Civil Engineering Reference
In-Depth Information
Accordingly, the architect must have been satisfied either that no further remedial measures
were needed at the date of the first action to bring the works into conformity with the terms
of the contract at the end of the defects liability period, or that such further measures as were
needed had been satisfactorily completed. Of the fact that his satisfaction was reasonable, the
final certificate was conclusive evidence. By the time of the hearing of the preliminary issue
the employers had lost their opportunity to dispute this and, accordingly, of proving their
claim, which had been prematurely advanced, for the cost of any remedial measures. The final
certificate, however, was irrelevant to the claim for consequential damage. It could have no
effect on it.
In the second action, brought after the date of the final certificate, identical claims were
made in the defence and counterclaim, except that the date at which it claimed that further
remedial measures were still necessary to make the works conform with the requirements of
the contract was after the expiry of the period during which the contractor would have had
the right, as well as the duty, to execute them himself. But the same principle applies. The final
certificate is conclusive evidence that all necessary remedial works had been executed by the
time of its issue. It, too, is irrelevant to the claim for consequential damage in respect of defects
which had been found during the defects liability period.
Crown Estate Commissioners v. John Mowlem & Co Ltd
COURT OF APPEAL
(1994) 40 Con LR 36
In this case the Court of Appeal had to consider the effect of clause 30.9.1 of JCT 1980
which provides:
Except as provided in clauses 30.9.2 (and save in respect of fraud) the Final Certificate
shall have effect in any proceedings arising out of or in connection with this Contract
(whether by arbitration under article 5 or otherwise) as
30.9.1.1 conclusive evidence that where the quality of materials or the standard of
workmanship are to be to the reasonable satisfaction of the Architect the same are
to such satisfaction.
(This wording follows closely that of the 1977 revision of JCT 1963. The original 1963
version was significantly more final in its wording.)
STUART-SMITH LJ: The respondents submit that the answer is to be found in clause 8.1, which
they contend contemplates that the parties will stipulate contractual criteria for the standards
and quality of work and materials. They may or may not do so, there being three possible
options:
Case A Criteria stipulated in the contract documents, for example to British Standard
Specifications.
Case B Standards and quality not stated in the contract documents in which case there is
an implied term that materials will be of a reasonable quality and fit for their purpose
and workmanship will be to a reasonable standard.
Case C Standards and quality expressed to be to the architect's satisfaction . . .
