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LONDON BOROUGH OF MERTON v STANLEY HUGH LEACH Ltd

Building Law Reports

  
  
  
  
  
  


LONDON BOROUGH OF MERTON v STANLEY HUGH LEACH Ltd
 
 
20 December 1985
 
Chancery Division
 
Vinelott J
 
Stanley Hugh Leach Limited (the contractor) agreed with London Borough of Merton (Merton) to construct 287 dwellings. The contract was made in 1972 in the JCT Standard Form, 1963 Edition, 1971 Revision. Disputes arose concerning, inter alia, delay in completion and claims for loss and expense which were referred to arbitration. The contractor contended that the delay was almost wholly due to want of diligence and care and lack of co-operation on the part of Merton’s architect whereby Merton had broken certain implied terms of the contract and/or were liable under clauses 11 and/or 24 of the JCT Form.
 
The arbitrator made an interim award on certain preliminary issues from which Merton appealed under the Arbitration Act 1979. In summary, the issues were as follows (numbered as in accordance with the judgment, but omitting issues in respect of which there was no appeal):
 
1. Whether there were implied terms
 
(i) that Merton would not hinder or prevent the contractor from carrying out its obligations in accordance with the terms of the contract and from executing the works in regular and orderly manner,
 
(ii) that Merton would take all steps reasonably necessary to enable the contractor to discharge its obligations and to execute the works in a regular and orderly manner,
 
(iii) that the architect would provide the contractor full, correct and co-ordinated information concerning the works,
 
(vi) that the architect would administer the contract in an efficient and proper manner and in accordance with the practice and





  
  
  
  
  
  


procedure normally followed by architects administering a substantial building contract, and in particular that it was normal practice and procedure to identify drawings by particular references (as pleaded).
 
5. Did programme 515 become a specific application for instructions, drawings or detail levels within the meaning of clause 23(f) and 24(1)(a), and, if so, when?
 
6. Whether certain documents as pleaded constituted notices within the meaning of clause 23.
 
7. Did the contractor make written application for direct loss and/or expense within the meaning of clause 24(1), and if so, in respect of which matters was written application made and when?
 
8. Did the contractor make written application for direct loss and/or expense within the meaning of clause 11(6) and if so, in respect of which matters was written application made and when?
 
9. Do the terms of the contract permit the contractor to recover direct loss and/or expense under clauses 11(6) or 24(1) in respect of any alleged event, when it is not possible for the contractor to state in respect of any such alleged event the amount of loss and/or expense attributable thereto?
 
10. Where a contractor notifies the architect in writing of an event which the contractor maintains qualifies under clauses 11(6) or 24(1), is the contractor or the architect under certain duties (as pleaded) thereafter and is the building owner liable in damages for failure by the architect to perform his duty?
 
11. If the contractor proves all the breaches alleged (as pleaded) will he be entitled to recover sums otherwise in accordance with clauses 11(4) and (6), 24(1) and 30 of the contract:
 
(a) in respect of the contract works as a whole;
 
(b) in respect of all breaches;
 
(c) in respect of any individual breach and if so what?
 
12. If the contractor proves the breaches alleged (as pleaded) is he entitled to remuneration on a quantum meruit basis (a) in respect of some items only, and if so which; (eg for all work clone?).
 
13. If the contractor proves the breaches alleged in the Points of Claim will he be entitled to recover the sum claimed as direct loss and/or expense even though the sum has not been calculated precisely in accordance with clauses 11(6) and 24(1)?
 





  
  
  
  
  
  


14. Upon the true construction of clause 23 is the contractor entitled to an extension of time in respect of any cause of delay falling within sub-clauses (a) to (k) if he fails to give written notice thereof forthwith upon it becoming reasonably apparent that the progress of work is delayed?
 
15. Does the arbitrator have power to waive and/or cure any lack of or deficiencies in any notice required to be given by the contractor pursuant to clause 23 and/or any written application required to be given by the contractor pursuant to clauses 11(6) or 24(1)?
 
(In the judgment Issue 14 was taken after Issue 5.)
 
HELD:
 
(1) Issue 1:

 
(i) There was an implied term that Merton would not hinder or prevent the contractor from carrying out its obligations in accordance with the terms of the contract and from executing the work in a regular and orderly manner: dicta of Vaughan Williams LJ in Barque Quilpud Ltd v Bryant [1904] 2 KB 261 and 274 applied.
 
(ii) Although the courts will imply a duty to do whatever was necessary in order to enable a contract to be carried out, the requirement of good faith had not been incorporated into English law: dicta of Lord Blackburn in Mackay v Dick (1881) 6 App Cas 251 at 263 and of Devlin J in Mona Oil Equipment Co v Rhodesia Railways [1949] 2 All ER 1014 at 1018 followed.
 
per curiam: The implementation of a building contract embodying the JCT conditions does require close co-operation between the contractor and the architect... The implied undertaking by the building owner extends to those things which the architect must do to enable the contractor to carry out the work and the building owner is liable for any breach of this duty on the part of the architect.
 
(iii) An implied term that the architect would provide correct information concerning the work was a particular application of the more general term under Issue 1 (ii) above.
 
per curiam: Clause 3(4) [of the JCT Form] imposes on the architect an obligation to furnish the contractor with drawings and detail as and when necessary... it must have been in the contemplation of the parties that the architect would act with reasonable diligence and would use reasonable care and skill in providing the information. The contract does not impose a duty on a contractor to check the drawings to see if there are discrepancies or divergences...





  
  
  
  
  
  


(vi) The first part of the implied term alleged was no more than a re-statement or particular application of Merton’s contractual undertaking that there would be a person answering the definition of "the architect" and that the architect would be reasonably competent and would use that degree of diligence, skill and care in carrying out the duties assigned to him under the contract. The question what steps the architect was bound to take to discharge his duty was a matter for the next stage in the arbitration.
 
(2) Issue 5:
 
(a) A document which set out in diagrammatic form the planned programme for the work and indicated the dates by which instructions, drawings, details and levels were required could be a specific application for information to meet the requirements of clauses 23(f) and 24(1)(a); programme 515 met that requirement.
 
(b) Such an application might be made at the commencement of the work for all the instructions that the contractor could foresee would be required in the course of the works provided that the date specified for delivery of each set of instructions met the requirements of not being unreasonably distant from or reasonably close to the relevant date.per curiam: If the works do not progress strictly in accordance with the plan, some modification may be required to the prescribed timetable and the subsequent furnishing of instructions.
 
It does not of course follow that programme 515 was a sufficiently specific application made at an appropriate time in relation to every item of information required, more particularly in the light of the delays and the re-arrangement of the programme for the work.
 
(3) Issue 14:
 
(a) If the architect is of the opinion that because of an event falling within clause 23(a)-(k) progress of the work is likely to be delayed beyond the completion date, he must estimate the delay and make an appropriate extension to the date of completion. He owes that duty not only to the contractor but also to the building owner.
 
(b) The giving of notice by the contractor under clause 23 was not therefore a condition precedent before the architect was due under a duty to consider any possible extension of time. (c) Failure by the contractor to give notice under clause 23 on it becoming reasonably apparent that the progress of the work was delayed was a breach of contract and that breach could be





  
  
  
  
  
  


taken into account by the architect providing an extension of time.
 
(4) Issue 6:
 
(a) A contractor is not required under clause 23 to give notice of delay which will be caused by some expected future event, however probable its occurrence may be, but he is required to give notice if there will be inevitable delay because of some event which has already happened. A notice may therefore refer to a future delay.
 
(b) Subject to that qualification a notice under clause 23 must be in writing and must specify a cause of delay which has started to affect progress and must not relate to a future anticipated delay.
 
(c) A document could be considered a proper notice even if it did not specify a cause of delay with sufficient detail for the architect to form the opinion whether the cause falls within clause 23(a)-(k) because of the different criteria which apply to the notice and to the opinion. The intention of the contractor’s notice is simply to warn the architect of the current situation regarding current progress. It is then up to the architect to monitor the position in order to form his opinion.
 
(d) The architect was not relieved of his duty by the failure of the contractor to give notice or give notice promptly.
 
(e) It was the duty of the contractor to give the architect as much information as he could as to the cause of the delay so as to assist the architect in performing his duty. The contractor did not discharge his duty until he had done so. Thus the contractor might be in breach of his duty to give notice forthwith if the notice did not adequately explain what was, to the knowledge of the contractor, the cause of the delay notwithstanding that he subsequently amplified the notice by giving that information.
 
(f) Applying these principles, none of the documents held by the arbitrator to be the notices were incapable as a matter of law of constituting or forming part of a notice under clause 23.
 
(5) Issues 7 and 8.
 
(a) Applications under clause 11(6) and/or clause 24(1) must be framed with sufficient particularity to enable the architect to do what he is required to do. The application must be made within a reasonable time: it must not be made so late that the architect can no longer form a competent opinion of the matters on which he is required to satisfy himself that the contractor has suffered the loss or expense claimed.
 
(b) In considering whether the contractor has acted reasonably,
 





  
  
  
  
  
  


it must be borne in mind that the architect is not a stranger to the work and that it was always open to the architect to call for further information either before or in the course of investigating a claim.
 
(6) Issue 9:
 
If application is made under clause 11(6) and/or clause 24(1)for reimbursement of direct loss for expense attributable to more than one head of claim and at the time when the loss or expense comes to be ascertained it is impracticable to disentangle or disintegrate the part directly attributable to each head of claim, then provided that the contractor has not unreasonably delayed in making the claim and so has himself created difficulty, the architect must ascertain the global loss directly attributable to the two causes, disregarding any loss or expense which would have been recoverable if the claim had been made under one head taken in isolation and which would not have been recoverable under the other head also taken in isolation: Crosby v Portland UDC (1967) 5 BLR 121 followed.
 
per curiam:
It is implicit in Crosby that first, a "rolled up" award can be made only in a case where the loss or expense attributable to each head of claim cannot really be strictly separated and secondly that a rolled up award can be made only where, apart from that practical possibility, the conditions which have to be satisfied before an award can be made have been satisfied in relation to each head of claim.
 
(7) Issue 10:
 
(a) Clauses 11(6) and 24(1) entitle but do not require the contractor to make an application. They merely govern the steps to be taken if notice is given.
 
(b) If a written application is made under clauses 11(6) or 24(1), it should be made with sufficient particularity to enable the architect to know upon what question he is required to form an opinion. It is then for the architect to obtain the information which he considers necessary to enable him to form that opinion, whether from the contractor or from other sources.
 
per curiam: If the contractor fails to identify with sufficient particularity the question upon which the architect is required to form an opinion, he cannot recover direct loss and/or expense although it does not follow that he has no remedy.
 
(c) If the architect forms an opinion favourable to the contractor it is his duty to ascertain or to instruct the quantity surveyor to ascertain the loss or expense suffered.
 
per curiam: The contractor must clearly co-operate with the architect or quantity surveyor in giving such particulars of the





  
  
  
  
  
  


loss or expense claimed as the architect or quantity surveyor may require to enable him to ascertain the extent of that loss or expense; clearly the contractor cannot complain that the architect has failed to ascertain or instruct the quantity surveyor to ascertain the amount of direct loss or expense if he has failed adequately to answer a request for information.
 
(8) Issue 11:
 
(a) The elaborate machinery of the contract was not exhaustive of the contractor’s remedies.
 
(b) Clause 24(2) entitles the contractor to make a claim for damages as an alternative to or independently of a claim under clause 24(1). Similarly clause 11(6) does not exclude a claim for damages.
 
per curiam: The contractor is not obliged to make application under clause 24(1). He may prefer to wait until completion of the work and join the claim for damages with other claims for damages.
 
(9) Issue 12:
 
Since the contractor’s claim was an alternative to the claim for damages in respect of the breaches alleged and identified in Issue 11, this issue was a hypothetical one and did not call for an answer.
 
(10) Issue 13:
 
The calculation pleaded by the contractor could not be treated as even an approximation for a claim, whether or not rolled up under clause 11(6) and clause 24(1) since it in effect relieved the contractor from any burden of additional costs resulting from delays in respect of which the contractor was not entitled to an extension of the contract completion date.
 
(11) Issue 15:
 
Insofar as the conditions of contract required the contractor to take specified steps before the architect or is obliged to issue a certificate, form an opinion, or make a decision, an arbitrator cannot waive those requirements: dicta of Sir John Donaldson MR in Northern Regional Health Authority v Crouch [1984] OB 664 at 671, 26 BLR at 33-34 followed.
 
John Tackaberry QC and Nicholas Baatz appeared on behalf of Merton, instructed by Linklaters & Paines
John Loyd QC and Rupert Jackson appeared on behalf of Leach, instructed by Badhams





  
  
  
  
  
  


 
Commentary
 
This decision of Vinelott J deals with some questions of general importance. Vinelott J was faced with a large number of matters framed as preliminary issues. As his judgment makes clear, he did not consider that they could all be determined satisfactorily on the material before him. He was in a position similar to that of Donaldson J (as he then was) who in Crosby v Portland UDC (1967) 5 BLR 121 was required to deal with twenty-nine questions of law. The reaction of Donaldson J was typical. He said (at p 126):
 
"In the course of the hearing I expressed doubts as to whether any useful purpose was served by my deciding all twenty-nine questions and expressed the view that if I answered the first of each group of questions and gave my reasons, the parties would have all that they could reasonably require in the way either of the decision or of raw material for an argument of the Court of Appeal. This was accepted by the parties...
 
I drew attention to the multiplicity of questions in this case not by way of criticism of the arbitrator but in the hope that other arbitrators may be persuaded to resist the temptation to accept examination papers for the court. Provided that arbitrators find all the facts which are necessary to enable the parties to make their respective submissions in law, the fewer and more general the questions of law for decision by the court the better."
 
These wise words were not followed by the parties who required the arbitrator to provide what turned out to be another formidable examination paper for the court. The fact that he did so satisfactorily appears from the manner in which Vinelott J was able to use much of the interim award for the purposes of his own judgment, adopting in many cases the reasoning set out in it. However, it evidently became clear to the judge that many of the issues with which he was asked to deal were ones which ought only to have been considered in the second stage of the arbitration when the facts could be fully investigated.
 
For the purposes of this commentary we will refer only to the issues which were live in the sense that they dealt with by the judge giving full reasons.
 
Issue 1:
 
This issue concerned the implication of certain terms alleged by the contractor for the purposes of being able to mount a claim for breach of contract against the employer on the grounds that the architect had failed to discharge the duties to be implied. The argument gave rise to a consideration of familiar questions: first, the general approach to be adopted as to the implication of terms, and





  
  
  
  
  
  


secondly, whether an implied duty of co-operation was negative as well as positive in character (a subject which was discussed helpfully by J Burrows in (1968) 31 MLR 390).
 
As to the first question, Vinelott J held that the terms which were sought to be implied fell within the fourth category suggested by Lord Wilberforce in Liverpool City Council v Irwin [1977] AC 239 at 253:
 
"The Court here is simply concerned to establish what the contract is, the parties not having themselves fully stated the terms. In this sense the court is searching for what must be implied."
 
However, it is clear that certain of the terms alleged were also to be derived from the relationship between the parties and therefore formed part of the legal incidents of the contract as they stemmed from the general obligation as to co-operation.
 
