|Judgment - Beaufort Developments (NI) Limited v. Gilbert-Ash NI Limited and Others continued|
|(back to preceding
If the certificates are not conclusive, what purpose do they serve ? If one considers the practicalities of the construction of a building or other works, it seems to me that parties could reasonably have intended that they should have what might be called a provisional validity. Construction contracts may involve substantial work and expenditure over a lengthy period. It is important to have machinery by which the rights and duties of the parties at any given moment can be at least provisionally determined with some precision. This machinery is provided by architect's certificates. If they are not challenged as inconsistent with the contractual terms which the parties have agreed, they will determine such matters as when interim payments are due or completion must take place. This is something which the parties need to know. No doubt in most cases there will be no challenge.
On the other hand, to make the certificate conclusive could easily cause injustice. It may have been given when the knowledge of the architect about the state of the work or the effect of external causes was incomplete. Furthermore, the architect is the agent of the employer. He is a professional man but can hardly be called independent. One would not readily assume that the contractor would submit himself to be bound by his decisions, subject only to a challenge on the grounds of bad faith or excess of power. It must be said that there are instances in the 19th century and the early part of this one in which contracts were construed as doing precisely this. There are also contracts which provided that in case of dispute, the architect was to be arbitrator. But the notion of what amounted to a conflict of interest was not then as well understood as it is now. And of course the inclusion of such clauses is a matter for negotiation between the parties or, in a standard form, the two sides of the industry, so that what is acceptable will to some extent depend upon the bargaining strength of one side or the other. At all events, I think that today one should require very clear words before construing a contract as giving an architect such powers.
The language and practical background of the JCT contract does not therefore suggest that any certificates other than the final certificate were intended to have conclusive effect. I return, therefore, to clause 41.4, from which the Court of Appeal in the Crouch case drew the opposite conclusion. It is worth noticing in passing that, in addition to the power to "open up, review and revise," it also confers express powers to rectify the contract and to direct measurements and valuations. It seems plain that the reason for the inclusion of these powers in clause 41.4 is to confer upon the arbitrator the plenitude of power to "determine the rights of the parties" which would be possessed by a court. If the power to "open up, review and revise" was intended to be peculiar to the arbitrator, it would at any rate be different in its purpose from the other powers.
At this stage, however, I wish to refer to an important authority on a clause in similar language which may be taken to have formed part of the background to the inclusion of clause 41.4 in the JCT Standard Form Contract 1980 edition which was used in this case. It is Robins v. Goddard  1 K.B. 294. This concerned an R.I.B.A. form of contract, of which clause 17 dealt with defects "arising in the opinion of the architect from materials or workmanship not in accordance with the drawings or specification." It provided that the contractor should make good such defects at his own cost "unless the architect should decide that the contractor ought to be paid for the same." The contract also included an arbitration clause which conferred power to "open up, review and revise" any certificate, opinion etc. of the architect. The contractor sued upon unpaid architect's certificates and the employer counterclaimed on the ground that the work done and materials supplied were not in accordance with the terms of the contract. Farwell J. held that the fact that the architect had not expressed an opinion in accordance with clause 17 that the work and materials were not in accordance with the contract was conclusive and that the court therefore had no jurisdiction to entertain the counterclaim.
Mr. Duke K.C. argued for the contractor that the contract meant that "the certificate of the architect is to be final unless and until it is appealed under the arbitration clause." He mentioned one express exception in the contract but said that "in all other cases the certificates are final so long as the only mode of reviewing them by means of the arbitration clause is not adopted." In other words, he was contending for precisely the two-tier system of conclusive determination which the Court of Appeal adopted in the Crouch case.
The Court of Appeal unanimously rejected this argument. In fact, they stood it on its head. Collins M.R. said that the arbitrator's power to open up review and revise showed that the architect's certificates were not intended to be conclusive at all. And if they were not conclusive, they were no more conclusive in litigation than in arbitration. The power to open up and review, said the Master of the Rolls, at p. 301, "negatives the contention that the defendant is debarred by the certificates of the architect from setting up bad workmanship on the building and the introduction of improper materials." It followed that he could challenge them in an arbitration or, if there was no arbitration, before the court. Stirling L.J. said, at p. 303 that, rather as I have suggested to your Lordships is the case with the J.C.T. contract in this case, the language of the rest of the R.I.B.A. contract did not support the view that certificates were intended to be conclusive. But, he added: "When we come to the arbitration clause the matter is free from doubt." The effect of the power to open up and revise was that:
I have said, my Lords, that Robins v. Goddard  K.B. 294 is an important case. This is not because it lays down any proposition of law but because it tells us what the Court of Appeal, nearly a century ago, when the "open up, review and revise" formula seems to have been relatively new, thought that it was intended to do. Not, as the Court of Appeal said in Crouch, to enable certificates otherwise conclusive to be revised by an arbitrator and no one else, but to make it clear that such certificates were not conclusive at all. The court clearly took the view that the draftsman had seen no need to confer an express power on the court in the same terms as the arbitration clause. The court's jurisdiction was unlimited. It was the arbitrator's powers which need to be spelled out. On this view, the power to open up, review and revise falls into place alongside the other powers conferred by clause 41.4 as a power which a court would in any event possess.
