Architect/Engineer Role  © Daniel Atkinson 1999

By tradition the role of the Architect/Engineer ("A/E") changes when the Employer and the contractor sign the building contract. Up to that time he or she has been acting as agent, with limited authority, for the Employer. After that time he or she assumes a more difficult task of acting for the Employer, but also ensuring that the terms of the contract are properly administered between the parties.

Every civil engineering contract is a prototype. It is constructed in a unique location. Despite endeavours at off-site fabrication, inevitably all components need to be assembled on site. Situations can therefore arise which require decisions to be made that require an appreciation of the engineering of the project. Recognition of this has lead to the unique feature of standard forms - the appointment of a third part to administer the contract - the A/E.

It is now true that rapid communication no longer requires the person with engineering knowledge to be resident on site. If this was the only role of the A/E then the role would no doubt have reduced more than it has. The function of the A/E is much wider than simply looking after the engineering. The A/E has three principal roles under the Contract

(a) as agent of the Employer

(b) as administrator of the Contract, and

(c) as adjudicator/quasi-arbiter.

In practice it is difficult to separate these functions or roles.

The A/E acts as agent of the Employer when he creates or modifies contractual rights and obligations between the Purchaser and the Contractor. If the A/E has a consultancy contract with the Employer then the express terms will dictate the obligations of the consultant agent to his principal the Employer. In the absence of any express contractual terms, the agent as a matter of law holds the explicit duties to his principal.

The A/E administrative role involves the exercise of engineering judgement and requires knowledge of the working practices of the industry. In one sense this function has the attributes of both the other functions.

The A/E has a quasi-arbitral role. He is part of the necessary machinery to determine outstanding matters. The A/E also acts to decide other matters which may only arise during the construction of the works, for example, the effect of delays and assessment of extension of time for completion.

It used to be thought that when the A/E carried out certain duties under the contract he or she was immune from any action against him in negligence by either party. He or she was said to be "acting in a quasi-arbitral capacity". If such a situation ever existed it was changed by the well known case of Sutcliffe-v-Thackrah (1974) 4 BLR 16.

In London Borough of Merton-v-Stanley Hugh Leach ltd (1985) 32 BLR 51, Vinelott J explained the Architect’s role still further and stated that the building owner does not undertake that the architect will exercise his discretionary powers reasonably, but that he will leave him free to exercise his discretion fairly and without improper interference.

It had been thought that the Contractor was entitled to relief where there had been collusion between the Engineer and Employer. The old case of Hickman - v - Roberts (1913) shows an extreme example of collusion. The Architect had to consider claims presented by the Contractor. Written evidence showed he was predisposed to reducing the amount of the claim, and had succumbed to pressure from the Employer and had refused to act independently. It was held that the contractor was entitled to relief.

There have been significant developments in the law of tort since then. In the recent Court of Appeal decision in Pacific Associates -v- Baxter (1990), it was considered that these older cases in which the Engineer was held to be liable for refusing to act independently where there was a collusion with the Employer, were out of step with modern law.

In Michael Sallis - v - Calil (1988), at the trial of a preliminary issue of whether any duty of care was owed to the Contractor, it was held that the Architect would owe no such duty of care, but that the Architect did owe the duty to act fairly as between the Employer and Contractor.

The law seems to have developed since these cases. In Portsea Island Mutual Co-operative - v - Brashier Associates (1989), his honour Judge John Newey summarised the direction which the law of tort had taken by stating that a consideration tending strongly to negative the existence of a duty in tort owed by the defendant was that at the material time he owed a duty in contract either to the plaintiff or to someone else.

The Court of Appeal judgment in Pacific Associates Inc and Another-v-Baxter and Other (1988) 44 BLR 33 concerned dredging work in the Dubai Creek Lagoon by Pacific Associates, through its subcontractor, for the ruler of Dubai. The Engineer was Halcrow International Partnership. The contract was on the FIDIC Standard Form (1969 edition). Pacific and its subcontractor started an action against Halcrow. It alleged that, in failing to certify and rejecting their claim, the Engineer acted negligently or alternatively, was in breach of its duty to act fairly in administering the contract.

It was held that there was no cause of action against the Engineer and the Court of Appeal upheld that decision.  The Court of Appeal held that the Engineer had a duty to act in accordance with the constructional contract, but that duty arose from the contract between the Engineer and the Employer. The contractor could challenge the performance of the Engineer by claiming against the Employer. There was, therefore, no justification for superimposing on the contractual structure liability in tort.

The key to the judgement in respect of development of the law is in the words "unnecessary for the fair working of that relationship .... as expected and intended". Ralph Gibson LJ was not prepared to allow relief on the basis of collusion as in the above case of Hickman.   It was suggested that these cases are out of step with modern law but pointed to possible actions in the tort of interference in contract.

There are older cases which deal with interference by the Employer with the certifier's impartiality. In Minster Trust Ltd -v- Traps Tractors Ltd (1954) Devlin J held that there was an implied term that the parties would not do anything to prevent the certifier acting independently. The case of John Mowlem & Co plc -v- Eagle Star Insurance Co Ltd confirms that such a term will be implied into a contract if it is necessary having regard to the express terms of the contract. There is little case law yet on the Engineer's interference with the Employer or Purchaser.

The tort of interference occurs when without lawful justification, a person intentionally interferes with a contract between two others by persuading one of the parties to break his contract or if by some unlawful act he directly or indirectly prevents one of the parties from performing his contract.

The contractor will normally be satisfied with an action for breach of contract against the employer induced to breach his contract. However if the employer is unable to pay all the damages, the contractor may then have good reason to pursue the Engineer.  It may also be that the damages for which the employer is liable are limited by factors which do not limit the liability of the Engineer.

This area of the law is in a stage of development, and is particularly relevant in present times, when many employers have become insolvent. This was the case in John Mowlem & Co plc - v - Eagle Star Insurance Co Ltd (1992).

Two significant points arise from the judgement. The first is that following cases such as Mekor Island Shipping Corporation -v- Laughton (1983), the tort extends to prevention of performance of a primary obligation, even though a secondary obligation to make monetary compensation does not arise because of some contractual term. In other words the tort is actionable even if the consequence is not a breach of contract by the contracting party interfered with, and the party is not liable in damages. It is enough that the party is prevented or hindered from performing his contract. Interference with the execution of the contract is enough. It is in this very situation when the Contractor cannot claim damages for breach of contract from the Employer that the Contractor will wish to seek relief from the Architect, Engineer or Project Manager.

The second significant point is that the passage on conspiracy was not struck out of the statement of claim.