The terms were ones which in general sought to impose upon the architect obligations to provide the contractor with drawings, details and other instructions and information which would enable the contractor to carry out and complete the work in the manner which he, the contractor, wished. In order to rebut the implication it was argued on behalf of Merton that since the architect did not act on behalf of the building owner, either the terms could not be implied or that there could be no breach on the part of the employer. This therefore raised the common question of the distinction which has usually to be made between the functions which the architect is appointed by the employer to perform for the purposes of securing the employer’s interests (eg by issuing instructions for variations) and the functions of being a certifier and holding the balance between the parties by correctly applying the terms of the contract in issuing certificates and reaching decisions on matters which might be contentious. Vinelott J saw this distinction clearly. He said (at p 78):
 
"It is to my mind clear that under the standard conditions, the architect acts as the servant or agent of the building owner in supplying the contractor with the necessary drawings, instructions, levels and the like and in supervising the progress of the work and ensuring that it is properly carried out... To the extent that the architect performs these duties the building owner contracts with the contractor that the architect will perform them with reasonable diligence and with reasonable skill and care. The contract also confers on the architect discretionary powers which he must exercise with due regard of the interests of the contractor and the building owner. The building owner does not undertake that the architect will exercise his discretionary powers reasonably; he undertakes that although the architect may be engaged or employed by him, you leave him free to exercise his discretion fairly and without improper interference by him."
 





  
  
  
  
  
  


(To this may be added the observations of MacFarlan J in Perini v The Commonwealth of Australia (1969) 12 BLR 82, in which it was held that an architect in the position of an employee was obliged to perform his duties as a certifier at the times required under the contract.) It was, however, suggested that such a classic exposition had been altered by the decision of the Court of Appeal in Northern Regional Health Authority v Crouch [1984] QB 644; 26 BLR 1. Vinelott J could see nothing in the judgments in that case which was in any way inconsistent with the accepted view of the role of the architect (see p 49 below). He went on to emphasise that, of course,
 
"to the extent that the architect acts as the agent or servant of the building owner in discharging obligations imposed on the building owner by the contract, his acts are not subject to review by the arbitrator - though they may found a claim for damages for breach of contract, the extent of which will fall to be determined by the arbitrator."
 
This neatly states reasons why under the JCT forms an arbitrator is not empowered to open up, review and revise decisions taken or not taken by the architect in giving effect to the interests of the employer when he is acting as his agent as opposed to those decisions which he takes when performing his function as a "certifier". The fact he is appointed by the employer to perform the latter function does not of course make the employer in some way vicariously liable for the decision reached by the architect. Indeed even where, as in Perini, the employer is liable because the architect does not perform the function for which he is employed under the contract of service, it is questionable whether damages are recoverable if the only loss is being kept out of money to which there was a legally enforceable right against the employer.
 
Having disposed of this objection in principle to the implied terms, Vinelott J then went on to consider the ambit of the terms alleged which, as he pointed out, were in many cases no more than a reformulation of the basic implied term as to co-operation. This in turn required a consideration of the usual dichotomy which arises between the positive and negative aspects of co-operation. The former is exemplified by the dicta of Lord Blackburn in MacKay v Dick (1881) 6 App Cas 251 at 263 (referred to by Vinelott J in his judgment on p 80); the latter is frequently expressed in terms of an allegation that an employer is duty bound to do nothing which will hinder or impede the contractor in the execution of his obligations under the contract. Such a term rarely arises to be implied since in many cases, upon analysis, it requires the employer to be responsible, for example, for the acts of third parties. The distinction between the two terms is usefully illustrated by the way in which the defendant’s case





  
  
  
  
  
  


was pleaded in Holland and Hannen & Cubitts v WHTSO (1981) 18 BLR 80 at 94. In that case the defendants were faced with the allegation that they were not "in any way [to] hinder or prevent [the contractor] from carrying out and completing his work expeditiously, economically and in accordance with the main contract". The defendants did not admit that implied term to the extent that it enlarged a term which was admitted, namely that they were under an obligation to "do all things necessary on their part to enable [the contractor] to carry out and complete the works expeditiously, economically and in accordance with the main contract". (To many even that admission might go further than was necessary having regard to the terms of the contract: see for example Keating on Building Contracts, 4th Edn, at p37, where the learned author points out that in "a comprehensive written contract such as the standard form of building contract there may be very little room for the implication of any terms for if the parties have dealt expressly with them in the contract no terms dealing with the same subject matter can be implied".) The implied term as to co-operation in a contract as sophisticated as the JCT forms is in many cases is displaced by the terms expressed. Vinelott J recognised the limitation on the obligation to co-operate in his approach to the terms which were thought to be implied. In particular he declined to express a view on one term which related to the manner in which a contract was to be administered. He said that he felt considerable doubt as to whether a finding in the terms sought was appropriate to the stage at which the arbitration had reached or was one which the court could be asked to review on an application for the determination of preliminary points of law (see p 85 below).
 
Issue 5.
 
This issue raised another familiar problem, namely, whether the submission of a programme by the contractor at an early stage of the contract could constitute a specific application for the purposes of clause 23(f) or clause 24(1)(a) of the 1963 edition of the JCT Conditions. Vinelott J came to the conclusion that such a programme could constitute such an application, provided that the dates set out in the programme met the two contractual requirements of being neither unreasonably close to nor unreasonably distant from the dates upon which the relevant information was in fact required by the contractor. He went on to express the important reservation that if the works did not progress strictly in accordance with that programme, some modification might be required, and in relation to the document relied on by the contractor Vinelott J specifically said:
 
"It does not of course follow that programme 515 was a sufficiently





  
  
  
  
  
  


specific application made at an appropriate time in relation to every item of information required, more particularly in the light of the delays and the re-arrangement of the programme for the work."
 
In practice unless a programme is extremely detailed it will not constitute an application which is sufficiently "specific". The clauses clearly contemplate that a general statement is not sufficient, viz "all M & E drawings by Week 20".
 
Issue 14.
 
This issue was interposed since it was appropriate to consider it at this stage in the judgment. It concerned the question whether the contractor was obliged to give a written notice of the cause of delay under clause 23 as a condition precedent to the architect obtaining an extension of time; put another way, was the architect obliged to consider the application to granting an extension of time unless and until such notice had been given? Clause 23 of the 1963 edition of the JCT Form is one of its more obscure clauses (like clause 22). Changes were made for the purposes of the 1980 Edition, and it is therefore probable that it will not receive the same interpretation. Nevertheless it is likely that there will be debate about this part of the judgment of Vinelott J. The judge reached the conclusion that it was not a condition precedent to an entitlement to an extension of time for the contractor to have given notice under clause 23, but that failure to give a notice was a breach of contract which might be taken into account by the architect in determining the extension of time. It is not entirely clear how this fits in with the scheme of an extension of time clause, which exists primarily to protect the employer against the possibility that some act of prevention may disentitle him to recover liquidated damages. The second and more modern purpose of an extension of time clause is to relieve a contractor from the liability to pay liquidated damages because of the occurrence of some event which delays completion but which would otherwise be at his contractual risk. Such an analysis did not apparently form part of the reasoning of the judge and the conclusion he reached is not one which would be easy to apply in practice as it would involve a difficult assessment by the architect or arbitrator of the extent to which the employer was prejudiced by the contractor’s breach of contract in not giving the notice under clause 23. As already pointed out, as a result of the revision of the form in 1980 it may be of less practical importance than it would otherwise have been.
 
Issue 6.
 
These issues concerned the question whether certain documents constituted notices for the purposes of conditions of contract.





  
  
  
  
  
  


Whether or not a document does constitute a notice is, of course, ultimately a question of law, (see, for example, Humber Oil Trustees Ltd v Hersent Offshore Ltd (1981) 20 BLR 16. Provided any relevant facts have been found by the arbitrator, a court can determine whether or not the document does or does not comply with the requirements of the contract.
 
The architect had decided that the notice required of the contractor was not limited to the causes of delay listed in clauses 23(a)-(k).
 
Vinelott J agreed with the arbitrator. A contractor should therefore notify the architect of any cause of delay which has occurred and which has affected or is likely to affect progress even if it is not certain that it may affect completion by the completion date then current.
 
Nevertheless since, according to the judge, the giving of such a notice is not a condition precedent the consequences in law of failure to give notice have yet to be clarified.
 
The arbitrator then went on to say that it was then up to the architect to monitor progress. The judge agreed with this also. He took the view that the architect had to
 
"consider independently in the light of his knowledge of the contractor’s programme and of the progress of the works and of his knowledge of other matters affecting or likely to affect the progress of the work, in particular those specified in the numbered sub-paragraphs, whether completion is likely to be delayed for any of the stated causes. If necessary he must make his own inquiries, whether from the contractor or others."
 
On the other hand the notice given to the architect has to be as full as possible:
 
"It is the duty of the contractor when it is apparent to him that progress of the works is delayed to give the architect as much information as he can as to the cause of the delay so as to assist the architect in performing his duty. The contractor does not discharge his duty until he has done so. Thus the contractor may be in breach of his duty to give notice forthwith (with the consequences I have indicated) if he gives a notice which does not adequately explain what is to the knowledge of the contractor the cause of the delay and in breach of duty notwithstanding that he subsequently amplifies the notice by giving that information."
 
Issues 7 and 8:
 
These issues concerned a single question of principle which was described by the judge at p 96 as follows:
 
"The question of principle is whether an application under clauses





  
  
  
  
  
  


24(1) or 11(6) must contain sufficient information to enable the architect to form an opinion on the questions whether (in the case of clause 24) the regular progress of the work has been materially affected by an event within the numbered sub-paragraphs of clause 24 or (in the case of clause 11(6)) whether the variation has caused direct loss and/or expense of the kind there described and in either case whether the loss and/or expense is such that it would not be reimbursed by payment under other provisions of the contract or (in the case of 11(6)) under clause 11(4)."
 
The judge agreed with the arbitrator in deciding this issue against the employer, holding that the contractor need not provide complete and detailed information of the time of the written application. In this respect Vinelott J’s approach was similar to that of Robert Goff LJ in the case of Rees and Kirby v Swansea City Council (1985) 30 BLR 1 at 20. Vinelott J, however, pointed out that it would not necessarily be enough simply to make what might be described as a "bare" application which would satisfy the requirements of clause 11(6) or clause 24(1): the application had to be framed with sufficient particularity to enable the architect to do what he was required to do. It must therefore follow that the application must be sufficiently informative to enable the architect to be able to form an opinion as to whether or not there is any loss or expense to be ascertained either by himself or by the quantity surveyor. The judgment of Vinelott J seems to suggest that an architect would have good knowledge of the contractor’s planning. This may be true where detailed programmes have been prepared and submitted and followed, and where necessary, revised, but without specific information about the contractor’s planning the architect could not ordinarily have detailed knowledge of the progress of the work. He is certainly unlikely to have detailed knowledge of the respects in which a delay may cause the contractor to incur loss or expense which would otherwise be reimbursed under the relevant provisions of the contract for such knowledge presupposes a clear appreciation of how the provisions of the contract are going in practice to work so as to give rise-to un-recovered loss or expense. The architect is not the contractor’s quantity surveyor. That these considerations were appreciated by Vinelott J appears from his approach to Issue 10.
 
Issue 9:
 
In this issue the employer was on weak ground. The concept of the "global" claim was approved by Donaldson J (as he then was) in Crosby v Portland Urban District Council as long ago as 1967 (5 BLR 121) and has been acted on since then whenever the two requirements clearly identified in that case had been satisfied (and they are sometimes forgotten or ignored):





  
  
  
  
  
  


(1) that there has been an extremely complex interaction between the consequences of the various events;
 
(2) that as a result it is either difficult or even impossible to make an accurate apportionment of the total extra cost between the several causative events.
 
Applied to the JCT Form Vinelott J said at p 102 that it was:
 
"implicit in the reasoning of Donaldson J first, that a rolled up award can only be made in the case where the loss or expense attributable to each head of claim cannot in reality be separated and secondly that a rolled up award can only be made where apart from that practical impossibility the conditions which had to be satisfied before an award can be made have been satisfied in relation to each head of claim."
 
This in turn will mean an application will have to be made in respect of each event which it is said forms a head of claim.
 
Issue 10:
 
This issue was in effect a continuation of the matters already considered fairly fully under Issues 7 and 8. Under this head Vinelott J dealt with what had to happen after the contractor had made an application basically satisfying the minimum requirements of clause 11(6) and/or clause 24(1) so that the architect had been able to form an opinion favourable to the contractor and was then under a duty to ascertain or instruct the quantity surveyor to ascertain the loss or expense that had allegedly been suffered. He said (at p 104):
 
"The contractor must clearly co-operate with the architect or the quantity surveyor giving such particulars of the loss or expenses claimed as the architect or quantity surveyor may require to enable him to ascertain the extent of that loss or expense; clearly the contractor cannot complain that the architect has failed to ascertain or to instruct the quantity surveyor to ascertain the amount of direct loss or expense attributable to one of the specified heads if he has failed adequately to answer a request for information which the architect requires if he or the quantity surveyor is to carry out that task."
 
The judge went on to say (at p 104):
 
"If [the contractor] makes a claim but fails to do so with sufficient particularity to enable the architect to perform his duty or if he fails to answer a reasonable request for further information he may lose any right to recover loss or expense under [clause 11(6) or clause 24(1)] and may not be in a position to complain that the architect was in breach of his duty."
 
It remains to be seen what is meant by the words "he may lose any





  
  
  
  
  
  


right": it is not entirely satisfactory that the position is unclear either the contractor has rights or he has lost them, but it should not be the position that whether or not he has them depends entirely upon the view taken by the architect. At that stage the architect’s duty is not to form an opinion about whether or not the contractor has a claim but simply to go through the relatively mechanical exercise of investigating and finding out for certain the amount of the claim which has previously been accepted. It may however be that Vinelott J had in mind the provisions of clause 24(2) to which he was about to turn.
 
Issue 11
 
Both clause 11(6) and clause 24(1) operate to entitle a contractor to recover loss or expense which will not otherwise be recovered by the contractor under other provisions of the contract. It is therefore contemplated that what might otherwise be loss or expense recoverable under clause 11(6) or clause 24(1) may be recovered in other ways. In the case of clause 24 there is of course an express exception in clause 24(2). In practice, this express exception is likely only to be of value to a contractor who has failed to receive instructions on time and wishes to present his case as breach of clause 3(4) or on some other special basis as an alternative to an application under clause 24(1)(a). Subject to the operation and application of the doctrine of election or approbation the contractor would be free to pursue this alternative remedy. Thus Vinelott J, whilst not referring to the possibility of curtailment by election or approbation, sanctioned the pursuit of alternative remedies. He thought he also perceived an alternative remedy to a claim under clause 11(6) arising out of a failure by the architect to ascertain the loss or expense which might otherwise have been recovered under clause 11(6). Whilst a claim for damages might conceivably lie which was not excluded by the rules against the recovery of compensation for loss of use of the money it is not likely that the quantum of damages would be equivalent to the amount of the un-recovered loss or expense except in those circumstances where the failure was caused by some breach of contract on the part of the employer, eg by failing to appoint an architect or quantity surveyor to ascertain the amount of loss or expense; aliter where the architect or quantity surveyor duly appointed simply fails to give the contractor what he requires.
 
Issue 12
 
The arbitrator arrived at a conclusion which gave the contractor a "partial quantum meruit". For understandable reasons Vinelott J treated the issue arising as a hypothetical one but in the light of the Canadian decision of Morrison-Knudsen & Co Inc v British Columbia





  
  
  
  
  
  


Hydro & Power (No 2) (1978) 85 DLR (3d)186 it is unlikely that such a claim would succeed in England where the contract had been fully performed.
 
Issue 13
 
Vinelott J had little difficulty in disposing of this issue in favour of the employer. The contractor had apparently presented his claim under the contract on the basis of the difference between his actual expenditure and his actual recovery. This is frequently done and in some circumstances may be a proper approach, at least initially. In this instance the judge was satisfied that a calculation which "in effect released Leach from any burden of additional costs resulting from delays" was not appropriate.
 
