Is this the end of our impartial role?
When establishing a profession, it is useful to develop a role requiring independence and judgement. This point was not lost on the architects of the nineteenth century, who created the task of holding the balance between employer and contractor. Thanks to them and their engineering brethren, we inherited contractual structures whereby contract administrators carry out a curious dual role. On the one hand, there are times when an architect is under a duty to carry out his client's instructions, regardless of his own views. On the other, there are times - generally when certifying - when the architect must act upon his own judgement, even if the result is detrimental to his client.
Judicial views of the latter, independent, role have shifted dramatically. In 1901, the Court of Appeal in Chambers v Goldthorpe considered whether an architect who had over-certified payment was immune from a negligence claim made by the employer. The then Master of the Rolls said that had the architect been acting as a mere agent he would have been liable. However, in certifying, the architect was exercising judicial functions, acting as a 'quasi-arbitrator', and was therefore immune.
Chambers was overruled by the House of Lords in a 1974 case, Sutcliffe v Thackrah. On virtually identical facts, the court found that there was nothing judicial about an architect's certifying function. While the employer and contractor made their contract on the understanding that the architect would act fairly and be impartial in valuing work, that did not make him a quasi-arbitrator. He therefore had no immunity from negligence claims.
Recently, even that impartiality has been questioned in the House of Lords. In Beaufort Developments v Gilbert Ash (the case which overturned Crouch, see aj 25.6.98) Lord Hoffmann considered whether certificates were conclusive, even if not expressly stated to be so. In reflecting upon matters which weighed against that conclusion he commented on the independent status of the certifier, saying: ' . . . the architect is the agent of the employer. He is a professional man but can hardly be called independent . . . the notion of what amounted to a conflict of interest was not [in the nineteenth and early-twentieth centuries] as well-understood as it is now.'
Does this judicial U-turn reflect the mood of the construction industry? If so, the days of the impartial certifier are numbered. There are several indications that Lord Hoffmann has indeed put into words what many have been thinking. Firstly, forms of procurement have been in use now for many years which tend to avoid the need for an independent certifier, for example management contracting and design and build. Secondly, employers now often appoint representatives or project managers to act unequivocally in their interests. Thirdly, adjudication has introduced an independent arbiter to deal with first-level disputes, a role which might previously have been taken by the architect.
Assuming, therefore, that the House of Lords has its finger on the pulse, it is notable that Lord Hoffmann points not to failure on the part of the certifiers, but to the industry's declining confidence in impartiality in the face of conflicting interests. Justice must not only be done, but be seen to be done. Ian Duncan Wallace qc, author of Hudson's Building and Engineering Contracts, has observed that in holding the balance between employer and contractor, architects tend to favour the latter. This might suggest over-compensation to achieve the appearance of fairness. Perhaps the time has come to accept that the traditional impartial role is becoming unsustainable. The newer roles of employer's representative and adjudicator are there to be filled. Both require judgement and expertise, but without the cloud of conflict of interest.
Kim Franklin is on holiday