During the 80 years between Robins v. Goddard and Crouch  Q.B. 644, I can find no authority in which a construction inconsistent with the earlier case was adopted. In Neale v. Richardson  1 All E.R. 753 similar reasoning was used in a case in which the question was whether the contractor could sue without a certificate which the architect had refused to issue. The arbitration clause empowered the arbitrator to decide all disputes, which, on the authority of Brodie v. Corporation of Cardiff  A.C. 337, the court construed to include disputes as to whether or not a certificate should have been issued. There had been no arbitration because the arbitrator (who was also the architect) refused to act, but the court decided in general terms that the non-issue of the certificate was not conclusive and therefore if the arbitrator had power to decide that the money was owing, the court must have it also. Scott L.J. said, at p. 758:
It is true that Robins v. Goddard seems to have been a cause of perplexity to some members of your Lordships' House in East Ham Corporation v. Bernard Sunley & Sons Ltd.  A.C. 407. Lord Upjohn in particular said (at p. 441) that he found it a "rather difficult case" and that while not doubting the actual decision, he did not find it easy to follow some of the observations in the judgments. Lord Pearson also said (at p. 447) that the effect of the case was not clear. I venture to suggest that the problem lay not so much in what Robins v. Goddard decided but the extraordinary proposition for which counsel was seeking to rely upon it in the East Ham case. He appears to have submitted that even if the contract expressly made a certificate conclusive (as did the contract in the East Ham case) but conferred upon an arbitrator a special power to revise it, the court would automatically acquire a similar power if the matter was litigated. In other words, a two-tier structure of conclusive certificates could not be created even by express language. Viscount Dilhorne dealt with the matter accurately and concisely when he said, at p. 424:
P. & M. Kaye Ltd. v. Hosier & Dickinson Ltd.  1 W.L.R. 146, another decision of this House, also concerned a final certificate expressly declared by the contract to be conclusive. The arbitration clause (clause 35) gave the arbitrator power to decide any dispute including "any matter or thing left by this contract to the discretion of the architect" but there had been no request for arbitration. The House held that a final certificate was conclusive not only in relation to any later litigation but also in relation to litigation already commenced. Your Lordships are not concerned with this aspect of the decision, but Lord Wilberforce said near the end of his speech, at p. 158:
I understand Lord Wilberforce to have meant that the contract in question, which expressly declared final certificates to be conclusive but gave an arbitrator a special power to revise them, had successfully created a two-tier structure of binding certificates. There is nothing to support the view that certificates which are not said to be conclusive or binding can be assumed to have such effect merely because the arbitrator is given an express power to open up and revise them.
In Gilbert-Ash (Northern) Ltd. v. Modern Engineering (Bristol) Ltd.  A.C. 689 the issue was whether a contractor, sued by a sub-contractor on interim certificates, could set off an unliquidated claim for damages for late and defective work. The Court of Appeal had held in a number of decisions that there was a strong presumption (amounting, as Lord Diplock said (at p. 717) virtually to a rule of law) that the contract excluded the right of set off. The House overruled these cases, Lord Diplock saying, at p. 717 that so far from there being a presumption that set-off was excluded:
It was submitted to your Lordships that this presumption supports an argument that the contract should be construed so as to preserve the common law remedies of the parties for breach of contract rather than making their rights subject to the binding decision of the architect. But I think that such an argument may be circular: if the decision of the architect is as conclusive as that of an expert, subject only to second-tier revision by an arbitrator, then the rights of the parties are defined by reference to the opinions of the architect or arbitrator and there is no question of any independent breach of contract. More to the point, however, is a later passage in Lord Diplock's speech, in which he referred to the power of an arbitrator to open up, review and revise any certificate and went on to say, at p. 720:
This passage seems to me a clear and explicit statement that in the case of a certificate expressly stated (by the equivalent of clause 30.10 of the JCT contract) not to be conclusive, the court has exactly the same right to interpret the contractual obligations of the parties as an arbitrator would have had.