Issue 15
 
This issue arises out of the words to be found in clause 35(3) of the 1963 edition of the JCT Form which suggests that an arbitrator has the power to open up, review and revise a notice (scil given by the contractor) and to proceed on the basis that such a notice had been given at the correct time. Vinelott J’s judgment makes it clear that the arbitrator had no power in effect to waive a condition precedent; where the contract imposes certain requirements before a right exists, the arbitrator has to determine whether those requirements have been met, and, if so, to declare and enforce the right (if appropriate); and, if not, to declare that no such right exists.
 
In keeping with our customary practice in cases where one of the editors was involved as counsel the commentary contains the views of the uninvolved editors only.





  
  
  
  
  
  


 
LONDON BOROUGH OF MERTON v STANLEY HUGH LEACH Ltd
 
 
20 December 1985
 
Chancery Division
 
Vinelott J
 
VINELOTT J: This is an appeal from an arbitrator. The appellant, the London Borough of Merton, was the respondent in the arbitration and the respondent in this appeal, Stanley Hugh Leach Ltd, was the claimant. I shall refer to them as "Merton" and "Leach" respectively. On 27 September 1972 they entered into Articles of Agreement under which Leach agreed to carry out building works (a development comprising 287 new dwellings at Mitcham) on behalf of Merton. The Articles incorporated the standard terms and conditions in the July 1971 revision of the 1963 edition of the Standard Form of Building Contract published on behalf of the Joint Contracts Tribunal by RIBA Publishers Ltd subject to amendments made on a copy of the standard terms and conditions annexed to the Articles and initialled on behalf of the parties.
 
On 4 January 1982 (long after completion of the works) the parties appointed Leslie William MacBryde Alexander, an architect with very wide experience, as an arbitrator to resolve disputes which had arisen concerning, amongst other things, delay in completion of the works.
 
The arbitrator, after preliminary hearings, gave directions as to pleadings and other matters. Following the exchange of pleadings the architect was invited to hear the arbitration in two stages and at the first stage to decide preliminary issues formulated by the parties. That he agreed to do and it is from his decision on certain of those preliminary issues that this appeal is brought.
 
The case is one of considerable complexity. The pleadings run to some 7,000 pages. The arbitrator was asked to decide no less than fourteen preliminary issues, some of which are of wide-reaching importance. To explain those issues I shall have to summarise, as briefly as I can, the main provisions of the contract, the historical background to the dispute and the claims made in the arbitration.





  
  
  
  
  
  


The Contract
 
The Articles of Agreement were entered into following the submission by Leach of a tender in usual form in which Leach, "having read the Conditions of Contract and Bills of Quantities delivered to us and having examined the drawings referred to therein" offered to execute and complete the works described for the sum of £2,265.217 within thirty months from the date of possession. That period was extended by the contract to thirty-three months.
 
By clause I of the Articles of Agreement, it was agreed that the tender the general conditions to which I have referred, bills of quantities and Appendix 1 to the bills of quantities and ten numbered drawings should be deemed to form part of the agreement. Then in consideration of the agreed contract document Leach (referred to in the Articles of Agreement as "the Contractor") covenanted to execute the words "in the manner specified in and subject to the terms and conditions mentioned, described or to be implied from the Contract Documents".
 
By clauses 3 and 4 the expressions "the Architect" and "the Quantity Surveyor" are defined to mean the Borough Architect and the Chief Quantity Surveyor for the time being of Merton (referred to in the Articles as "the Employer") and by clause 5 the expression "the Consulting Engineer" is defined to mean W V Zinn and Associates "or, in the event of their ceasing to be consulting engineers, such persons as the employer shall nominate for that purpose".
 
It is to be noted that there is no similar provision for the nomination of an architect or quantity surveyor if Merton should cease to employ a chief architect or a chief quantity surveyor.
 
There is no definition in the Articles of Agreement or in the conditions of the expressions "the Contract Drawings" and "the Contract Bills" though those expressions are used throughout the
 
conditions. However, it is I think natural to read the expression "the Contract Drawings" as referring to the drawings to be read as part of the contract and to "the Contract Bills" as the bills identified in the articles of agreement.
 
As I have said, the articles of agreement incorporate the standard terms and conditions in the July 1971 revision of the 1963 edition of the JCT Standard Form of Building Contract appropriate to a contract for the execution of works for a local or public authority subject to agreed amendments. Those standard conditions are published and are readily accessible in the usual text books. None of the amendments to the standard conditions are material to the issues raised in this case. I do not therefore propose to attempt to summarise the general structure of the conditions. I shall set out at





  
  
  
  
  
  


length the specific conditions which are in issue when I turn to the preliminary issues raised.
 
The History of the Contract
 
One of the preliminary issues was whether the date of possession was 21 August or 15 September 1972. The arbitrator held the date of possession was 15 September 1972 and the date for completion accordingly 14 June 1975. There is no appeal from that decision.
 
On 18 September 1972 Leach sent Merton’s architect a stage programme setting out the work programmed for the first sixteen weeks of the contract. Later Leach sent Merton’s architect a programme dated 16 October 1972 and numbered 515, although that programme was I understand delivered in November. That document, which is of considerable importance, sets out Leach’s programme for completion of the whole of the works. It contains on the left-hand side an analysis of the works into a number of categories or "activities", 54 in all: for instance "site clearance" and "main foul and storm water sewers". Running across from left to right are a number of columns, 130 in all, one for each of the first 130 weeks of the contract period starting with the week commencing 11 September 1972 and ending with the week commencing 19 February 1974. The period from then until the date of completion is said by Leach to be a float period to allow for delays. Opposite each itemised "activity" runs a horizontal bar starting with the week in which the activity is to be commenced and ending with the week in which it is to be completed. In some instances notes indicate the order in which sub-activities within a given activity would be carried out. Opposite each activity are also to be found a number of conventional signs indicating the dates on which drawings and other information will be required by Leach. A simple circle signifies "Finalised Structural Engineers’ Drawings and Schedules"; a circle, the right hand half of which is occluded, "Architects’ Information for Construction Requirements"; a circle, the bottom half of which is occluded, "Latest date for information to enable order or sub-contract to be placed"; a circle wholly occluded "Builders’ works drawings and fixing details finalised and approved"; a simple square "Approval of Sub-Contractors’ Shop Drawings" and a simple hexagon "Approval or Supply of Schedules or Samples". One very important issue is whether drawing 515 represents a request by Leach to the architect for the supply of drawings and other information at the times indicated by these conventional signs.
 
The period from the date of possession until practical completion of the works has been divided by Merton in its points of defence into three sub-periods: first the period until December 1974,





  
  
  
  
  
  


secondly the period from January 1975 until June 1975 and lastly the period from June 1975 until practical completion. It is said that during the first period progress kept reasonably close to plan although at the end Leach in terms of money certified was some £300,000 behind schedule, which sum represented some four months’ work. It is said that in the second period there was severe industrial unrest caused by the use by Leach of lump labour contrary to the aims of the NJC which resulted in a virtual stoppage; it is claimed that this delay was self-induced and that Leach is entitled to no extension for it. As regards the third period, it is said that the rate of progress did not recover, that the standard of workmanship fell and that industrial unrest continued sporadically to delay the work. Leach, while admitting that there was some industrial unrest during the second period, do not admit that the work was seriously delayed or that the delay was self-induced. As regards the last period they claim that there was no significant delay caused by industrial disputes. Their case is that the delay throughout was almost wholly due to want of diligence and care and to lack of proper co-operation on the part of Merton’s architect. Because the development consisted of a number of modules, delay caused by inadequate or confused instructions and drawings in completing the first module and by want of co-operation in completing "snagging lists" was cumulative.
 
The works were completed and a certificate of practical completion was given on 20 May 1977, 101 weeks after the contractual date for completion. In the course of the work the architect in exercise of the powers conferred by condition 23 made extensions amounting in the aggregate to 26 weeks. Merton’s architect retired or left their employment in April 1980. There has since been no person answering the description "the Architect" in the articles of agreement. Leach were not supplied with bills of variation in accordance with clause 30(5) of the conditions while Merton employed a borough architect and it is said that in view of the time that has elapsed it is impractical now for them to be prepared.
 
The Pleadings
 
As I have said, the pleadings are voluminous. Particulars given by Leach and Merton of allegations in the points of claim, the defence and the reply incorporate many of the documents which came into existence in the course of carrying out the works or in the preparation of the claim. It is unnecessary to explain the issues in any detail but I must refer to some specific paragraphs of the points of claim and defence to which reference is made in the interim award.
 
In paragraph 7 of the points of claim it is said that there should be implied in the contract terms to the effect that Merton would not





  
  
  
  
  
  


hinder Leach from carrying out its obligations under the contract and would take all steps reasonably necessary to enable Leach to discharge their obligations under the contract and that the architect would (in summary) issue instructions and drawings and so forth necessary for the works to be completed in good time and if variations were to be made would similarly issue instructions in good time and generally would provide full correct and coordinated information to Leach and would administer the contract in a business-like way.
 
I shall have to set out in detail the precise terms which it is sought to imply when I turn to the first of the preliminary issues. In paragraph 8 it is said that Merton impliedly represented that the detailed design of the project and the preparation of adequate details for construction purposes was complete. The main issues are raised in paragraphs 14 to 18 and 23 to 31. In paragraph 14 it is said that Merton breached express and implied terms of the contract in the manner set out in paragraphs 15 to 18 and 23 to 31. The breaches relied on are:
 
(1) (Paragraph 15) That the architect failed to provide full, correct and co-ordinated information to Leach. (2) (Paragraph 16) That the architect issued 923 specified instructions which were not issued in good time and did not supply drawings and other information when requested or in time for Leach to carry out the works in a regular and orderly manner. (3) (Paragraph 17) That the architect did not administer the contract in an efficient and business-like manner and, in particular, that he failed properly to record the issue of certain drawings and gave incorrect references or confusing references to drawings in his instructions sheets.
 
(4) (Paragraph 18) That the implied representation in paragraph 8 was untrue.
 
(5) (Paragraph 21) That for these reasons Leach, having made application under clause 23 of the conditions, was entitled to an extension under sub-paragraph (f) or alternatively under the combined effect of sub-paragraphs (e) and (f) of clause 23 to an extension of 101 weeks.
 
(6) (Paragraph 22) That having made application under clauses 21(1) and 11(6) of the conditions Leach was entitled to the direct loss and/or expense there particularised.
 
(7) (Paragraphs 23 and 24) That the architect wrongly issued a certificate under clause 22 that the works ought to have been completed by 8 February 1976 and that Merton have accordingly withheld a sum as liquidated damages for delay. (8) (Paragraph 26) The architect failed to ascertain or to instruct the quantity surveyor to ascertain the direct loss and/or expenses recoverable under clauses 24(1) and/or 11(6).
 





  
  
  
  
  
  


(9) (Paragraph 27) That the architect has failed to issue a certificate of making good defects under clause 15(4). (10) (Paragraph 28) That no final measurement and valuation has been carried out and no copy of priced bills of variation supplied in accordance with clause 30(5)(a).
 
(11) (Paragraphs 29 and 30) That the architect has failed to issue a final certificate under clause 30(6) and that Merton has wrongfully withheld retention moneys.
 
(12) (Paragraph 31) That the Borough Architect retired in April 1980 and that Merton has since failed to appoint a new architect or to appoint anyone to discharge the duties of architect supervising officer under the conditions.
 
The defence and counterclaim is a lengthy document. It runs to 58 paragraphs. I do not need to summarise the paragraphs dealing with the points of claim I have mentioned though I should note in passing that Merton claims that the architect’s award of an extension of 26 weeks should be opened up and reduced to nil. The reply and defence to counterclaim is again a lengthy document, comprising 91 paragraphs. I need only refer to those paragraphs referred to in the interim award. They are:
 
(1) (Paragraph 78) It is said that "a document entitled Bill of Variations and served together with the points of defence does not constitute bills of variation and has not been prepared in accordance with clause 11 of the conditions" and is open to the criticism made in a report by Leach’s quantity surveyor.
 
(2) (Paragraph 79) That the purported bills of variation was served four years and nine months late and that "it is not now possible for the extensive errors and deficiencies therein to be put right".
 
(3) (By Paragraph 80) That insofar as the bills of variation was compiled without access to necessary information as alleged by Merton this was the fault of Merton and/or its architect and/or its quantity surveyor.
 
That is all I need say about the pleadings at this stage.
 
The Preliminary Issues
 
Preliminary Issue No 1
 
The first of the preliminary issues is directed to the terms which it is sought by paragraph 7 of the points of claim to imply though in the formulation of the preliminary issues the implied terms have been slightly modified.
 
Before turning to the detailed sub-paragraphs it will be convenient to make two general observations. First, the cases in which the courts have considered whether a term should be implied into a





  
  
  
  
  
  


contract cover a very wide variety of situations. The only feature common to them all is that the court is asked to add to or deduce from a contract something which may fairly be said to be a part but not an explicit part of the rights and obligations conferred or imposed by the contract.
 
The wide variety of circumstances in which the court is invited to take that step was emphasised by Lord Wilberforce in Liverpool City Council v Irwin [1977] AC 239. The main issue in that case was whether there should be read into tenancies of flats in a tower block an obligation on the part of the landlord to keep the means of access to the flats in reasonable repair.
 
Lord Wilberforce, having observed that the contracts of tenancy were partly but not wholly in writing that the landlords reserved the common parts including lifts and stairs and that the block comprised a number of flats and maisonettes, the respondent being on the ninth floor, the occupiers of which, though they would have to use the common parts, were not under any express obligation to maintain them, said (at p253):
 
"To say that the construction of a complete contract out of these elements involves a process of ‘implication’ may be correct; it would be so if implication means the supplying of what is not expressed. But there are varieties of implication which the courts think fit to make and they do not necessarily involve the same process. Where there is, on the face of it, a complete, bilateral contract, the courts are sometimes willing to add terms to it, as implied terms: this is very common in mercantile contracts where there is an established usage: in that case the courts are spelling out what both parties know and would, if asked, unhesitatingly agree to be part of the bargain. In other cases, where there is an apparently complete bargain, the courts are willing to add a term on the ground that without it the contract will not work-this is the case, if not of The Moorcock (1899) 14 PD 64 itself on its facts, at least the doctrine of The Moorcock as usually applied. This is, as was pointed out by the majority of the Court of Appeal, a strict test -though the degree of strictness seems to vary with the current legal trend-and I think that they were right not to accept it as applicable here. There is a third variety of implication, that which I think Lord Denning MR favours, or at least did favour in this case, and that is the implication of reasonable terms. But though I agree with many of his instances, which in fact fall under one or other of the preceding heads, I cannot go so far as to endorse his principle; indeed it seems to me, with respect, to extend a long, and undesirable, way beyond sound authority.
 
The present case, in my opinion, represents a fourth category, or I would rather say a fourth shade on a continuous spectrum. The court here is simply concerned to establish what the contract is, the parties





  
  
  
  
  
  


not having themselves fully stated the terms. In this sense the court is searching for what must be implied."
 
