The proper course of action is, of course, to hear both sides, but not to be unduly influenced by either, so that the contract administrator can, in those sacrosanct words laid down in the 1974 case of Sutcliffe vs Thackrah, "act fairly and impartially as between his client and the contractor".
Now, that sounds like eminent good sense, and Ron Nobbs in his recent column (25 October, page 56) suggested such a course was possible. But the Law Lords in that very same case went on to state that the contract administrator is liable to the client in the event of negligent certification. Just how easy is it to "act fairly and impartially" between the parties when one of them is holding a gun to your head?
Comparatively speaking, the contractor is armed with nothing more than a water pistol. The case of Pacific Associates vs Baxter is generally interpreted as establishing that the contract administrator owes no duty of care to the contractor in respect of negligent certification, although the case itself and subsequent case law fail to provide concrete guidelines. Of course, the architect's negligent certification could well amount to a breach of the building contract by the employer, a liability that could boomerang back on the contract administrator in any event. In addition, it is arguable that the contract administrator does owe a duty of care directly to the contractor not to be unduly influenced by the client.
Despite all this, however, it is still fair to say that the client, through its contractual link with the contract administrator, poses a far greater direct threat in respect of any negligent certification – and that must throw some doubt on the contract administrator's independence.
Just how easy is it to ‘act fairly and impartially’ between the parties when one is holding a gun to your head?
On top of that, the contract administrator often has design or other duties and, as such, is acting very much on behalf of the client. So one minute he or she can be deferring to the client and the next slapping an unwelcome certificate on it with all the lovable appeal of a traffic warden.
Add to this the fact that it is the employer that dangles the pay cheque before the contract administrator's nose. When a new tranche of fees is due it must be hard for a contract administrator to focus through the tears to sign a certificate detrimental to the employer's interests.
What we need is a change in the law. Contract administrators should be exempt from any liability (except where acting in bad faith) in respect of their certification duties – at least as long as there are means, through the building contract or dispute resolution procedures, to redress the balance between the employer and the contractor.
It would be absurd if either party, and particularly if only one party, could sue an adjudicator, an arbitrator or a judge in respect of an erroneous decision. They must be entirely free to reach the decision they consider most just, whether that turns out to be right or wrong. So why should a contract administrator, who is basically performing the same function of weighing up two parties' conflicting interests, be deprived of the same protection?
Melinda Parisotti is an in-house barrister at Wren Managers, which manages a professional indemnity mutual for architects.