This was the state of the authorities at the time when Crouch came before the Court of Appeal. Dunn L.J. introduced his discussion of this question by saying, at p. 663: "Perhaps surprisingly there is no direct authority on the point which is binding on us." He made no reference to Robins v. Goddard  K.B. 294 and appears to have regarded the issue as being, not whether the certificates were conclusive in the first place, but whether (assuming them to be conclusive) one could imply into the contract a term that the court was to have the same power to revise them as the arbitrator. Not surprisingly, he rejected the implication of such a term. Browne-Wilkinson L.J. also made no reference to Robins v. Goddard, agreed that there was no authority directly in point and said, at p. 669 that his view was supported by the "weight of judicial dicta." Sir John Donaldson M.R. did refer to Robins v. Goddard, but only in relation to the comments upon that case in East Ham Corporation v. Bernard Sunley & Sons Ltd.  A.C. 406. He mentioned the comment of Viscount Dilhorne as to the proposition which Robins v. Goddard did not support but made no reference to his summary of what the case actually decided. It was the latter which was, in my opinion, binding upon the Court of Appeal in Crouch and should have been determinative on the question before them. None of the judges made reference to what Lord Diplock had said in Gilbert-Ash (Northern) Ltd. v. Modern Engineering (Bristol) Ltd.  A.C. 689, although it appears from the report (at p. 649) that counsel drew attention to the passage and submitted (in my view rightly) that it supported the proposition that
In my opinion, therefore, the dicta on this point in Northern Regional Health Authority v. Derek Crouch Construction Co. Ltd.  Q.B. 644 were both obiter and wrong. Since then, however, 14 years have passed and the building industry has lived with the Crouch construction of the standard building contracts. There have also been legislative changes. Section 43A of the Supreme Court Act 1981, inserted by section 100 of the Courts and Legal Services Act 1990, provides that if all parties agree, the High Court may exercise any specific powers which the contract confers upon an arbitrator. The discretion of the court to refuse a stay on the grounds of an arbitration clause has been abolished by section 9(4) of the Arbitration Act 1996, which provides that "a stay must be granted unless the arbitration agreement is null and void, inoperative, or incapable of being performed." This provision is subject to section 86, which excludes its operation in domestic operations and retains the court's discretion. Section 86 has not however been brought into force and it is not clear whether it will be. For the moment, the mandatory stay required by section 9(4) appears to be of general application. So the possibility of litigating contracts containing an arbitration clause except by the consent of all parties has been much reduced.
Nevertheless, it seems to me that cases since Crouch show that the decision has caused such uncertainty and even injustice that its dicta should be disapproved. I refer in particular to the recent decision of the Court of Appeal in Balfour Beatty Civil Engineering Ltd. v. Docklands Light Railway Ltd. (1996) 78 B.L.R. 42. It was a claim for extension of time and loss and expense under the ICE Conditions of Contract, which had been amended, first, by substituting the employer's representative for the engineer and secondly, by deleting the arbitration clause. The contract provided for the employer to certify extensions of time and loss and expense claims. But there was no provision that they were to be binding or conclusive. Nevertheless, the court held that there was no power to "open up, review or revise" them such as an arbitrator might have had if there was an arbitration clause in the usual form and that, as a matter of construction, "the Contractor's entitlement was to depend upon the Employer's judgment.": per Sir Thomas Bingham M.R. at p. 57. Your Lordships will remember that in Benstrete Construction Ltd. v. Angus Hill (1987) 38 B.L.R. 115, 118 Sir John Donaldson M.R. appeared to be saying that the Crouch construction of the certification clauses as conclusive in litigation was based upon the fact that the contract created an "internal arbitration." But in the Balfour Beatty case the contractors were held, even in the absence of an arbitration clause or any express language as to the certificates being conclusive, to have subjected themselves to the judgment of the employer. It is true, as Sir Thomas Bingham M.R. remarked, at p. 57, "It is not for the court to decide whether the contractor made a good bargain or a bad one; it can only give fair effect to what the parties agreed." On the other hand, in deciding exactly what the parties did agree, it seems to me that in the absence of express language, one should not assume so uncommercial a bargain. I do not think that the Balfour Beatty case would have been decided as it was if not for the shadow of the Crouch decision that certificates, even if not declared to be conclusive, can be questioned only for bad faith or excess of power. I do not think that anyone in the industry can be said to have acted in reliance on the Crouch case and I would therefore overrule it. I must acknowledge the assistance which I have had in reaching this conclusion from the writings of Mr. I.N. Duncan Wallace Q.C.