Lord Cross drew the same distinction at p257, where he said:
 
"When it implies a term in a contract the court is sometimes laying down a general rule that in all contracts of a certain type - sale of goods, master and servant, landlord and tenant and so on - some provision is to be implied unless the parties have expressly excluded it. In deciding whether or not to lay down such a prima facie rule the court will naturally ask itself whether in the general run of such cases the term in question would be one which it would be reasonable to insert. Sometimes, however, there is no question of laying down any prima facie rule applicable to all cases of a defined type but what the court is being in effect asked to do is to rectify a particular--often a very detailed--contract by inserting in it a term which the parties have not expressed. Here it is not enough for the court to say that the suggested term is a reasonable one the presence of which would make the contract a better or fairer one; it must be able to say that the insertion of the term is necessary to give -as it is put -’business efficacy’ to the contract and that if its absence had been pointed out at the time both parties -assuming them to have been reasonable persons -would have agreed without hesitation to its insertion. The distinction between the two types of case was pointed out by Viscount Simmonds and Lord Tucker in their speeches in Lister v Romford Ice and Cold Storage Co Ltd [1957]AC 555, 579 and 594, but I think that Lord Denning MR in proceeding-albeit with some trepidation-to ‘kill off’ MacKinnon LJ’s ‘officious bystander’ Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206, 227 must have overlooked it."
 
He went on to reject an argument that an obligation on the part of a landlord to keep the common parts in repair could be implied by the application of the officious bystander test but later agreed with the majority that it was implicit in the relationship between the landlord and the tenants in the circumstances of that case that the landlords were to use reasonable care to keep the common parts in reasonable repair and efficiency. Lord Edmund-Davies similarly rejected the argument that some such obligation should be implied to give business efficacy to the contract or from the application of the "officious bystander test" but agreed that such an obligation was placed on the landlords "by the general law, as a legal incident of this kind of contract, which the landlords must be assumed to know as well as anyone else".
 
It is important to bear in mind the different nature of these processes of "supplying what is not expressed" because (as the decision in Irwin v Liverpool County Council demonstrates) limitations appropriate to a process of implication at one end of the





  
  
  
  
  
  


spectrum may not be applicable to the process of implication at the other end of the spectrum. At one end of the spectrum the court imports into a contract apparently complete a term which on examination of the surrounding circumstances can be seen to be one which was the obvious but unexpressed intention of the parties or (if it is a different test) one which must of necessity be implied to give business efficacy to the contract. Similarly the court may import a term because it is customary in the trade (though one of the parties may have been unaware of the custom) or by virtue of some statutory provision (though there neither of the parties may have been actually aware of it). In a case where it is sought to import a term on the ground that it was an obvious but unexpressed part of the agreement between the parties or to give business efficacy to the contract it is for the party who seeks to import that term to establish the grounds of the implication and also to show that the term can be formulated with reasonable precision. At the other end of the spectrum the process of implication is one of spelling out or deducing what is implicit in the contract in the sense of being part of the legal context appropriate to contracts generally or to contracts of the particular type under consideration and so inherent in the legal relationship between the parties created by the contract. In such cases it may not be possible to formulate that which it is sought to imply with any degree of precision. This is stressed by Lord Simmonds in Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 where the question was whether an employer was obliged by a contract of employment to ensure that the driver of one of his vehicles was protected by insurance against third party claims. He said at p 576:
 
"For the real question becomes, not what terms can be implied in a contract between two individuals who are assumed to be making a bargain in regard to a particular transaction or course of business; we have to take a wider view, for we are concerned with a general question, which, if not correctly described as a question of status, yet can only be answered by considering the relation in which the drivers of motor-vehicles and their employers generally stand to each other. Just as the duty of care, rightly regarded as a contractual obligation, is imposed on the servant, or the duty not to disclose confidential information (see Robb v Green [1895] 2 QB 315), or the duty not to betray secret processes (see Amber Side and Chemical Co v Menzel [1913] 2 Ch 239), just as a duty is imposed on the master not to require his servant to do any illegal act, just so the question must be asked and answered whether in the world in which we live today it is a necessary condition of the relation of master and man that the master should, to use a broad colloquialism, look after the whole matter of insurance. If I were to try to apply the familiar tests where the





  
  
  
  
  
  


question is whether a term should be implied in a particular contract in order to give it what is called business efficacy, I should lose myself in the attempt to formulate it with the necessary precision. The necessarily vague evidence given by the parties and the fact that the action is brought without the assent of the employers shows at least ex post facto how they regarded the position. But this is not conclusive for, as I have said, the solution of the problem does not rest on the implication of a term in a particular contract of service but upon more general considerations".
 
Lord Wilberforce, after referring to this passage, said:
 
"We see an echo of this in the present case, when the majority in the Court of Appeal, considering a ‘business efficacy term’, ie a ’Moorcock’ term... found themselves faced with five alternative terms and therefore rejected all of them. But that is not, in my opinion, the end, or indeed the object, of the search."
 
As will be seen, the terms which it is sought to imply in the instant case fall within what Lord Wilberforce described as his fourth category.
 
The second general observation relates to the position of the architect. The case for Merton, which is central to its contentions on this and other issues, is that the architect is not, under the contract, the servant or agent of the building owner or employer. It is said that the architect is introduced into the conditions solely to hold the ring between the building owner and the contractor. The contractor when he enters into the contract is free to price and plan the work as he thinks fit. He is free in the course of carrying out the work to alter his original plan to meet unexpected difficulties. The contract recognises that his planning and pricing may be affected by circumstances beyond his control and for which he cannot fairly be held to be responsible. Moreover the building owner may require the works contracted for to be varied or additional work to be carried out. The contract provides an elaborate and, it is said, exhaustive machinery to meet these divergences and to ensure that the contractor is properly compensated. At the same time this machinery is designed to protect the building owner both from excessive delay and from unreasonable escalation of costs. The machinery embodied in the contract (in particular in clauses 11, 23 and 24) is designed to achieve a fair balance between the conflicting interests of contractor and building owner. Central to that machinery is the architect. He is introduced to hold the balance between a contractor and a building owner. In fulfilling that role he does not act as a servant or agent of either of them, neither therefore is responsible for any act or failure to act on his part. The contract provides the contractor with express





  
  
  
  
  
  


remedies if the architect fails to carry out some administrative duty (for instance to supply instructions or drawings requested by the contractor in due time). Insofar as the contract confers discretion on the architect, both the contractor and the building owner have the right to refer his decisions to arbitration. Viewed in that way, it is said, the architect acts independently from both contractor and building owner.
 
I do not think this is a possible view. It is to my mind clear that under the standard conditions the architect acts as the servant or agent of the building owner in supplying the contractor with the necessary drawings, instructions, levels and the like and in supervising the progress of the work and in ensuring that it is properly carried out. He will of course normally though not invariably have been responsible for the design of the work. There are very few occasions when a building owner himself is required to act directly without the intervention of the architect. They are conveniently summarised in the interim award in the answer to Preliminary Issue No 10. To the extent that the architect performs these duties the building owner contracts with the contractor that the architect will perform them with reasonable diligence and with reasonable skill and care. The contract also confers on the architect discretionary powers which he must exercise with due regard to the interests of the contractor and the building owner. The building owner does not undertake that the architect will exercise his discretionary powers reasonably; he undertakes that although the architect may be engaged or employed by him he will leave him free to exercise his discretions fairly and without improper interference by him.
 
A contractor must be prepared to be willing to accept a contract which confers these discretionary powers on the servant or agent of the building owner firstly because the "architect/supervising officer" is normally a qualified architect (and if he is not he will be a responsible employee with experience of building works) and in either case will be under a duty to act fairly between the parties; secondly because (as was made clear by the Court of Appeal in Northern Regional Health Authority v Crouch [1984] QB 664; 26 BLR 1) his decision is subject to review by an arbitrator appointed under clause 35. As Sir John Donaldson M R pointed out at [1984] QB 670; 26 BLR 33:
 
"(Clause 35) goes far further than merely entitling [the arbitrator] to treat the [arbitrator’s] certificate, opinions, decisions, requirements and notices as inconclusive in determining the rights of the parties. It enables, and in appropriate cases requires, him to vary them and so create new rights, obligations and liabilities in the parties. This is not





  
  
  
  
  
  


a power which is normally possessed by any court and again it has a strong element of personal judgment by an individual nominated in accordance with the agreement of the parties."
 
As I have said, to the extent that the architect exercises these discretions his duty is to act fairly; "the building owner and the contractor make their contract on the understanding that in all such matters the architect will act in a fair and unbiased manner and it must therefore be implicit in the owner’s contract with the architect that he shall not only exercise due care and skill but also reach such decisions fairly, holding the balance between his client and the contractor" (see Sutcliffe v Thackrah [1974] AC 727 per Lord Reid at p 737; 4 BLR 16 at 21).
 
That the architect under these (and similar) standard conditions acts as the servant or agent of the building owner has been recognised in many cases and is so stated in the leading text books. The contention now advanced by Mr Tackaberry so far as I am aware has never before been advanced. Mr Tackaberry submitted that the position of the architect must be re-considered in the light of the decision of the Court of Appeal in Crouch. I can see nothing in the judgments in Crouch which is in any way inconsistent with the accepted view of the role of the architect. It is now clear that insofar as the architect exercises discretionary powers and the exercise of his discretion can be reviewed by the arbitrator, the arbitrator stands in the shoes of the architect and does not exercise a purely arbitral role. To that extent the arbitrator (as Mr Tackaberry expressed it) is part of the machinery of the contract. But to the extent that the architect acts as the agent or servant of the building owner in discharging obligations imposed on the building owner by the contract his acts are not subject to review by the arbitrator - though they may found a claim for damages for breach of contract the extent of which will fall to be determined by the arbitrator.
 
I turn now to the terms which Leach seeks to imply. Implied Terms (i) and (ii) are as follows:
 
(i) [Merton] would not hinder or prevent Leach from carrying out their obligations in accordance with the terms of the contract [and from executing the works in a regular and orderly manner].
 
(ii) [Merton] would take all steps reasonably necessary to enable [Leach] so to discharge their obligations [and to execute the works in a regular and orderly manner].
 
The arbitrator held that these terms ought to be implied.
 
In my judgment, the arbitrator was clearly right as regards the first of these terms. Vaughan Williams LJ observed in Barque Quilpue Ltd v Brown [1904] 2 KB 261 at 274:





  
  
  
  
  
  


"There is an implied contract by each party that he will not do anything to prevent the other party from performing a contract or to delay him in performing it. I agree that generally such a term is by law imported into every contract."
 
The implication of such a term seems to me to fall clearly within Lord Wilberforce’s fourth category. The implied undertaking not to do anything to hinder the other party from performing his part of the contract may, of course, be qualified by a term express or to be implied from the contract and the surrounding circumstances. But the general duty remains save so far as qualified. It is difficult to conceive of a case in which this duty could be wholly excluded. "Parties are free to agree to agree whatever exclusions or modifications of all kinds of obligations as they please within the limits that the agreement must retain the legal characteristics of a contract" (see Photo productions Ltd v Securicor Ltd [1980] AC 827 per Lord Diplock at 850) (my emphasis). What is less clear is whether on the facts pleaded there has been any breach of the general duty modified as it must be in the way I have indicated. However that is a matter which the arbitrator will have to consider in the second stage.
 
As regards the second of these two terms it is well settled that the courts will imply a duty to do whatever is necessary in order to enable a contract to be carried out. The principle was expressed in a well-known passage in the speech of Lord Blackburn in MacKay v Dick (1881) 6 AC 251 where he said (at p263):
 
"Where in a written contract it appears that both parties have agreed that something should be done which cannot effectively be done unless both concur in doing it, the construction of the contract is that each agrees to do all. that is necessary to be done on his part for the carrying out of that thing though there may be no express words to that effect."
 
However, the courts have not gone beyond the implication of a duty to co-operate whenever it is reasonably necessary to enable the other party to perform his obligations under a contract. The requirement of "good faith" in systems derived from Roman law has not been imported into English law. The limitations of the principle stated in MacKay v Dick were stressed by Devlin J (as he then was) in Mona Oil Equipment Co v Rhodesia Railways [1949] 2 All ER 1014 where he said (at p 1018):
 
"I can think of no term that can properly be implied other than one based on the necessity for co-operation. It is, no doubt, true that every business contract depends for its smooth working on co-operation, but in the ordinary business contract, and apart, of





  
  
  
  
  
  


course, from express terms, the law can enforce co-operation only in a limited degree - to the extent that it is necessary to make the contract workable. For any higher degree of co-operation the parties must rely on the desire that both of them usually have that the business should get done."
 
However it is, I think, clear that the implementation of a building contract embodying the JCT general conditions does require close co-operation between the contractor and the architect. The arbitrator in paragraph 1.ii.5 gives illustrations of situations where the contractor must rely upon the co-operation of the architect if the work is to be completed expeditiously and efficiently. Again it is recognised in all the leading text books that a contract incorporating the JCT standard terms falls within the category of contracts in which a requirement that a building owner will "do all that is necessary to bring about completion of the contract" will be implied (see the passage from Keating on Building Contracts cited by the arbitrator in paragraph 1.ii.3). In Holland Hannen & Cubitts v WHTSO (1983) 18 BLR 80 at 117 it was conceded that under the contract there in issue (which incorporated similar standard terms) "the building owner would do all things necessary to enable the contractor to carry out the work" and His Honour Judge Newey clearly thought that that concession was rightly made. For the reasons I have given I think that this implied undertaking by the building owner extends to those things which the architect must do to enable the contractor to carry out the work and that the building owner is liable for any breach of this duty on the part of the architect.
 
Implied Term (iii) This was stated in the following terms:
 
"The Architect would provide [Leach] full, correct and co-ordinated information concerning the works."
 
The arbitrator held that this term should be implied subject to the deletion of the words "full" and "co-ordinated" which he held to be unnecessary. Leach do not appeal from this part of his decision. The term as modified seems to me a particular application of the more general term in (ii); the case for Leach is that construed in the light of that implied term in the contract insofar as it imposes an obligation on the architect to supply the contractor with drawings and other information in the course of the work: it imposes an obligation to supply the contractor with accurate drawings and information.
 
The case for Merton is that clause 1(2) of the conditions expressly provides that if the contractor finds any discrepancy or divergence between the contract drawings and contract bills he must give notice





  
  
  
  
  
  


to the architect and that the architect must then give an instruction. Then "As and when from time to time may be necessary the Architect Supervising Officer, without charge to the Contractor, shall furnish him with two copies of such drawings or details as are reasonably necessary either to explain and amplify the Contract Drawings or to enable the Contractor to carry out and complete the Works in accordance with these Conditions" (clause 3(4)). The contract, it is said, thus contains a complete code which governs the provision of drawings and other information required by the contractor and in conjunction with clause 23(f) provides a remedy if the drawings or other information provided prove to be incorrect and to require correction or amplification by the architect.
 
I have found this point one of some difficulty but I am not persuaded that the arbitrator was wrong to imply this term. Clause 3(4) imposes on the architect an obligation to furnish the contractor with drawings and details as and when necessary. I agree with the arbitrator that it must have been in the contemplation of the parties that the architect would act with reasonable diligence and would use reasonable care and skill in providing this information. The contract does not impose a duty on a contractor to check the drawings to see if there are discrepancies or divergences and discrepancies and divergences may come to light at a time when it is too late for the contractor to call for an instruction or for further drawings and details under clause 3(4).
 
Mr Tackaberry criticised the observation by the arbitrator in paragraph 1(iii).7 that:
 
"The parties having agreed that there should be remedies open to the contractor if he were involved in delay or expense because of discrepancies in the contract drawings, would as reasonable people agree that there should also be a remedy if discrepancies appeared in an explanatory non-contract drawing. Knowing that they have provided in express terms for the architect to communicate full information to the contractor, they would readily agree that such information should be correct."
 
He submitted that at this point the arbitrator overlooked the principle recognised by him in paragraph 1.13 that a term will not be implied merely upon the ground that it is reasonable. I think that all the arbitrator was saying in this paragraph is that the fact that a contractor has a remedy when discrepancies or divergences are discovered in good time would not be regarded by a reasonable man familiar with the operation of the contract as absolving the building owner from liability for failure by the architect to use reasonable skill and care in supplying drawings and other information in a case where that machinery does not afford the contractor with an





  
  
  
  
  
  


adequate remedy. The general implication (which is an implication of law founded on the consideration of the provisions of the contract as a whole) is not therefore excluded by clause 3(4).
 
