Architects have important duties as contract administrators under JCT and similar contracts. It is well known that in making decisions and issuing certificates, a contract administrator is under a duty to act fairly, and to express his or her own opinion, independently of what the client thinks (Sutcliffe v Thackrah, 1974). What is not so well known is what the requirement of independence actually involves.There is a common misconception that independence means that your client is not allowed to put forward a point of view.
Here is a typical expression of the common thinking from an edition of Capricode (the plan of work for health buildings): 'Health authorities must not seek to influence the decisions of the supervising officer.' This guidance from Capricode cropped up in one of the recent cases concerning the Royal Brompton Hospital (judgment number seven, 18 December 2000). The employer's representatives called a meeting at which they expressed some views about proposed extensions of time. The architects dutifully said they would not listen, and that they should not even be at the meeting.
But can this be right?
Suppose a contractor has put in a written claim for 40 weeks' extension of time.
The contractor's document contains detailed arguments in support of his claim. According to the common view, the employer is not allowed to say anything. The architect must hear one side only, and make their mind up. The contractor may regard that as very fair, but could anything be more unfair to the employer?
The problem stems from an over-reaction to a case decided before the First World War (Hickman v Roberts, 1913). The employer found himself in what was delicately termed an 'unfortunate position'. So he instructed the architect to delay issuing certificates and to restrict the amounts certified. The architect succumbed to the instructions. He wrote to the contractor:
'Had you not better call and see my clients because, in the face of their instructions to me, I cannot issue a certificate, whatever my own private opinion in the matter.'
The House of Lords said that was wrong. The architect's function under the contract was to make the decision himself. He should have preserved his independence.The influence exercised by the employer was inconsistent with the architect's position as independent certifier.
But notice the nature of the influence. It was not a matter of opinion, it was an instruction.
That was why it was wrong. No one suggested that there would have been anything wrong if the employer had simply expressed his views to the architect and left the architect to decide.
The judges in other well-known cases have said much the same thing and, usefully, they have given examples so there should be no misunderstanding. In Minster Trust v Traps (1954), the example was: 'If a building owner makes the obligation of payment conditional on his architect's certificate of quality, he must not instruct his architect not to be content with less than three coats of paint.'
In Burden v Swansea (1957), the examples of objectionable conduct by the employer were, 'refusing to allow the architect to go onto the site for the purpose of giving his certificate, or directing the architect as to the amount for which he is to give his certificate or as to the decision which he should arrive at'.
It is instructions from the employer about how to certify that are objectionable.There is nothing wrong with the employer providing information or expressing a view. As the judge said in the Royal Brompton case, when the architects were considering granting an extension of time, it was quite proper for the project managers to bring any relevant information to the architects'notice and to express their opinion to them.
The main thing to remember is that while it is important to preserve your independence, there is no justification for acting unfairly.That means, if you hear the contractor's viewpoint on the appropriate length of extension, you should give the employer an opportunity to express any views that he or she might have.