Civil Engineering Reference
In-Depth Information
The House of Lords answered this question in the affirmative and dismissed the appeal. In my
opinion in so treating the appeal the House of Lords directed its attention to the alternative,
albeit the first alternative ground, upon which the plaintiffs in the action rested their claim.
The noble and learned Lords expressed their opinions on that point and in my opinion it is
correct to say they approved the judgment of Goddard LJ . . .
I find some comfort in the conclusion I have reached about
Panamena
from the circum-
stance that Lord Devlin was counsel in
Panamena
, both at the trial and in the two appeals.
That learned judge referred to
Panamena
in his judgment in
Minster Trust Ltd
v.
Traps Tractors
Ltd
(1954), and it would be surprising in the circumstance if, having referred to
Panamena
,
without making any such criticism as a judge of first instance may be entitled to make of a
decision of the House of Lords, he should then have added in the course of his judgment the
passages which I have cited about the implication of a term in such a contract. In my opinion
Lord Devlin must have held the same opinion of the effect of the
Panamena
judgments as I
have expressed.
I will now consider the affirmative aspect of the term which . . . the plaintiff argued must
be implied in this agreement. Fundamentally he argued it is essential to consider this aspect
against the background that the Director of Works was at all times a servant of the [govern-
ment]; that the position he occupied as certifier was part of the machinery set up by the
agreement of the [government] and the plaintiff for certifying applications for extension of
time. As such a servant of the [government] the Director of Works was obliged by law to
obey all lawful orders of [his employer] . . . If, for example, the [government] were to say to
the Director: 'You are ordered to act in a particular manner', and if that order constituted a
breach of the contractual mandate conferred on him by clause 35, the Director would
none the less be still obliged to act in compliance with the [government] order. Against this
background I will assume that the certifier, with the knowledge of both parties to the agree-
ment, acted in breach of his obligation. Could the [government] in those circumstances say:
'I will not do anything to insure that he carries out these duties'? In my opinion an applica-
tion of the test stated in
The Moorcock
(1889), would require the answer that the [govern-
ment] was contractually bound to order him to carry out his duties. In my opinion the
plaintiff and the defendant, being the parties bound by his agreement, are bound to do all
co-operative acts necessary to bring about the contractual result. In the case of the defendant
this is an obligation to require the Director to act in accordance with his mandate if the
defendant is aware that he is proposing to act beyond it. In
Mackay
v.
Dick
(1881) Lord
Blackburn said:
I think I may safely say as a general rule that where in a written contract it appears that
both parties have agreed that something shall be done which cannot effectually be done
unless both concur in doing it, the construction of the contract is that each agrees to do all
that is necessary to be done on his part for the carrying out of that thing, though there may
be no express words to that effect.
I am accordingly of the opinion that a term must be implied in the present agreement binding
the defendant to insure that the Director of Works, its servant, performs his duties under clause
35 in accordance with this mandate.
The liability of an employer for delay by the architect in issuing interim certificates depends
on the knowledge of the employer.