Implied Terms (iv) and (v). These were stated in the following terms:
 
"(iv) The architect would issue to [Leach] in due time such instructions, drawings, details and other information as [Leach] needed to carry out and complete the works in a regular and orderly manner and in accordance with their programme and/or in accordance with their obligations under the contract.
 
(v) If any variations were to be made the architect would issue variation instructions, together with such drawings, details and information as were needed by such time as would enable the claimants to carry out and complete the work in a regular and orderly manner and in accordance with their programme and/or in accordance with their obligations under the Contract."
 
The arbitrator rejected these implied terms on the ground that they are repetitive of the express provisions in the contract (in particular as regards implied term (iv) by clause 3(4) of the conditions). Leach do not appeal from this part of his decision.
 
Implied Term (vi) is as follows:
 
"The Architect will administer the Contract in an efficient and proper manner and in accordance with the practice and procedure normally followed by architects administering a substantial building contract, in particular [Leach] will contend that it was normal practice and procedure:
 
(a) That the issue of every drawing in the course of construction should be accurately recorded by means of architect’s instruction sheets or some other similar procedure.
 
(b) Every drawing issued by the architect should have a unique reference.
 
(c) Whenever a drawing is issued with any amendments a note of the amendment should be made in the note box and the fact of the amendment should be indicated by the reference."
 
The arbitrator held that a term should be implied to the effect that the architect would administer the contract in an efficient and proper manner and that the efficient and proper administration of the contract required that drawings be identified in a manner set out in sub-paragraphs (b) and (c).
 
The first part of this implied term (that the architect would administer the contract in an efficient and proper manner) seems to





  
  
  
  
  
  


me no more than a re-statement or particular application of Merton’s contractual undertaking that there would at all times be a person answering the definition of "the Architect" in clause 3 of the articles of agreement and that the architect would be a reasonably competent person and would use that degree of diligence, skill and care in carrying out the duties assigned to him under the contract that could reasonably be expected of an architect appointed to that position. As the arbitrator observed, it is clearly impossible to define accurately and comprehensively the various acts of an architect which together make up efficient and proper administration.
 
As regards sub-paragraph (b) the arbitrator held that:
 
"I accept the basic contention that the issue of each drawing used for the erection of a building should be accurately recorded. Such a requirement is necessary for business efficacy as, if there were no such record the only result could be of uncertainty in the minds of the architect and contractor leading to the possibility of endless disputes. The basic contention is therefore an example of efficient administration by the architect.
 
Sub-paragraph (b) is much more precise in its wording and reflects not only efficient and proper administration of the contract but also the normal practice followed by architects. Even in small jobs, I have not come across any examples of architect’s or consultant’s drawings which did not bear a unique reference number or cipher. The scope of the reference, ranging from simple to complicated, has undoubtedly varied but a precise, unique reference other than a description of the contents or subject-matter of the drawing is invariably present. The normal practice is for an identification panel to be incorporated in the drawing in a standard position, usually in the bottom right-hand corner of the drawing."
 
And then he sets out the information normally contained in that panel. He continued:
 
"Therefore I have no hesitation in accepting such a procedure as an example of proper and efficient administration by the architect."
 
His conclusions on sub-paragraph (c) were that:
 
"Sub-paragraph (c) states an objective which is undoubtedly highly desirable. It is well accepted in the building industry that certain drawings are amended on more than one occasion and that it is neither possible nor practicable to withdraw all earlier copies. Thereby the risk arises of two apparently similar drawings containing different details and this can give rise to confusion, delay and expense. To minimise this risk, draftsmen have developed practices of adding further information to the identification panel on the





  
  
  
  
  
  


drawing to draw attention to the amendment. But the method adopted can vary from the detailed practice of recording the date, brief description of the amendment(s) made and the addition to the drawing number of a further cipher such as the letter ‘A’ for the first amendment; B’ for the second amendment and so on to the mere addition of ciphers ‘A’, ‘B’ etc or ‘/ 1’,’/2’ etc to the original drawing number. I therefore consider that the procedure described is over-precise in requiring a note of the amendments but I accept that the fact of the amendment should be indicated by an addition to the reference number or cipher."
 
I feel considerable doubt whether a finding in these terms is appropriate to Stage 1 of the arbitration or one which the court can be asked to review on an application for the determination of preliminary points of law. The question what steps the architect was bound to take to discharge his duty to administer the contract in an efficient manner seems to me a matter appropriate to Stage II and one on which the arbitrator will then be entitled to rely on his expert knowledge. In this application I propose only to say I can see no ground upon which I would be justified in expressing any contrary view.
 
Preliminary Issues Nos 2, 3 and 4
 
Preliminary Issue No 2 raised the question whether Merton made the implied representation relied on in paragraph 8 of the points of claim. The arbitrator held that Merton did not make that implied representation. After observing that a statement made at a meeting referred to in paragraph 2.20 of his award did not on the face of it support the claim that Merton represented at that meeting that the design was complete, he added that at Stage II he would hear evidence of this meeting and might then be persuaded to alter his initial view. Leach do not appeal from this part of his decision. Issue No 3 related to the dates of possession and completion, which as I have said the arbitrator held to be 15 September 1972 and 14 June 1975 respectively. Then on Preliminary Issue No 4 he rejected the claim by Leach in paragraph 13 of the points of claim that the programme numbered 515 became an "agreed programme". Leach do not appeal from this part of his decision.
 
Preliminary Issue No 5 is in these terms:
 
"Did programme 515 become a specific application for instructions, drawings, details or levels within the meaning of clauses 23(f) and 24(1)(a) and, if so, when?"
 
I have already summarised the layout and content of programme





  
  
  
  
  
  


515. It will be convenient at this stage to set out the relevant provisions of clauses 23 and 24. Clause 23 starts with the words:
 
"Upon it becoming reasonably apparent that the progress of the Works is delayed, the Contractor shall forthwith give written notice of the delay to the Architect/Supervising Officer, and if in the opinion of the Architect/Supervising Officer the completion of the Works is likely to be or has been delayed beyond the Date for Completion stated in the appendix to these Conditions or beyond any extended time previously fixed under either this clause or clause 33(1)(c) of these Conditions..."
 
Then there follow a number of sub-paragraph setting out particular causes of delay, of which I need only mention:
 
"(f) by reason of the Contractor not having received in due time necessary instructions, drawings, details or levels from the Architect/ Supervising Officer for which he specifically applied in writing on a date which having regard to the Date for Completion stated in the appendix to these Conditions or to any extension of time then fixed under this clause or clause 33(1)(c) of these Conditions, was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same, or...
 
(h) by delay on the part of artists, tradesmen or others engaged by the Employer in executing work not forming part of this Contract.
 
(i) by reason of the opening up for inspection of and work covered up or of the testing of any of the work, materials or goods in accordance with clause 6(3) of these Conditions (including making good in consequence of such opening up or testing), unless the inspection or test showed that the work, materials or goods were not in accordance with this Contract..."
 
Clause 23 then continues:
 
"then the Architect/Supervising Officer shall so soon as he is able to estimate the length of the delay beyond the date or time aforesaid and make in writing a fair and reasonable extension of time for completion of the Works, Provided always that the Contractor shall use constantly his best endeavours to prevent delay and shall do all that may be reasonably required to the satisfaction of the Architect/ Supervising Officer to proceed with the Works."
 
Clause 24 should, I think, read in full:
 
"(1) If upon written application being made to him by the Contractor the Architect/Supervising Officer is of the opinion that the Contractor has been involved in direct loss and/or expense for which he





  
  
  
  
  
  


would not be reimbursed by a payment made under any other provision in this Contract by reason of the regular progress of the Works or any part thereof having been materially affected by:
 
(a) The Contractor not having received in due time necessary instructions, drawings, details or levels from the Architect/ Supervising Officer for which he specifically applied in writing on a date which having regard to the Date for Completion stated in the appendix to these Conditions or to any extension of time then fixed under clause 23 of clause 33(1)(c) of these Conditions, was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same; or
 
(b) The opening up for inspection of any work covered up or the testing of any of the work, materials or goods in accordance with clause 6(3) of these Conditions (including making good the consequences of such opening up or testing), unless the inspection or test showed that the work, material or goods were not in accordance with this Contract; or
 
(c) Any discrepancy in or divergence between the Contract Drawings and/or the Contract Bills; or
 
(d) Delay on the part of the artists, tradesmen or others engaged by the Employer in executing work not forming part of this Contract; or
 
(e) Architect’s/Supervising Officer’s instructions issued in regard to the postponement of any work to be executed under the provisions of this Contract;
 
and if the written application is made within a reasonable time of it becoming apparent that the progress of the Works or of any part thereof has been affected as aforesaid, then the Architect/Supervising Officer should either himself ascertain or instruct the Quantity Surveyor to ascertain the amount of such loss and/or expense. Any amount from time to time so ascertained shall be added to the Contract Sum, and if an Interim Certificate is issued after the date of ascertainment any such amount should be added to the amount which would otherwise be stated as due in such Certificate.
 
(2) The provisions of this Condition are without prejudice to any other rights and remedies which the Contractor may possess."
 
It was common ground (at least before me) that Programme 515 meets the requirement that an application under clause 23(f) or clause 24(1)(a) must be an application in writing. The questions are, first, whether programme 515 was capable of being treated as a document whereby Leach "specifically applied" for drawings etc and if it was whether Leach applied on a date which (having regard to the date for completion and any extension) "was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for [Leach] to receive the same".





  
  
  
  
  
  


As to the first of these two questions, I can see no reason why a document which like Programme 515 sets out in diagrammatic form the planned programme of the work and indicates by conventional signs the dates by which instructions, drawings, details and levels are required should not be a sufficiently specific application to meet the requirements of these clauses. What is called for is a document which indicates whether by words or by the use of conventional signs or in any other form what the contractor requires and when he requires it and which does so in sufficient detail to enable the architect to understand clearly what is required of him. The arbitrator held that Programme 515 meets that requirement and I see no reason to differ from him.
 
As to the second question it seems to me that what the parties contemplated by these provisions was first that the architect was not to be required to furnish instructions, drawings etc unreasonably far in advance of the date when the contractor would require them in order to carry out the work efficiently nor to be asked for them at a time which did not give him a reasonable opportunity to meet the request. It is true that the words "on a date" grammatically govern the date on which the application is made. But they are I think capable of being read as referring to the date on which the application is to be met. That construction seems to me to give effect to the purpose of the provision - merely to ensure that the architect is not troubled with applications too far in advance of the time when they will be actually needed by the contractor (thus disrupting unnecessarily the work of the architect and his staff) and to ensure that he was not left with insufficient time to prepare them. If that is right then there seems to me to be no reason why an application should not be made at the commencement of the work for all the instructions etc which the contractor can foresee will be required in the course of the works provided that the date specified for delivery of each set of instructions meets these two requirements. Of course if he does so and the works do not progress strictly in accordance with his plan some modification may be required to the prescribed timetable and the subsequent furnishing of instructions and the like.
 
It follows that, in my judgment, the arbitrator who concluded that "Programme 515 is a specific application within the meaning of clause 23(f) and clause 24(1)(a) relating to some only of the listed items, generally described as ‘earlier operations"’ (my emphasis) took too narrow a view. To this extent I think Leach’s cross-appeal must be allowed. It does not of course follow that Programme 515 was a sufficiently specific application made at an appropriate time in relation to every item of information required, more particularly in the light of the delays and the re-arrangement of the programme for the work. But Programme 515 cannot be considered in isolation.





  
  
  
  
  
  


The arbitrator I think will have to consider in Stage II the extent to which Programme 515 in conjunction with other communications by Leach constituted a sufficiently specific application in relation to each item of information there specified and whether it was in the light of the history of the carrying out of the works requested at a time which met the requirements I have indicated.
 
It will ‘be convenient at this stage to interpose the last of the preliminary issues determined by the arbitrator, that is, Preliminary Issue No 14, which is in the following terms:
 
"Upon the true construction of clause 23 is the contractor entitled to an extension of time in respect of any cause of delay falling within sub-clauses (a) to (k) if he fails to give written notice thereof forthwith upon it becoming reasonably apparent that the progress of the works is delayed?"
 
The case for Merton is that the architect is under no duty to consider or form an opinion on the question whether completion of the works is likely to have been or has been delayed for any of the reasons set out in clause 23 unless and until the contractor has given notice of the cause of a delay that has become "reasonably apparent" or, as it has been put in argument, that the giving of notice by the contractor is a condition precedent which must be satisfied before there is any duty on the part of the architect to consider and form an opinion on these matters. The arbitrator’s answer to this question was that "a written notice from the contractor is not a condition precedent to the granting of an extension of time under clause 23".
 
I think the answer to Merton’s contention is to be found in a comparison of the circumstances in which a contractor is required to give notice on the one hand and the circumstances in which the architect is required to form an opinion on the other hand. The first part of clause 23 looks to a situation in which it is apparent to the contractor that the progress of the works is delayed (my emphasis), that is, to an event known to the contractor which has resulted or will inevitably result in delay. The second part looks to a situation in which the architect has formed an opinion that completion is likely to be or has been delayed beyond the date for completion. It is possible that the architect might know of events (in particular "delay on the part of artists, tradesmen or others engaged by the employer in executing work not forming part of this contract") which is likely to cause delay in completion but which has not caused an actual or prospective delay in the progress of the work which is apparent to the contractor. If the architect is of the opinion





  
  
  
  
  
  


that because of an event falling within sub-paragraphs (a) to (k) progress of the work is likely to be delayed beyond the original or any substituted completion date he must estimate the delay and make an appropriate extension to the date for completion. He owes that duty not only to the contractor but also to the building owner. It is pointed out in a passage from Keating on Building Contracts (4th Edn) at p 346, which is cited by the arbitrator, that if the architect wrongly assumes that a notice by the contractor is a condition precedent to the performance of the duty of the architect to form, an opinion and take appropriate steps:
 
"... and in consequence refuses to perform such duties the employer loses his right to liquidated damages. It may therefore be against the employer’s interests for an architect not to consider a cause of delay of which late notice is given or of which he has knowledge despite lack of notice."
 
The construction advanced by Merton in effect involves reading the words "and if in the opinion of the architect" as equivalent to "then if in the opinion of the architect". That, I accept, is grammatically the most natural way of reading clause 23. But, as I have said, it leads to a consequence which cannot have been intended: that the architect can ignore events which he knows are likely to cause delay beyond completion date even though, to the knowledge of the architect, the contractor is not aware that the progress of the works is delayed. A more rational result can be achieved if the word "and" is taken as conjoining two related but independent duties.
 
It does not, of course, follow that failure by the contractor to give notice of the cause of a delay when it is reasonably apparent to him that "the progress of the works is delayed" will leave his right to an extension of time unaffected. Failure to give notice is a breach of contract on the part of the contractor. I agree with the learned author of Keating on Building Contracts that if no notice or late notice is given by the contractor and in consequence the architect does not become aware that the completion of the works is likely to be delayed beyond completion date the architect can
 
"... take into account that the contractor was in breach of contract and must not benefit from his breach by receiving a greater extension than he would have received had the architect, upon notice at the proper time, been able to avoid or reduce the delay by some instruction or reasonable requirement".
 
Preliminary Issue No 6 is in the following terms:
 
"(i) Which, if any, of the documents listed in the further and better





  
  
  
  
  
  


particulars at paragraph 21 of the points of claim patently do constitute ‘written notice’ within the meaning of clause 23?
 
