Cases - East Ham Court v Bernard Sunley
Record details
- Name
- East Ham Court v Bernard Sunley
- Date
- [1966]
- Citation
- 1 AC 406
- Legislation
- Keywords
- Construction - defects - cost of reinstatement
- Summary
-
Clause 24 of the RIBA contract (1950 edition) provided that an architect's final certificate after the expiry of the defects liability period was conclusive evidence of the sufficiency of the works and materials, save as regards all defects and insufficiencies in the works and materials which a reasonable examination would not have disclosed. The defendant contractors relied on clause 24 and argued that the whole of their work under the contract was done under the supervision of the architect, the consulting engineer or the clerk of works and to their reasonable satisfaction. All the defects or faults now alleged were such that a reasonable examination should have disclosed them and accordingly, the architect's final certificate, was conclusive.
The House of Lords held that it is the architect's duty to issue the final certificate when the stipulated time arrives. The certificate is a certificate of value but, unless one of the exceptions apply, it is also to be conclusive evidence as to the sufficiency of the works and materials and, in view of clause 24(g), that is to be interpreted as meaning that they are in accordance with the contract.
Clause 24 meant the final certificate was indeed conclusive save in the exceptional circumstances stated and that even the express power of an arbitrator to open up and review or revise any certificate did not extend to opening up, reviewing or revising the final certificate.
The period during which such defects or faults should have been identified by the 'reasonable examination' in clause 24 was not limited to the date of practical completion or the end of the defects liability period but extended throughout the period of the contract works.
It was the duty of the architect generally to supervise the execution of the contract and to see that the work was properly done. To this end he could require the opening up for inspection of any work covered up. He and his representatives had the right to visit the works at all reasonable times and the contractor was under the duty to carry out such instructions as he might give.
Each month he had to certify the value of the work properly executed. It follows that at least once a month he had to examine the work done and satisfy himself that it had been properly done. Presumably he would keep himself informed of the progress of the work and, while the contract did not require him or his representatives to be always upon the site, he would regard it as his duty to go there or to send his representative there to inspect the sufficiency of the work done, particularly when an important stage of the building was being completed. He would, for instance, presumably want to satisfy himself that the foundations were in order before they were covered up.
On the occasions on which he inspected work done, whether for the purpose of issuing interim certificates or at other times, it was his duty on a reasonable examination to satisfy himself that the work had been properly done.
Given that the architect is not permanently on site, but only makes periodic visits, it is quite possible that, for whatever reason, the architect may fail to make an examination at an early stage of the building operation which would have disclosed some defect. Such a failure is not necessarily negligent - it may be due to no more than an error of judgment or a deliberately calculated risk that it was reasonable and proper to take. This should be distinguished from the situation where an architect makes no examination or an inadequate one.
If a clerk of works is employed by the building owner, he is under a duty to communicate matters which come to his attention to the architect. But he is not there as the representative of the architect: he has no architectural skills. The reasonable examination is one to be carried out by the architect, not the clerk of works.