Certification - Scottish Construction Contracts - page 184

nominate a replacement within 21 days. This is subject to the Contractor's right of
objection within seven days of the nomination. In contrast, the NEC3 simply pro-
vides in clause 14.4 that the Employer may replace the Project Manager or Supervisor
after he has given the Contractor notification of the name of the replacement. Where
the contract is silent, then it is submitted that there is, nevertheless, an implied term
that the employer has a right to appoint a new certifier, subject to reasonable objec-
tions from the contractor. If the employer fails to appoint a new certifier, then this may
amount to a breach of contract on their part particularly in the event that certifica-
tion is a precondition to rights on the part of the contractor, for example, to payment,
see Croudace Ltd v. London Borough of Lambeth (1986). Similarly, where an employer
failstoappointanewcertiier,thenhemaybeprohibitedfromrelyingonthelackof
certification to defend claims by the contractor.
The certifier is normally engaged by the employer and has no direct contractual
link with the contractor. The certifier's rights and obligations are set out in his terms
andconditionsofappointmentorimpliedbylaw.Usuallythecertiierisamemberofa
professional body and his conditions of appointment may be based on standard forms
issued by his professional body. As the certifier is normally engaged by the employer,
then he must act on the instructions of his employer and any acts or omissions on the
part of the certifier can amount to a breach of his contract with the employer giving
rise to a claim for damages against him. Furthermore, the certifier is normally also
acting as the agent of the employer in respect of the building contract and any acts
or omissions in this connection can place the employer in breach of contract with
the contractor. In this respect, however, a difficult distinction requires to be drawn
between the certifier's duties as agent of the employer and his duties as certifier.
7.6.2 Jurisdiction of the certifier
hejurisdictionofthecertiierisdeinedbytheexpresstermsofthebuildingcontract.
If the certifier goes beyond his jurisdiction, then any certificates issued will be invalid
and open to challenge by either party, see, for example, Hall & Tawse Construction Ltd
v. Strathclyde Regional Council (1989),wherethecertiiermadedeductionsinacertii-
cate which he had no authority to make in terms of the contract. This will apply even
to certificates stated to have final and conclusive effect. See, for example, the English
case of Menolly Investments 3 SARL v. Cerep SARL (2009). The certifier also needs to
ensure that he has complied with any formal requirements for issuing certificates, par-
ticularly those which are essential preconditions and that he has complied with any
time limits set out in the contract.
Once the certifier has completed his functions, then his jurisdiction falls and he is
functus officio, , having discharged his function. In some contracts this occurs when he
issues the final certificate. Thereafter, he is precluded from issuing any further valid
certificates, see HFairweatherLtd v. Asden Securities Ltd (1979).
The contract can also indicate a number of other events or contingencies which will
bring a certifier's jurisdiction to an end. Raising arbitration proceedings, however, will
not normally make the certifier functus officio, ,see GA Group Ltd v. Scottish Metropoli-
tan Property plc (1992). In certain instances the certifier may be disqualiied. his can