(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
 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