accordance with the contract. . . . the duty does not arise until the employer is
aware of the need to remind the certifier of his obligations.
The situation has changed since the amendment of Housing Grants, Construction and Re-
generation Act 1996, which made the due date rather than the architect's certificate the trig-
ger for calculating the final date for payment. Since 2011, if the architect fails to certify
within five days of the due date, the contractor is entitled to submit a payment notice with
itsowncalculation ofthesumdue.Theemployer mustpaythatsumunlessapaylessnotice
is served no later than five days before the final date for payment.