Civil Engineering Reference
In-Depth Information
been done and used under the contract. An essential question must be, what standard is to be
set? If the proper standard to which that work and those materials ought to conform were one
to be fixed by the court (for example, by reference to what is reasonable), I could see good
reasons for not allowing this matter to be decided conclusively outside the court by another
person. But that is not what the contract provides. Throughout the contract, the architect is
the person to pronounce on these matters. This appears right from the inception: in clause
1(1) where it is said that the works are to be carried out and completed (it may be noted that
this language is repeated in clause 30(7)) to the reasonable satisfaction of the architect; and
as regards materials it is for the architect to be satisfied that they are in accordance with the
contract bills. This being so, what objection can there be to a clause which provides that, as
regards these matters, as to which it is the architect's standard that is relevant, the architect's
final certificate is to be conclusive evidence? The court has to find the facts. It has to do so in
accordance with the contract. The clause provides a means - the means - of establishing the
facts. The court retains ultimate control in seeing that the architect acts properly and honestly
and in accordance with the contract. The method of proof, chosen by the parties, is legitimate,
and by its terms binding, and I can see no reason for denying the contractual effect of the
evidence to proceedings previously commenced, or, as I would prefer to put it, for reading in
a limitation to subsequent proceedings. Allowing to
Doleman & Sons
v.
Ossett Corporation
its
full force (and I note that four very eminent judges were equally divided even there) the present
case is altogether different.
LORD DIPLOCK (dissenting): Clause 30(7) nevertheless provides that the final certificate shall
be 'conclusive evidence' not only of a matter to which it does refer, i.e. the adjustment of the
contract sum, but also a matter to which it does not refer at all, i.e. 'that the Works have been
properly carried out and completed in accordance with the terms of this Contract'. In their
natural meaning, it seems to me that these words are dealing not primarily with the activities
of the contractor but with the state of the works as a result of the activities of the contractor,
and are dealing with their state at the time of issue of the certificate. They mean no more than
that the works are in accordance with the contract drawings and contract bills, subject to any
variations authorised by the architect under clause 11, and that the workmanship and materi-
als are of the quality required by the contract. They do not mean that at no time previously
to the issue of the final certificate were there defects in the works which required remedying
and had been remedied, for sub-clause (6) expressly contemplates that the final certificate
must be issued notwithstanding this; and the parties should not lightly be held to have
intended the final certificate to be conclusive evidence of the truth of anything that the certifier
knew to be a lie.
This being, as I think, the natural meaning of the words directly under consideration, I
return to see whether it requires to be qualified because of the remaining provisions of sub-
clause (7). It is to be observed that the final certificate is to have no evidential value as to any
of the matters referred to in the latter part of the paragraph unless -
a written request to concur in the appointment of an arbitrator shall have been given under
clause 35 of these Conditions by either party before the Final Certificate has been issued or
by the Contractor within 14 days after such issue . . .
This is obviously an elliptical phrase. 'A written request to concur in the appointment of an
arbitrator' forms no part of the procedure in referring a dispute to arbitration under clause