The significance of doing so in the present case can be briefly stated. Beaufort Developments Ltd ("the employer") entered into a contract dated 3 May 1994 with Gilbert-Ash N.I. Ltd. ("the contractor") for the construction of a nine-storey office block in Belfast. The contract was in the standard JCT form, 1980 edition Private Without Quantities. By a separate contract it employed the firm of Parker & Scott ("the architects") as architects. The Works were not completed on time; an outcome for which the contractor blamed the architects and the employer blamed them both. For example, some work had to be done over again and there are disputes over whether this was on account of the contractor's bad workmanship or use of wrong materials or the architects' failure to provide adequate drawings and information. There is also a dispute over whether this and other matters actually caused the delay in completion. The contractor claimed that it was entitled to payment from the employer, both under certificates issued by the architects for work done under the contract and by way of payment for extra work. The employer claimed that it was entitled to damages against contractor and architects for breach of contract.
Litigation commenced on 31 August 1995 when the contractor issued a writ claiming about £230,000 and interest due under six architects' certificates. On 9 October 1995 the employer served an unilluminating defence, denying liability and alleging that it was entitled to set off a cross-claim in a larger amount. On 15 November 1995 the contractor served a notice to refer and concur in the appointment of an arbitrator pursuant to the arbitration clause in the contract. It referred in general terms to the areas of dispute such as the responsibility for delay and the contractor's claims to payment for extra work. On 5 December 1995 the employer issued a writ which named both the contractor and the architects as defendants. It claimed damages for negligence and breach of contract. On 7 February 1996 the contractor issued a summons for a stay of the employer's action pursuant to section 4 of the Arbitration Act (N.I.) 1937. The agreement between the employer and the architects also contained an arbitration clause but the architects did not make a similar application.
Master Wilson granted the stay and on appeal his decision was affirmed by Pringle J. He did so with reluctance because he said that the architects could not be required to take part in the arbitration between the employer and the contractor and there was a very real risk of conflicting decisions in the arbitration and the litigation against the architects. But he considered that he was bound by the Crouch case  Q.B. 644 to hold that an arbitrator would have the power to "open up, review and revise" certificates or opinions of the architect which the court did not possess. If a stay was refused, the contractor would therefore be at a "grave disadvantage in that it will be faced with architect's certificates which the court will not be able to review." In the Court of Appeal, Carswell L.C.J. prefaced his judgment by saying:
As in my opinion the Crouch case was wrongly decided, I think that the discretion should have been exercised as Pringle J. would have done if he felt free to do so. I would therefore allow the appeal.
LORD HOPE OF CRAIGHEAD
The application by Gilbert-Ash NI Ltd. ("the contractor") for a stay of the action by Beaufort Developments (NI) Ltd. ("the employer") was made under section 4 of the Arbitration Act (Northern Ireland) 1937. The grant of a stay under that section is discretionary. It is plain from the reasons which Pringle J. gave for affirming the Master's decision to grant the stay that he would have refused the application had it not been for the decision of the Court of Appeal in Northern Regional Health Authority v. Derek Crouch Construction Co. Ltd.  1 Q.B. 644. As he pointed out, the circumstances in the present case are very similar to those in Taunton-Collins v. Cromie  1 W.L.R. 633.
In that case, as here, the contract between the employer and the contractor contained an arbitration clause. The architect, in response to the employer's claim against him, put part of the blame for the unsatisfactory building on the contractor. The employer then joined the contractor as a defendant to his action against the architect. The contractor's application for a stay in reliance on the arbitration clause was refused by the official referee, and an appeal against his decision was dismissed. This was because to grant a stay would have resulted in two sets of proceedings. There would have been an arbitration as against the contractor and an action as against the architect. There would have been a substantial risk of different decisions on the same question and on the same facts. Pearson L.J. said, at p. 638 that there were very strong reasons based on the principle of avoiding a multiplicity of proceedings for permitting the action to continue as an action by the employer against both defendants.
Pringle J. noted that there were many issues of fact to be determined in the present case. They included the reasons for the delay which had occurred in the completion of the works by the contractor, the standard of workmanship and materials and the question whether acceleration of the works had given rise to additional costs. He said that he could foresee very considerable difficulties in dealing with these issues, and that in his opinion the risk of conflicting decisions was a very real one. Nevertheless he felt obliged to uphold the stay in view of the consequences to the contractor of the decision in the Crouch case if the dispute between it and the employer were not to be dealt with by an arbitrator. The Court of Appeal decided, with some hesitation, to follow the decision in the Crouch case. But Carswell L.C.J. made it clear in the course of his judgment that the court had considerable reservations about the soundness of that decision. He said that, if the matter were res integra, he would have been attracted to an interpretation of the contract which would have avoided the need to go to arbitration to avoid injustice to the contractor.