(ii) Which, if any, of the documents listed in the further and better particulars at paragraph 21 of the points of claim patently do not constitute ‘written notice’ within the meaning of clause 23?
 
(iii) Which, if any, of the documents listed in the further and better particulars at paragraph 21 of the points of claim are capable of being construed as ‘written notice’ within the meaning of clause 23?"
 
It is important to bear in mind that in this appeal the court can only decide questions of law (including questions of construction so far as those questions can be decided without reference to the surrounding circumstances). It follows that the court can only decide whether on the true construction of clause 23 and of any document purporting to be a "written notice" by the contractor within clause 23 that document either can only be construed as a written notice or is incapable of being so construed.
 
The arbitrator in paragraph 6.2 analyses the circumstances which under clause 23 must be satisfied before the contractor is required to give notice and the nature of the notice which he is required to give. In paragraph 6.3 he added (correctly I think):
 
"The ‘requirement’ that the notice must be given forthwith upon it becoming reasonably apparent that there is delay cannot be considered in this preliminary stage of the arbitration but will need to be deferred to Phase II when I can hear and consider all the relevant evidence and the following decisions are subject to that reservation."
 
There is only one point on paragraph 6.2 of his decision that calls for comment. The arbitrator held that it follows from clause 23 that "the particular delay must have started and not be an anticipated delay". That observation is of course directed to the requirement that it has become reasonably apparent to the contractor that the progress of the works is delayed. I agree with the arbitrator that under this provision the contractor is not required to give notice of delay which will be caused by some expected future event however probable the occurrence of that future event may be. But the requirement should not I think be construed as requiring the contractor to give notice only if the planned progress of the works has already fallen behind schedule. It may I think also comprehend a case where by reason of some event which has happened the planned programme will inevitably be delayed (because, for instance, the contractor has avoided delay in levelling a site which gave rise to unexpected difficulty by diverting resources from some other task and it is apparent that the continued diversion of those





  
  
  
  
  
  


resources to enable the site to be levelled on time will inevitably result in delay in other parts of the work for which those resources are required). It would therefore be wrong as I see it to take a document as incapable of constituting a notice within clause 23 (as Mr Tackaberry invited me to do) solely on the ground that it refers to a future delay. Subject to that qualification I think the requirements of clause 23 are accurately summarised by the arbitrator in paragraph 6.9 where he concludes that the requirements of a notice are:
 
"1. It must be in writing. 2. It must specify a cause of delay. 3. Which has started to affect progress. 4. It must not relate to a future anticipated delay.
 
However in applying these requirements it must be remembered that the conditions lay down no special form for the notice and that letters from building contractors do not reach the standard of precision in expression achieved by counsel in drafting pleadings. In my opinion if the document conveys the required information and serves to put the architect on notice of the delay it has met the above requirements."
 
It became clear in the course of the hearing that Merton’s main objection to the arbitrator’s findings on this issue is founded on the contention that a document cannot be considered a proper notice under clause 23 unless it specifies a cause of delay and does so with sufficient detail to enable the architect to form an opinion whether the cause of delay falls within any of sub-paragraphs (a) to (k) and if it does whether any and if so what extension period for completion should be granted. It is said that, for instance, if the cause of delay specified is that the contractor has not received in due time instructions, drawings, details or levels within sub-paragraph (f) he must specify in his notice what it is the non-receipt of which is causing delay.
 
The arbitrator rejected this contention because:
 
"... of the different criteria which apply to the notice and the opinion. Further, if [Merton’s] submission is correct, the contractor’s notice would automatically be limited to those causes of delay which are listed in sub-clauses (a) to (k) of clause 23 and that is directly contradictory to the opening words of the clause."
 
He added by way of explanation:
 
"In my opinion the intention of the contractor’s notice is simply to warn the architect of the current situation regarding progress. It is then up to the architect to monitor the position in order to form his





  
  
  
  
  
  


opinion. In later issues consideration is given to the need for an architect to seek additional information from a contractor to enable the architect to form his opinion and/or determine the amount of any extension he decides to grant. But the need, if any, for such additional information is not in my opinion relevant to this issue."
 
It will be apparent from what I have already said in relation to Preliminary Issue No 14 that I agree with the arbitrator on both these points. Clause 23 imposes on the architect the duty of considering whether completion of the works is likely to be or has been delayed beyond the date for completion by way of the causes there set out and if it has whether any and if so what extension should be granted. That duty is owed both to the contractor and the building owner. The architect is entitled to rely on a contractor to play his part by giving notice when it has become apparent to him that the progress of the works is delayed. If the contractor fails to give notice forthwith upon it becoming so apparent he is in breach of contract and that breach can be taken into account by the architect in deciding whether he should be given an extension of time. But the architect is not relieved of his duty by the failure of the contractor to give notice or to give notice promptly. He must consider independently in the light of his knowledge of the contractor’s programme and of the progress of the works and of his knowledge of other matters affecting or likely to affect the progress of the works, in particular those specified in the numbered sub-paragraphs, whether completion is likely to be delayed for any of the stated causes. If necessary he must make his own inquiries, whether from the contractor or others.
 
It does not of course follow that the content of a document which is capable of being considered a notice within clause 23 is irrelevant to the issues in the arbitration. It is the duty of the contractor when it is apparent to him that progress of the works is delayed to give the architect as much information as he can as to the cause of the delay so as to assist the architect in performing his duty. The contractor does not discharge his duty until he has done so. Thus the contractor may be in breach of his duty to give notice forthwith (with the consequences I have indicated) if he gives a notice which does not adequately explain what is to the knowledge of the contractor the cause of the delay and in breach of duty notwithstanding that he subsequently amplifies the notice by giving that information.
 
The question whether notice was given "forthwith" by the contractor and so the question whether a document capable of constituting a notice was an adequate notice discharging the contractor’s duty and the consequences as regards the contractor’s right





  
  
  
  
  
  


to an extension of time are questions which the arbitrator will have to decide in Stage 11.
 
Applying these principles to the documents referred to in this issue (for the most part contractor’s request sheets) in my judgment none of those which the arbitrator has held to constitute notice can be disregarded on the ground it was incapable as a matter of law of constituting or forming part of notice within clause 23. As I have said, the question whether it was adequate and prompt notice is not one which can be decided as a preliminary issue. There is no cross appeal from the decision of the arbitrator that certain documents patently did not constitute written notice within clause 23. Save only that Mr Loyd on behalf of Leach submitted that one document (contractor’s request sheet No 83/1) was incorrectly classified and rejected by the arbitrator as a reference to possible future delays and that this document should be remitted to the arbitrator for his further consideration. However in my judgment the arbitrator will be entitled to take those other documents into account (including those rejected on the grounds that they referred to future delays or are in the form of reminders) in considering in Stage II the substantial question whether the contractor was in breach of duty to give proper and adequate notice and if he is what effect that ought to have upon the extension of time which ought to be granted. I will hear further argument if necessary on the question whether this specific document should be remitted to the arbitrator at this stage or whether, as I suggest, he should consider what effect should be given to it and the other documents rejected at Stage II.
 
Preliminary Issues 7 and 8, which were heard together by the arbitrator, are in the following terms:
 
"7. Did [Leach] make written application for direct loss and/or expense within the meaning of clause 24(1) and, if so, in respect of which matters was written application made and when?
 
8. Did [Leach] make written application for direct loss and/or expense within the meaning of clause 11(6) and, if so, in respect of which matters was written application made and when?"
 
I have already set out the relevant provisions of clause 24. Clause 11 deals with variations and provisional and prime cost sums. It is provided by clause 11(1) that:
 
"No variation required by the Architect/Supervising Officer or subsequently sanctioned by him shall vitiate this contract."
 
By clause 11(2) "variation" is widely defined to include:





  
  
  
  
  
  


"... the alteration or modification of the design, quality or quantity of the Works as shown upon the Contract Drawings and described by or referred to in the Contract Bills, and includes the addition, omission or substitution of any work, the alteration of the kind or standard of any of the materials or goods to be used in the Works and the removal from the site of any work, materials or goods executed or brought thereon by the Contractor for the purposes of the Works other than work materials or goods which are not in accordance with the Contract."
 
Clause 11(4) provides that, amongst other things, all variations required or sanctioned by the architect/supervising officer:
 
"... shall be measured and valued by the Quantity Surveyor who shall give the Contractor an opportunity of being present at the time of such measurement and of taking such notes and measurements as the Contractor may require. The valuation of variations and of work executed by the Contractor for which provisional sum is included in Contract Bills (other than work for which a tender has been accepted as aforesaid) unless otherwise agreed shall be in made in accordance with the following rules."
 
Then there follow rules under which, in effect, work done is to be valued in accordance with the principles underlying the ascertainment of the price for the original work. Clause 11(6) provides that:
 
"If upon written application being made to him by the Contractor, the Architect/Supervising Officer is of the opinion that a variation or the execution by the Contractor of work for which a provisional sum is included in the Contract Bills other than work for which a tender made under clause 27(g) of these conditions has been accepted has involved the Contractor in direct loss and/or expense for which he would not be reimbursed by payment in respect of a valuation made in accordance with the rules contained in sub-clause (4) of this Condition and if the said application is made within a reasonable time of the loss or expense having been incurred, then the Architect/ Supervising Officer shall either himself ascertain or shall instruct the Quantity Surveyor to ascertain the amount of such loss or expense. Any amount from time to time so ascertained shall be added to the contract sum, and if an Interim Certificate is issued after the date of ascertainment any such amount shall be added to the amount which would otherwise be stated as due in such Certificate."
 
The common features of sub-clauses 24(1) and 11(6) are first that both are "if" provisions, that is, provisions which only operate in the event that the contractor invokes them by making a written application, secondly, that if an application is made the architect





  
  
  
  
  
  


must form an opinion whether the contractor has suffered direct loss and/or expense in the circumstances of the kind there set out, thirdly, that the written application must be made within a reasonable time after a stated event and, fourthly, that the architect must then ascertain and instruct the quantity surveyor to ascertain the amount of the loss or expense which is then to be added to the contract sum. They differ in that clause 24 is concerned with loss and/or expense which stems from an interruption in the regular progress of the work by one of the causes there set out and which would not be reimbursed under the provisions of the contract as a whole, whereas clause 11(6) is directed to loss or expense which stems from a variation or the execution of work for which a provisional or prime cost sum is included in the contract bills and for which the contractor would not be reimbursed under clause 11(4); in consequence the reasonable time within which written application can be made is measured in one case from the time when it becomes apparent that the progress of the work has been affected and in the other case from the time when the loss or expense is incurred.
 
The question is whether certain documents were written applications under both clause 11(6) and 24(1) or in two instances under one or other of those sub-clauses alone. The question of principle is whether an application under clause 24(1) or 11(6) must contain sufficient information to enable the architect to form an opinion on the questions whether (in the case of clause 24) the regular progress of the works has been materially affected by an event within the numbered sub-paragraphs of clause 24 or (in the case of clause 11(6)) whether the variation has caused direct loss and/or expense of the kind there described and in either case whether the loss and/or expense is such that it would not be reimbursed by a payment under other provisions of the contract or (in the case of clause 11(6)) under clause 11(4). The arbitrator’s answer to this question of principle is to be found in two paragraphs of the interim award which I should I think read in full. Having said that Merton submitted that the application must contain sufficient information on the matters which I have mentioned, the arbitrator continued
 
"I am against [Merton] on this point for three reasons. First, although I accept that the architect’s contact with the site is not on a day to day basis there are many occasions when an event occurs which is sufficiently within the knowledge of the architect for him to form an opinion that the contractor had been involved in loss or expense. Secondly, while it may be desirable for the contractor to give the fullest possible information as part of his original application, the contract does not, as it could so easily have done, require the





  
  
  
  
  
  


contractor to do so. Finally, [Merton] make a specific submission in connection with this issue that the contract clearly anticipates (not ‘requires’) that the contractor will supply sufficient information to enable the architect to form his opinion. [Merton] emphasise that the word ‘anticipates’ is a better way of describing the situation than ‘requires’. It must follow from this that the words ‘must necessarily provide’ in the first submission are inappropriate.
 
If the contractors’ application under clause 11(6) or 24(1) is confined to the bare minimum requirements of the contract and the architect does not possess from his own sources sufficient information to form the requisite opinion then I agree with [Merton] that the contract ‘anticipates’ that the architect can and will seek further information from the contractor. There is no reason why this additional information should not be requested and given orally. But I emphasise that in my view any need for additional information does not negative or reduce the effectiveness of the original application."
 
Mr Tackaberry attacked this conclusion upon the ground that the planning of the work is the task of the contractor and that he alone can know whether the regular progress of the work has been affected (for the purpose of clause 24) or whether a variation will involve him in direct loss or expense which will not be reimbursed by a measurement and valuation in accordance with clause 11(4). The contractor alone will know whether, for instance, a delay in giving instructions is likely to cause him otherwise uncompensated loss or expense. He must then inform the architect so that the architect can consider whether he should issue an instruction forthwith or whether if it is impractical to do so he should ask the contractor to keep records to quantify the alleged loss. The contractor it is said must have had grounds for making the application under clause 24 or 11(6). It is reasonable therefore to construe these clauses as requiring him at least to make those reasons explicit in his application.
 
This argument is at first sight an impressive one, but on further examination it appears to me to involve reading too much into these clauses. The contractor must act reasonably: his application must be framed with sufficient particularity to enable the architect to do what he is required to do. He must make his application within a reasonable time: it must not be made so late that, for instance, the architect can no longer form a competent opinion on the matters on which he is required to form an opinion or satisfy himself that the contractor has suffered the loss or expense claimed. But in considering whether the contractor has acted reasonably and with reasonable expedition it must be borne in mind that the architect is not a stranger to the work and may in some cases have a very detailed knowledge of the progress of the work and of the contractor’s planning. Moreover, it is always open to the architect to call for





  
  
  
  
  
  


further information either before or in the course of investigating a claim. It is possible to imagine circumstances where the briefest and most uninformative notification of a claim would suffice: a case, for instance, where the architect was well aware of the contractor’s plans and of a delay in progress caused by a requirement that works be opened up for inspection but where a dispute whether the contractor had suffered direct loss or expense in consequence of the delay had already emerged. In such case the contractor might give a purely formal notice solely in order to ensure that the issue would in due course be determined by an arbitrator when the discretion would be exercised by the arbitrator in the place of the architect.
 
I am not therefore persuaded that the arbitrator erred in principle in his approach to the documents relied on by the contractor. The substantial question, whether notices were given within a reasonable time measured from the event specified in clauses 24(1) and 11(6) and, in cases within clause 24(1), under which sub-paragraph of clause 24(1) a notice should be treated as having been given will have to be decided in Stage II.
 
Preliminary Issue Number 9 is in the following terms:
 
"Do the terms of the contract permit [Leach] to recover direct loss and/or expense under Clause 11(6) or 24(1) in respect of any alleged event when it is not possible for [Leach] to state in respect of any such alleged event the amount of loss and/or expense attributable thereto?"
 
Before the arbitrator it was agreed that in the light of the decision of Donaldson J (as he then was) in Crosby v Portland Urban District Council (1967) 5 BLR 121 he was bound to give an affirmative answer to this question. Counsel for Merton then submitted that six conditions must be satisfied before Leach can recover under clause 11(6) or 24(1) a rolled up sum which represents loss or expense claimed as attributable to more than one of the heads of claim specified in clause 11(6) and 24(1) in a case where the loss or expense attributable to each head of claim cannot be separately identified. The arbitrator concluded that the question which if any of those six conditions (all of which were satisfied by Crosby) had to be satisfied before a rolled up award could be made should be deferred to Stage II.
 
