Civil Engineering Reference
In-Depth Information
view be supported. The letter of 23rd April 1992 was written on the basis of a simple com-
parison of sums which had been claimed at some earlier date but not then certified and were
subsequently certified or otherwise allowed by the engineer. Such an exercise does not, without
more, demonstrate any failure by the engineer to fulfil his contractual obligations. The scheme
of the contract, including clauses 52, 60 and 66, recognises that prior to the final certificate
there will be an on-going assessment of the works and their value and the sums to which the
contractors are entitled. The contractors have not so far attempted to prove or even, so far as
I can tell, allege that the engineer in some way disregarded his contractual obligations. The
award accepted the indiscriminate approach of the contractors and accordingly, quite apart
from the other points that have been raised, cannot stand in its present form . . .
However, I must respectfully disagree with the statement of that extremely experienced
official referee that:
if the arbitrator revises his certificate so as to increase its amount it follows that the engineer
has failed to certify the right amount.
To take the simplest example, it may be that different evidence is available to the arbitrator to
that which was available to the engineer and that the engineer on the material available to him
arrived at the correct conclusion. If on the other hand the basis of the refusal by the engineer
to certify certain sums is a construction which the engineer placed upon the contract and the
arbitrator subsequently holds that the construction was wrong, then it does not follow that
the engineer has failed to certify in accordance with sub-clauses (2) and (3); he has failed to
perform his obligations under the contract in accordance with the terms of the contract.
Nature and effect of certificates
In considering the effect of certificates there is a fundamental distinction between interim and
final certificates. Interim certificates generate a right to payment but as their name suggests
they are in many respects provisional. Final certificates may however be final. How final
depends on the precise wording of the contract.
East Ham Borough Council v. Bernard Sunley & Sons Ltd
HOUSE OF LORDS
[1965] 3 All ER 619
Sunley erected a school for the council under RIBA terms. Clause 24 provided:
. . . (f) Upon expiration of the defects liability period . . . the architect shall . . . issue
a final certificate and such final certificate . . . save as regards all defects and insuf-
ficiencies in the works or materials which a reasonable examination would not have
disclosed, shall be conclusive evidence as to the sufficiency of the works and materi-
als. (g) Save as aforesaid no certificate of the architect shall of itself be conclusive
evidence that any works or materials to which it relates are in accordance with this
contract.
