Loose change Andy Mather on a case which highlights the dangers of waiving an employer's rights

摘要

It has generally been thought that an architect, although the agent of the employer, has no power to vary or waive the terms of a building contract between the employer and the contractor. However, a recent Scottish case, the latest City Inn v Shepherd Construction decision, suggests that architects can, in certain circumstances, alter the employer's rights against the contractor. This is of concern because if an architect waives an employer's rights without the employer's consent (even if done inadvertently), they may find themselves liable for any losses the employer suffers as a result of the waiver. The City Inn case involved the construction of a hotel in Bristol under a contract in the JCT Standard Form Private with Quantities 1980 edition, although heavily amended. Importantly, the parties had inserted a new bespoke clause 13.8 which provided that, if an architect's instruction was liable to delay the completion date, the contractor was not to execute the instruction without following certain defined procedures. These were aimed at the parties agreeing any extension of time or additional payment in connection with the architect's instruction before the work covered by the instruction was undertaken. If the contractor failed to comply with the procedures, they would not be entitled to extension of time. Unfortunately, the project suffered delays and a dispute arose between the parties as to the proper extension of time which should be granted to the contractor. The contractor claimed that a number of 'relevant events' had occurred by which it was entitled to an extension of 11 weeks.