In this appeal I have been invited by counsel for Merton not to follow the decision of Donaldson J.
 
In Crosby an arbitrator stated no less than 29 questions of law in the form of a special case for the decision of the court pursuant to section 21(1) of the Arbitration Act 1950. The factual background





  
  
  
  
  
  


was complex and concerned the application of a different standard form of contract: the ICE Conditions of Contract. The relevant findings of fact by the arbitrator were as follows:
 
"I make the following findings of fact:
 
(a) The contract time put forward by the claimants in their tender was 52 weeks;
 
(b) The total time from the date of starting work on 17 August 1959 to the date of the final certificate of completion on 6 July 1961 was 98 weeks which exceeded the contract time by 46 weeks.
 
(c) The claimants were delayed in the execution of the works.
 
(d) Part of this delay arose out of matters for which the claimants were responsible under the terms of the contract and for which the claimants were not entitled to any extension of time or to any money payment.
 
Part of the delay arose out of matters for which the claimants were responsible and for which the claimants are not entitled to any money payment but for which they were entitled subject to the provisions of clause 44 of the ICE Conditions of Contract to an extension of time.
 
Part of the delay arose out of matters for which the respondents were solely responsible and work was suspended from time to time on the instructions of the engineer.
 
Out of a total excess time of 46 weeks I find and hold that delays totalling 31 weeks were caused by matters referred to under paragraphs 7, 8, 9, 10, 15, 16, 17,18 and 19 of the points of claim for which the respondents were solely responsible and which resulted in the claimants’ overhead expenses being increased and the productivity of their plant and labour being reduced."
 
Donaldson J, after citing this passage, added this short explanation of the paragraphs in the points of claim referred to:
 
"Paragraph 7 dealt with the Stanton and Staveley pipes controversy which I have already dealt with [that controversy arose as a result of the substitution by the direction of the engineer of Staveley for the Stanton pipes there ordered by the contractor: the contract provided that the pipes might be either Staveley or Stanton pipes and the use of Staveley pipes caused the contractor to incur additional expense]. Paragraph 8 dealt with a change in the line of pipe. Paragraph 9 dealt with a further change in the line of pipe. Paragraph 10 dealt with excess excavation costs; paragraph 15 with an alleged suspension of pipelaying by order of the engineer. Paragraph 16 dealt with the direction by the engineer to backfill before testing the pipe. Paragraph 17 with a direction to test the pipe in shorter lengths than was





  
  
  
  
  
  


contemplated by the contract. Paragraph 18 with a direction as to how the pipe was to be laid and paragraph 19 with cross-connections which have already been mentioned in this judgment."
 
The arbitrator found that:
 
"The result in terms of delay and disorganisation of each of the matters referred to above was a continuing one. As each matter occurred its consequences were added to the cumulative consequence of the matters which had preceded it. The delay and disorganisation which ultimately resulted was cumulative and attributable to the combined effect of all these matters. It is therefore impracticable if not impossible to assess the additional expense caused by delay and disorganisation to any one of these matters in isolation from the other matters. The question was whether on those facts the claimants [the contractors] were entitled to any payment under the head of general claim for delay and disorganisation. That is, whether they were entitled to roll up several heads of claim into a claim for a global sum or whether they were entitled only to aggregate separate awards for separate items separately established."
 
On this issue Donaldson J said (at 15 BLR 135):
 
"The respondents say that the contract provides a most elaborate code whereby prices and rates can be varied or prescribed in almost every eventuality. They say that this code is intended to operate in relation to each piece of work separately and no provision is made for a variation of the contract price generally. Whilst they concede that an arbitrator at the end of the day may make an award of a lump sum they insist that this lump sum must be ascertained simply by adding together the individual amount which he finds to be due under each head of claim.
 
This results they say from the fact that the code in the contract provides different bases of assessment for different claims. Thus under clause 40 (suspension of work) the extra cost incurred by the contractor forms a basis of any award. Under clause 42 (failure to give possession of the site) the basis is a sum which is fair to cover the expenses incurred. Under clause 51 the value of variations has to be taken into account in ascertaining the amount of the contract price and under clause 52 the engineer has a wide discretion and may decide to use the bill of quantity rate or may fix new rates for prices or may order work to be done on a day basis in accordance with the day work schedule to the contract. The day work schedule expressly states that rates are to cover insurances, use and maintenance of ordinary plant, superintendent’s overhead charges and profit. The respondents further say if any award is to be made in respect of the effect of delay authority for it must be found in some clause of the contract other than clause 52(4) and the arbitration clause 66 and





  
  
  
  
  
  


that it is difficult to see what clauses the arbitrator invoked. In this connection I would refer to the decision of Sachs J (as he then was) in Blackburn and Sons (Poole) Ltd v Christchurch Corporation [1962] 1 Lloyd’s Rep 349.
 
The claimants disavow any intention of founding a claim upon clause 52(4) or upon clause 66. They say that where you have a series of events which can be categorised as denial of possession of part of a site, suspension of work and variations, the result is or may be the contractor incurs the extra cost by way of overhead expense and the loss of productivity. These extra costs are all recoverable directly under clause 40 or clause 42 or indirectly under clauses 51 and 52. I say ‘indirectly’ because any revised rate or price in the scheduled day work rate must include a large cost element even if they go further than this and also cover profit.
 
Since however the extent of the extra cost incurred depends on an extremely complex interaction between the consequences of the various denials, suspensions and variations it may well be difficult or even impossible to make an accurate apportionment of the total extra cost between the several causative events. An artificial apportionment could of course have been made but why they ask should the arbitrator make such an apportionment when it has no basis in reality?
 
I can see no answer to this question. Extra costs are a factor common to all these clauses and so long as the arbitrator does not make any award which contains a profit element (this being permissible under clauses 51 and 52 but not under clauses 41 and 42) and providing he ensures there is no duplication I can see no reason why he should not recognise the realities of the situation and make individual awards in respect of those parts of individual items of the claim which can be dealt with in isolation and a supplementary award in respect of the remainder of those claims as a composite whole. This is what the arbitrator has done (see the findings in paragraphs e, k and 1). He has further ensured that there is no duplication in finding (f) and there is no profit element in this particular award."
 
The case for Merton is shortly as follows. It is said that under the terms of clause 11(6) and 24(1) upon written application by the contractor the architect must form an opinion whether for the reason there set out the contractor has been involved in direct loss or expense in consequence of one of the causes there mentioned; if the architect is of the opinion that he has, the architect must ascertain or instruct the quantity surveyor to ascertain the amount of direct loss stemming from that clause. It is said that under those provisions the architect cannot make an award unless he is in a position to ascertain the direct loss stemming from a specific cause identified in the application and cannot therefore make an award if the loss





  
  
  
  
  
  


stemming from the two different causes cannot be separated and each separate part identified as the direct loss stemming from each cause. In this respect the arbitrator cannot be in any better position than the architect: although his function is not purely arbitral (he has power to open up and review any decision of the architect) nonetheless to the extent that he does so he stands in the shoes of the architect.
 
This broad submission is clearly and admittedly inconsistent with the decision of Donaldson J in Crosby. In Crosby the arbitrator rolled up several heads of claim arising under different heads and indeed claims for which the contract provided different bases of assessment. The question accordingly is whether I should follow that decision. I need hardly say that I would be reluctant to differ from a judge of Donaldson J’s experience in matters of this kind unless I was convinced that the question had not been fully argued before him or that he had overlooked some material provisions of the contract or some relevant authority. Far from being so convinced, I find his reasoning compelling. The position in the instant case is, I think, as follows. If application is made (under clause 11(6) or 24(1) or under both sub-clauses) for re-imbursement of direct loss or expense attributable to more than one head of claim and at the time when the loss or expense comes to be ascertained it is impracticable to disentangle or disintegrate the part directly attributable to each head of claim, then, provided of course that the contractor has not unreasonably delayed in making the claim and so has himself created the difficulty the architect must ascertain the global loss directly attributable to the two causes, disregarding, as in Crosby, any loss or expense which would have been recoverable if the claim had been made under one head in isolation and which would not have been recoverable under the other head taken in isolation. To this extent the law supplements the contractual machinery which no longer works in the way in which it was intended to work so as to ensure that the contractor is not unfairly deprived of the benefit which the parties clearly intend he should have.
 
Like the arbitrator, I do not think it is appropriate at this stage to consider how far each of the conditions stated in paragraph 9(6) of the award is satisfied in the instant case or to endeavour to define in more precise terms the circumstances in which a rolled up award can be made. I think I should nonetheless say that it is implicit in the reasoning of Donaldson J, first, that a rolled up award can only be made in a case where the loss or expense attributable to each head of claim cannot in reality be separated and secondly that a rolled up award can only be made where apart from that practical impossibility the conditions which have to be satisfied before an award





  
  
  
  
  
  


can be made have been satisfied in relation to each head of claim.
 
Preliminary Issue Number 10 is as follows:
 
"Where a contractor notifies the architect in writing of the alleged existence of an event which the contractor maintains qualifies under clauses 11(6) or 24(1) so as to entitle the contractor to recover such loss or expense (if any) as he may have suffered:
 
(i) Is the contractor under a duty to particularise that entitlement?
 
(ii) Is the architect under a duty to ascertain or to instruct the quantity surveyor to ascertain whether a loss and expense within the said clauses has indeed been incurred and if so its amount?
 
(iii) If the architect is under a duty as aforesaid, is that duty:
 
(a) independent of the supply of particulars as aforesaid; or
 
(b) dependent on the supply of particulars as aforesaid?
 
(iv) If the architect is under a duty as aforesaid, is the building owner liable in damages or otherwise or at all for breach thereof?
 
(v) If the contractor is under a duty as aforesaid, is he liable in damages or otherwise or at all for breach thereof?"
 
Paragraphs (i), (ii) and (iii) overlap issues 7 and 8. However, they have been separately argued and I think that, at the risk of repetition, I should express my opinion on them.
 
The arbitrator starts by summarising his conclusions under issues 7 and 8 that:
 
"The conditions of contract only require the contractor to give a simple notice of application for loss and expense, indicating under which clause the application is made".
 
He adds that it is normal practice to give such additional information but that:
 
"... any such additional information is given voluntarily and not as a contract requirement".
 
If the notice does not give the architect sufficient information for him to take the initial step of forming an opinion he must ask the contractor to furnish him with such further information as he requires for that purpose.
 
This passage in the interim award is I think open to criticism in two respects. Clauses 11(6) and 24(1) do not require the contractor to make any application. They govern the steps to be taken if notice is given. I will return to this point later. Secondly, for the reasons I





  
  
  
  
  
  


have already given, I think that if a written application is made under clauses 11(6) or 24(1) it should be made with sufficient particularity to enable the architect to know upon what question he is required to form an opinion. What in this context is a sufficient degree of particularity is a question of substance which cannot be determined in the abstract as a preliminary issue. It must be decided in the light of all the relevant circumstances including the knowledge of the architect as to the contractor’s programme and any interruption in the planned progress of the work that has occurred. It may be that in some circumstances, as I have said, a very brief and uninformative notice will suffice. If a notice does sufficiently indicate the question on which the architect is required to form an opinion it is for the architect to obtain the information which he considers necessary to enable him to do so, whether from the contractor or from some other source. If the contractor on making an application under clauses 11(6) or 24(1) fails to identify with sufficient particularity the question on which the architect is required to form an opinion he cannot recover direct loss or expense under clause 24(1). It does not follow that he has no remedy. Again I will return to this point later.
 
If the architect on application by the contractor forms an opinion favourable to the contractor it is his duty to ascertain or to instruct the quantity surveyor to ascertain the loss or expense suffered. The machinery of the contract for the payment of the contract sum and in particular the payment on issue of interim certificates then applies. The contractor must clearly co-operate with the architect or the quantity surveyor in giving such particulars of the loss or expenses claimed as the architect or quantity surveyor may require to enable him to ascertain the extent of that loss or expense; clearly the contractor cannot complain that the architect has failed to ascertain or to instruct the quantity surveyor to ascertain the amount of direct loss or expense attributable to one of the specified heads if he has failed adequately to answer a request for information which the architect requires if he or the quantity surveyor is to carry out that task.
 
(iv) This is described by the arbitrator as the central issue. It will I think be more convenient to deal with it together with Issue 11.
 
(v) I think the short answer to this question is that the contractor is not obliged to make a claim under clauses 11(6) or 24(1) at all. He is entitled to do so. If he makes a claim but fails to do so with sufficient particularity to enable the architect to perform his duty or if he fails to answer a reasonable request for further information he may lose any right to recover loss or expense under those sub-clauses and may not be in a position to complain that the architect was in breach of his duty.
 





  
  
  
  
  
  


Preliminary Issue No 11 is in the following terms:
 
"If [Leach] prove all the breaches alleged in paragraphs 14-18 and 23-31 of the point of claim (and in the further and better particulars thereof) and in paragraphs 78-80 of the reply, will they be entitled to recover sums otherwise than in accordance with clauses 11(4) and (6), 24(1) and 30 of the contract:
 
(a) In respect of the contract works as a whole?
 
(b) In respect of all breaches?
 
(c) In respect of any individual breach and, if so, which?"
 
I have already read sub-clauses 11(4) and (6) and clause 24. Clause 30 deals with the issue of the certificates by the architect during the progress and on completion of the work and for payment of the sums certified as due to the contractor. Sub-clauses (1) to (4) are concerned with interim certificates. Sub-clauses (5) and (6) which deal with the issue of the final certificate I should I think read in full:
 
"(5)(a) The measurement and valuation of the Works shall be completed within the Period of Final Measurement and Valuation stated in the Appendix to these Conditions, and the Contractor shall be supplied with a copy of the priced Bills of Variation not later than the end of the said Period and before the issue of the Final Certificate under sub-clause (6) of this Condition.
 
(b) Either before or within a reasonable time after Practical Completion of the Works the Contractor shall send to the Architect/ Supervising Officer all documents necessary for the purposes of the computations required by these Conditions including all documents relating to the accounts of nominated sub-contractors and nominated suppliers.
 
(c) In the settlement of accounts the amounts paid or payable under the appropriate contracts by the Contractor to nominated contractors or nominated suppliers (including the discounts for cash mentioned in clauses 27 and 28 of these Conditions), the amounts paid or payable by virtue of clause 4(2) of these Conditions in respect of fees or charges for which a provisional sum is included in the Contract Bills, the amounts paid or payable in respect of insurances maintained in compliance with clause 19(2) of these Conditions, the tender sum (or such other sum as is appropriate in accordance with the terms of the tender) for any work for which a tender is made under Clause 27(g) of these Conditions is accepted and the value of any work executed by the Contractor for which a provisional sum is included in the Contract Bills shall be set against the relevant prime costs or the provisional sum mentioned in the Contract Bills or





  
  
  
  
  
  


arising under Architect/Supervising Officer’s instructions issued under Clause 11(3) of these Conditions as the case may be, and the balance after allowing in all cases pro rata the contractor’s profit at the rate shown in the Contract Bill shall be added to or deducted from the Contract Sum provided that no deduction shall be made in respect of any damages paid or allowed to the Contractor or by any sub-contractor or supplier.
 
(6) So soon as is practicable but before the expiration of the period the length of which is stated in the appendix to these Conditions from the date of Defects Liability Period also stated in said appendix or from completion of making good defects under Clause 15 of these Conditions or from receipt by the Architect/Supervising Officer of the documents referred to in paragraph (b) of sub-clause (5) of this Condition, whichever is the latest, the Architect/Supervising Officer shall issue the Final Certificate. The Final Certificate shall state:
 
(a) The sum of the amount paid to the Contractor under the Interim Certificates and the amount named in the said appendix as Limit of Retention Fund, and
 
(b) The Contract Sum adjusted as necessary according to the terms of these Conditions."
 