The situation in this case has therefore brought out into the open difficulties created by the decision of the Court of Appeal in the Crouch case which have been lying not far below the surface since it was made. The fundamental question is whether the court has been deprived, by the power which the parties have given to their arbitrator to open up, review and revise certificates, opinions and decisions of the architect, of its ordinary power to determine the rights and obligations of the parties and to provide them with the usual remedies. In the Crouch case  Q.B. 644, 667D Browne-Wilkinson L.J. said:
I shall return to this passage later when I come to examine that case in more detail. For the time being it is sufficient to notice that the basis for this view is the difference which was said to exist between the powers of the court and those conferred by the agreement of the parties on the arbitrator. The power of the court, it was said, was to enforce the contract, while the arbitrator had been given the power, which the court does not possess, to modify it. This proposition has come to be applied generally to all cases where the arbitrator has been given power to open up, review and revise certificates.
The contract in the present case was entered into under the JCT Standard Form of Building Contract 1980 Edition (Private without Quantities). It incorporated amendments numbers 1 to 12 together with the Adaptation Schedule for Northern Ireland and the Contractor's Designed Portion Supplement. By article 5 of the Articles of Agreement the parties agreed to refer their disputes to arbitration in accordance with clause 41 of the Conditions. Clause 41.4 of the Conditions, so far as relevant to this case, provides:
Clause 41.5 provides that, subject to clause 41.6 which enables either party to appeal to the High Court on any question of law, the award of such arbitrator shall be final and binding on the parties. Clause 30 deals with certificates and payments to the contractor. Clause 30.9 makes provision as to the effect of the final certificate, while clause 30.10 makes provision as to the effect of certificates other than the final certificate. Clause 30.9 provides that, except in certain circumstances, the final certificate shall be conclusive evidence "in any proceedings arising out of or in connection with the contract (whether by arbitration under article 5 or otherwise)" as to various matters about which decisions have had to be made by the architect under the contract. Clause 30.10 provides:
Had it not been for the weight of contrary authority I would not have found much difficulty in reaching the following conclusions about the effect of these provisions relating to the powers of the arbitrator and the finality to be given to certificates. In the first place, the function of clause 41.4 is to define the powers which are to be given to the arbitrator. An arbitrator has no jurisdiction except that which the parties choose to confer upon him by their agreement to refer their disputes to an arbitrator. The whole question as to the extent of his powers rests upon contract. So it is necessary that the agreement should set out all the powers which he is to have in order that he may determine all the matters which are in dispute. But it is not to be thought that by conferring powers on the arbitrator the parties are limiting the ordinary powers of the court to determine their rights and obligations under the contract. In the present case, for example, clause 41.4 gives power to the arbitrator to rectify the contract. The court already has that power, but it might well have been in doubt as to whether the power of the court could be exercised by the arbitrator. There is nothing in clause 41.4 to suggest that, by conferring this power on the arbitrator, the parties intended to remove this power from the court.
Then there are the provisions about the certificates. In the present case the contractor seeks payment of the sums certified as due for payment under six interim certificates. It appears that it will also seek to maintain a claim against the employer for additional costs which are not the subject of any certificate by the architect. The employer for its part claims, by way of set off against any sums due to the contractor, amounts in respect of delay in completion of the construction and fitting out works and damages for breach of its obligation to provide materials and workmanship to the standard which the contract required. These are matters about which the contract provides for decisions to be taken or opinions to be given by the architect. But there is no express contractual provision to which one can point which has the effect of giving finality to the various decisions and opinions which he has made. We are not concerned in this case with any question as to the conclusive effect of the final certificate because, although a certificate of practical completion was issued in June 1996, the final certificate has not yet been issued. It is made quite clear by clause 30.10 that the interim certificates which the architect has issued are not of themselves to be conclusive evidence.
On this approach, if there is no stay, the court will be able to exercise all its ordinary powers to decide the issues of fact and law which may be brought before it and to give effect to the rights and obligations of the parties in the usual way. It will have all the powers which it needs to determine the extent to which, if at all, either party was in breach of the contract and to determine what sums, if any, are due to be paid by one party to the other whether by way of set off or in addition to those sums which have been certified by the architect. It will not be necessary for it to exercise the powers which the parties have conferred upon the architect in order to provide the machinery for working out their contract. Nor will it be necessary for it to exercise the power which clause 41.4 confers on the arbitrator to revise certificates. This is because the court does not need to make use of the machinery under the contract to provide the parties with the appropriate remedies. The ordinary powers of the court in regard to the examination of the facts and the awarding of sums found due to or by either party are all that is required. There would be no risk of any injustice to the contractor.