How final is the final certificate?
JAD Hayward (AJ 12.04.01) has raised an interesting issue, which remains unresolved after at least 40 years.
At the end of the job a final certificate is issued to the contractor.What this does in law is to transfer all the responsibilities for the workmanship, both good and particularly bad, on to the shoulders of the architect who bears the cost of putting the work right unless it can be proved that defects are latent or have been deliberately concealed.
If you issue the final certificate you vouch for the quality of all the workmanship in a job.
In the House of Lords judgment in East Ham v Bernard Sunley (1965), Lord Pearson said: 'Prima facie the contractors should be and remain liable for their own breaches of contract, and should not have a general release from liability in respect of all breaches which the architect should have detected but failed to detect throughout the currency of that contract.'
The East Ham case concerned bad workmanship. Portland stone cladding fell off the facade of Plashet Grove School in East Ham some years after the final certificate had been issued. After removing some of the stones, clear evidence was found that the contractor had failed to carry out the works properly. All the stonework was removed from the facades and rebuilt. East Ham Corporation sued the contractor.
The contract was under seal, signed on 30 May 1952, and it was the wording of that contract that enabled the final certificate to be reopened.
East Ham won the first High Court hearing, but the contractors won the appeal on the grounds that, although they admitted the bad workmanship, it was negligence on the part of the architect in not stopping them carrying out the bad work.
While the East Ham case was going through the courts the standard form of contract was revised which made the final certificate final and binding in the 1963 form.
I don't believe the RIBA realised what it was letting us in for. Not a lot has changed since. But there is another dimension today - that of the public interest.
It must be against the interests of clients and the public to have a contract that, in effect, is an invitation to contractors to hide poor workmanship until the issuing of the final certificate. If it doesn't come to light almost immediately afterwards it is extremely difficult to argue it in the courts.
The architect will have to say the defects are 'latent' and the contractor will say they are 'patent'.
This issue would give theARB something to get its teeth stuck into.A change in the wording regarding the final certificate is in the public interest, which is the ARB's remit. So what better way than for the ARB to put pressure on the JCT for a contract more in the spirit of the words of Lord Pearson all those years ago?
Sam Webb RIBA, Canterbury