And then it provides for the payment of the balance between those two sums.
 
Sub-clause (7) provides that unless there is an appeal to an arbitrator a final certificate is to be conclusive evidence that the works have been carried out "and that any necessary effect has been given to all the terms of this contract which require adjustment to be made to the contract sum, except and insofar as any such maintenance certificate is erroneous by reason of..." and there follow exceptions for fraud and dishonest concealment, latent defects and accidental errors.
 
It is common ground that insofar as the contract imposes an obligation to be performed by the building owner (for instance, to give possession of the site) and contains no express provisions specifying the consequences of a breach of such an obligation (by, for instance, permitting an extension of time for completion of the works as in clause 21 if and so far as it applies to a delay in giving possession) the breach of such an obligation founds an obligation to pay damages to the contractor for the loss occasioned by the breach.
 
But, it is said, save in regard to paragraph 31 of the points of claim (the failure of Merton to appoint an architect in succession to the Borough Architect (who retired in April 1980)) the obligations, breaches of which are relied on to found a claim for damages, are obligations which by the terms of the contract, express or implied, are imposed upon the architect. The case for Merton is that the





  
  
  
  
  
  


contract provides an exhaustive machinery whereby the contractor and the building owner can protect themselves from loss flowing from any failure of the architect to perform any duty falling to be performed by him or, so far as he is required to make a decision, any adverse decision. Insofar as the architect is required to carry out any duty which does not involve the exercise of discretion (for instance the issue of instructions, drawings and so forth specifically requested by the contractor) the contractor’s remedy for the failure by the architect to carry out that duty is provided within the four corners of the contract - in the instance given his remedy is to apply for an extension of time and for compensation for any direct loss or expense consequent on the delay. Insofar as the architect exercises a discretion or acts (as it has been said) as a certifier the contractor is entitled to refer the matter to an arbitrator who (under clause 35(3)) will stand in the shoes of the architect and can review the matter in the same manner as if the certificate or decision had not been given. The arbitrator is himself part of the machinery for correcting any failure or mistake on the part of the architect. So, it is said, there is no room for the imposition of any secondary obligation on the part of Merton to pay compensation for any such failure or mistake.
 
These submissions largely repeat the submissions made on behalf of Merton in relation to issues numbers 1 and 10 and I have already given my reasons for rejecting them. In my judgment under the contract Merton undertook to ensure that there would at all times be a person who would carry out the duties to be performed by the architect and that he would perform those duties with reasonable diligence, skill and care and that where the contract required the architect to exercise his discretion he would act fairly. It is true that the contract contains an elaborate machinery designed to enable the contractor to spell out in detail steps which he requires the architect to take in relation to some specific matter. But the machinery is clearly not exhaustive. An example will make this clear. One of the allegations in the points of claim is that the architect did not perform the duty imposed on him by clause 30(5)(a) to supply Leach with priced bills of variation. It is now too late for bills of variation to be prepared. After the arbitrator had given his award experts were appointed by both parties to agree the quantum of the claim under clause 11(4). I understand that a figure has been agreed. What is said by Leach is that although a figure has been agreed the calculation of that sum cannot be treated as equivalent to priced bills of variation and that in the absence of priced bills of variation Leach and its advisers are deprived of information essential to the calculation of other claims: in particular under clauses 11(6) and 24(1).
 
Moreover there is a clear indication in the contract that the





  
  
  
  
  
  


draftsman contemplated that the contractor might have parallel rights to claim compensation under the express terms of the contract and to pursue claims for damages. That arises under clause 24(2) which I have already read and which, of course, expressly provides that the provisions of the conditions are to be without prejudice to other rights and remedies of the contractor. The effect of clause 24(2) (as I understand it) is this. Clause 24(1) specifies grounds upon which the contractor is entitled to make a claim for reimbursement of direct loss or expense for which he would not otherwise be reimbursed by a payment made under the other provisions of the contract. The grounds specified may or may not result from a breach by the architect of his duties under the contract; a claim by the contractor under sub-paragraph (a) will normally, though not perhaps invariably, arise from a failure by the architect to answer with due diligence a proper application by the contractor for instructions, drawings and the like, while a claim by the contractor under sub-clause (b) following a proper instruction requiring the opening up of works under clause 6(3) normally (though not perhaps invariably) will not involve any breach by the architect of any obligation under the contract. In either case the contractor can call on the architect to ascertain the direct loss or expense suffered and to add the loss or expense when ascertained to the contract sum. The contractor will then receive reimbursement promptly and without the expense and delay of a claim for damages. But the contractor is not bound to make an application under clause 24(1). He may prefer to wait until completion of the work and join the claim for damages for breach of the obligation to provide instructions, drawings and the like in good time with other claims for damages for breach of obligations under the contract. Alternatively he can, as I see it, make a claim under clause 24(1) in order to obtain prompt re-imbursement and later claim damages for breach of contract, bringing the amount awarded under clause 24(1) into account.
 
A claim under clause 11(6) by contrast will not normally arise in consequence of any breach of duty on the party of the architect. The architect has power under clause 11(1) to issue instructions requiring variation and under clause 11(2) "variation" is described in very wide terms apt to cover any desired departure from the work as originally conceived. The purpose of clause 11(4) is to provide remuneration for such additional or varied work calculated in accordance with the principles which govern pricing of the work originally contracted to be carried out and the purpose of clause 11(6) is to supplement that remuneration by reimbursing the contractor for consequential direct loss or expense. However, a claim for damages may arise if, for instance, following application by the





  
  
  
  
  
  


contractor the architect fails to ascertain or to instruct the quantity surveyor to ascertain the amount of the direct loss or expense suffered. There is nothing in the contract which excludes such a claim for damages. I accordingly agree with the arbitrator’s conclusion in paragraph 11.12 that:
 
"[Leach] are entitled to recover sums otherwise than in accordance with clause 24(1) and 30 of the contract in respect of such breaches of contract as they are able to prove in Part II of the arbitration".
 
Like the arbitrator, I do not propose to consider further Leach’s alternative claim that if they cannot claim damages for the specific breaches of contract alleged they are entitled to claim that the contract was discharged by fundamental breach. That contention at first sight faces considerable difficulties but it has not been argued.
 
Preliminary Issue No 12 is as follows
 
"If the claimants prove the breaches alleged in paragraphs 14-18 and 23-31 of the points of claim (and in the further and better particulars thereof) and the matters alleged at pages 23 and 24 of the further and better particulars of the points of claim, are they entitled to recover remuneration on a quantum meruit basis (a) in respect of some items only, and if so which; (b) for all work done?"
 
This issue relates primarily to the claim that the architect failed to supply Leach with priced bills of variation within the period specified in clause 30(5), that the bills of variation delivered with the points of defence were not prepared in accordance with that subclause and that in view of the delay that has occurred and the failure by Merton to appoint anybody answering the description of the architect it is not now practicable for proper bills of variation to be prepared.
 
The case for Leach, in essence, is that the machinery for quantifying additions to the contract sum has broken down and that the arbitrator can and should award in lieu of a sum calculated in accordance with the contract reasonable remuneration for the work actually carried out by it.
 
The arbitrator summarised the position at the date of the arbitration in a passage which I think I should read. He said in paragraph 12.12:
 
"The bill of variation dated 19 August 1982 has been substantially criticised in the report from Mr Cobb. He alleges that it is incomplete, inaccurate and confused in its presentation. He expresses his view that it is now impossible to prepare an accurate bill of





  
  
  
  
  
  


variations due to the passage of time since the work was done resulting in lack of knowledge of conditions under which items of work were carried out, lack of knowledge of the extent of work actually done, the covering up of preparatory and similar work and subsequent alterations to contract work. Mr Sims, an expert witness called by [Merton], agrees that the document is not a bill of variations as required by the contract and describes it as confused, difficult to follow, containing anomalies, inconsistencies, obscurities, duplications and errors but he considers that it should be treated only as a preliminary step towards the presentation of the final bill of variations. Mr Sims agrees with Mr Cobb that it is probably now impossible to prepare a bill of variations which complies strictly with the requirements of the contract but considers that it is capable of becoming, after consultation and negotiation with the contractor, an adequate presentation of a fair and reasonable adjustment of the contract sum. Although the contract makes no provision for consultation and negotiations between the quantity surveyor and the contractor, I accept that in practice such negotiations do take place and form a valuable part of the process of preparing the final bill of variation.
 
Therefore not only was the document of 19 August 1982 delivered beyond the time limit imposed by the contract but the two experts agree that the document is not a bill of variations in accordance with clause 30(5)(a). [Merton] have therefore not complied with part of the mechanism laid down by the contract for the ascertainment of the adjusted contract sum."
 
I have already mentioned the agreement after the award was given in respect of the sum payable under clause 11(4), though I would stress that Leach do not agree that that agreement represents a bill of variations and, as I have said, stress the absence of a bill of variations as a matter which impedes the proper ascertainment of the sum due in accordance with the machinery of the contract.
 
After referring to (amongst others) the decisions of the House of Lords in Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 and Lodder v Slowey [1904] AC 442, the arbitrator concluded:
 
"In the case [Leach] has achieved practical completion of the works and so there is no question of valuing partially completed work as was the case in Lodder v Slowey. Although I will be unable to determine the point until I hear evidence in Part II of this arbitration, I share Mr Sims’ anticipation that the ‘bill of variations’ may prove a useful starting point for my ultimate assessment of the adjusted contract sum. I also anticipate that there may be several items in the ‘bill of variations’ that are acceptable to [Leach] and which are capable of being readily valued in accordance with the contract machinery. I do not consider it right to interfere with such assessments and I therefore hold that the [Leach’s] entitlement to recover on
 





  
  
  
  
  
  


the basis of quantum meruit is limited to items of work other than those included in the bills of variation and which either (1) have been agreed between the parties or (2) are readily capable of being valued in accordance with the contract machinery."
 
After the hearing had concluded Merton made further submissions founded on the then recent decision of the Court of Appeal in British Columbia in Morrison-Knudsen & Co Inc v British Columbia Hydro and Power Authority (No 2) (1978) 85 DLR (3d) 186 and concluded that his decision "takes into account the principles of this Canadian case by restricting assessment on quantum meruit to those items which cannot now be valued under the contract machinery".
 
It became apparent in the course of the argument that the claim advanced by Leach before the arbitrator is an alternative to the claim to be entitled to damages in respect of the breaches alleged in the paragraphs mentioned in Issue No 11. The claim in essence is that if Leach cannot claim to be entitled to be paid a sum calculated otherwise than in accordance with the machinery provided by the contract and if that machinery has broken down by reason of default on the part of Merton they claim they must be entitled to a quantum meruit either for the whole of the work or to reflect additional expense which they would, apart from that default, have been entitled to recover by virtue of the machinery in the contract. This issue therefore seems to me in the light of my conclusions on other matters to be a hypothetical one and although I have been anxious to assist the parties by dealing as comprehensively as possible with the issues formulated by them I do not think it is necessary or desirable that I should venture further into this field.
 
Preliminary Issue Number 13 is as follows:
 
"If the claimants prove the breaches of contract alleged in paragraphs 14-18 and 23-31 of the points of claim (and in the further and better particulars thereof) and in paragraphs 78-80 of the points of reply, will the claimants be entitled to recover the sum set out in paragraph 22 of the points of claim, as direct loss and/or expense (subject to argument as to the figures and as to the principles upon which loss of profit or financing cost and/or interest should be awarded), even if those sums have not been calculated precisely in accordance with clauses 11(6) and 24(1)."
 
In paragraph 5 of the points of claim Leach claim payment of the sum arrived at by the calculation in paragraph 22 (£2,245.605) "or such sum as the arbitrator may find to be the direct loss and/or expense recoverable by [Leach] under clauses 24(1) and/or 11(6) of the contract".





  
  
  
  
  
  


I do not propose to set out this calculation in full. The effect of it is summarised by the arbitrator in the following passage:
 
"The calculation commences with the ‘direct site costs’, which I can only interpret as being the total expenditure incurred by [Leach] on all labour, plant and materials involved in the construction works. From the very limited information available to me I can interpret the word ‘direct’ as indicating that the costs relate to [Leach’s] own expenditure and that of his direct sub-contractors to the exclusion of expenditure through nominated sub-contractors and suppliers.
 
From this total site cost, [Leach] deduct the assessment for fluctuations which under clause 31 A of the conditions are to be adjusted on a nett basis. A percentage for profit and overheads is then added to the total site costs excluding fluctuations and finally the net fluctuations which under clause 31 A of the conditions are to be adjusted on the contractor of £3,721.970.
 
If one could imagine a building contract which proceeded to completion without any hitch, delay or variation whatsoever this calculation would provide [Leach] at line (5) with a direct comparison with his tender figure. However as that ideal situation is rarely, if ever, met and certainly was not met in the instant contract, the figures in line (1) (and so those in lines (4) and (7)) must include the costs to [Leach] of all the ‘hitches’ of whatever nature that occurred on the site."
 
I find it impossible to see how the calculation in paragraph 22 can be treated as even an approximation for a claim, whether or not rolled up (as in Crosby) under clause 11(4) and/or 24(1). As the arbitrator points out in the passage I have cited, the calculation in effect relieves Leach from any burden of additional costs resulting from delays in respect of which Leach is not entitled to any extension of the completion date.
 
The calculation might be appropriate to a claim for a quantum meruit or for a partial quantum meruit to reflect additional expense which, by reason of default on the part of Merton, cannot be calculated in accordance with the machinery provided by clause 11(4) or 24(1). But as I have said a claim for a partial quantum meruit is not one on which in my judgment Leach is entitled to pursue. It is in my judgment wholly premature to endeavour to calculate at this stage of the arbitration the quantum of the damages suffered by Leach if the breaches alleged are established. In these circumstances I am of the opinion that the answer to this question should be an unqualified "No".
 
Preliminary Issue Number 15. Since the arbitrator’s award was





  
  
  
  
  
  


given the parties have formulated a further question for determination by the court. It is as follows:
 
"Does the arbitrator have the power to waive or cure any lack of or deficiencies in (a) any notice required to be given by the contractor pursuant to the opening words of clause 23 and/or any written application required to be given by the contractor [if he is to recover loss or expense] pursuant to the opening words of clause 11(6) or 24(1)."
 
I can deal with this question briefly. It is clear in the light of the decision of the Court of Appeal in Crouch that an arbitrator appointed under clause 35 does not perform a purely arbitral function. The nature of his function is I think most clearly put in a short passage at [1984] QB 671; 26 BLR 33-4 where Sir John Donaldson says:
 
"In principle the exercise by a court of the powers conferred by the JCT contract upon the arbitrator appointed for the purposes of that contract seems to me to involve the exercise of completely novel jurisdiction. The function of the courts is to determine facts and to declare and enforce the contractual rights of the parties. It may be retorted that the same comment can be made about the functions of an arbitrator, and this I would accept. However, the truth of the matter is, I think, that the arbitrator appointed under a JCT contract has a double function. He has first the right and the duty to review the architect’s decisions (in which I include certificates, opinion, requirements and notices) and, if appropriate, substitute his own. Second, he has to declare the rights of the parties on the basis of the situation produced by his own revising activity. The latter is truly an arbitrator’s function. The former is not."
 
So to the extent that the arbitrator performs what can perhaps be described as a "revising function" he "creates new rights, obligations and liabilities in the parties" (see per Sir John Donaldson at [1984] QB 670; 26 BLR 33). However, in doing so he acts in the place of the architect. Insofar as the conditions require the contractor to take specified steps before the architect is obliged to issue a certificate, form an opinion or make a decision the arbitrator cannot waive those requirements.