Mark (Prederick) Ltd v Schield
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE ROSKILL,LORD JUSTICE KARMINSKI |
| Judgment Date | 20 October 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1020-6 |
| Date | 20 October 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J1020-6
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Ackner - in Chambers)
Lord Justice Davies
Lord Justice Karminski and
Lord Justice Roskill
Mr. PATRICK GARLAND (instructed by Messrs. Cowan, Lipson & Rumney) appeared on behalf of the Appellant (Defendant).
Mr. HENRY BROOKE (instructed by Messrs. Wright, Son & Pepper)appeared on behalf of the Respondents (Plaintiffs).
(without calling upon Counsel for the Respondents)
I will ask Lord Justice Roskill to give the first judgment.
This is an appeal by the defendant in the action against an order made by Mr. Justice Ackner in chambers on the 1st September of the present year. The learned judge upheld an order made by Master Warren on the 26th July whereby the plaintiffs in the action, a firm of builders named Frederick Mark Ltd., were given leave to sign judgment against the defendant for two sums totaling £1,534.48. If one looks at the Statement of Claim endorsed on the back of the writ one sees that those two sums are made up first of £100 and secondly of £1,434.48 respectively alleged to be due under two architects' interim certificates, the first dated 10th April, 1969, and the second dated 23rd April, 1971.
The plaintiffs, the respondents to this appeal, had entered into a building contract on the R. I. B. A. form "Private Edition (with Quantities)" with Mr. Schild, the appellant, dated 9th August, 1966, for the construction of what must have been a substantial private house in Hampstead, the ultimate contract price of which has been said to be of the order of £70,000. The present claim arises because, finality not yet apparently having been achieved, the architect, on the two dates which I have mentioned, issued these two interim certificates and the plaintiffs say that they are entitled to the sums certified by those two certificates without more ado. The defendant-appellant challenges that. He challenged it before the master and before the learned judge and, through Mr. Garland, has challenged it in this Court, on the ground that he is entitled to set off against the sums claimed under those certificates other sums due in respect ofalleged defects. He also seeks to say by way of defence that the sums covered "by those certificates have not been properly computed. The argument for the appellant, if I may say so, has been most persuasively put forward by Mr. Garland, but for my part I think that the learned judge was plainly right.
It is not necessary to go through these conditions in detail. The structure of the contract is reasonably plain. There are provisions in the contract whereby the builder may receive moneys there under from time to time and pending final determination at the end of the sum ultimately and finally due. There are also provisions in the contract for a final certificate at the end; there are also complex provisions for the review and if necessary the revision of that final certificate. It is plain that the ultimate determination of the sum finally due between the builder and the building owner may be a long drawn out matter. Although the sum here involved in the construction, about £70,000, is, at least in comparison with some building contracts, comparatively small, it is easy to visualise many building contracts - for example for industrial buildings, where the sums involved would run into seven or eight figures or even more and where delay in payment would put the builder in an impossible position. It seems, therefore, reasonably plain that the pattern of this contract is to ensure that the building owner does pay and that the builder does receive from time to time the payments due under the interim certificates. The architect is, of course, the agent of the building owner and he is there both to safeguard his principal is interest and equally to act fairly to the builder. The contract charges him and him alone with determining what are the amounts which he thinks should be paid in all the circumstances under any interim certificate or certificates which from time to time he thinks itright to issue during the currency of the work.
What is said here by Mr. Garland is: "Well, be that so: none the less there is nothing in this contract and nothing in principle which ought to be allowed to operate to prevent the building owner setting off or counterclaiming in respect of any sums which he seeks to recover on his side from the builder against the sums due under those certificates". He also says that there is nothing to stop the building owner challenging the computation of those interim certificates before the end of the work. One has, therefore, to look at those contentions first as a matter of principle and secondly, in the light of one case in particular, as a matter of authority.
I have stated what I conceive the structure of this contract to be, and the purpose of these interim certificates. My Lord during the argument gave as an example of the difficulties which could arise were the appellant's argument correct, a case where an interim certificate was issued at a very early stage of the...
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