It was Bob Marley who sang these lines, and I now choose them carefully because one of the common misconceptions I come across on building contracts is the vagary over the status of those who represent their governor, or should I say the employer? This is most stark with the role of the Employer's Agent under the JCT DB 05. Despite popular opinion, the Employer's Agent as provided in Article 3 is in no real sense performing the same function as an Architect/Contract Administrator/Project Manager under say the JCT SBC. Many Adjudicators make a horlix of it too. Yet the Employer employs an agent to administer the conditions. Confused?

Well confusion is understandable given that large chunks of the QS profession are at any one time taking on the roles of contract administrator, certifier, project manager or employer's agent on behalf of their clients. However, what duties, if any, do they owe to the contractor?

The starting point for defining the role of the employer's agent is always the appointment, read in union with the building contract. The true employer's agent has little or no discretion and must obey the employer's instructions. However, if the employer's agent becomes a "certifier", things change. A certifier has a much wider discretion and must act fairly in performing his functions. Yet is he really certifying, or is he simply rubber stamping? Where the employer's agent is also a certifier, he must exercise each role diligently and must be mindful of the potential conflict. The JCT DB Contract envisages that the Employer's Agent undertakes the employer's duties on behalf of the employer. The choice of term is deliberate.

The employer's agent has no duty, shock horror, to act fairly between the parties and has no duties to anyone save the employer. This was discussed in JF Finnegan Ltd v Ford Sellar Morris Developments Ltd. The judge held that there was a world of difference between a certificate issued by an architect, which has a binding effect unless and until it is overturned by arbitration or litigation, and the giving of a notice of failure to complete the works given by the employer's agent, which does not have a binding effect.

However, as I indicated at the outset, recent judgments have clouded the employer's agent/'certifier' boundaries and none more so than three years ago in Scheldebouw BV v St James Homes (Grosvenor Dock) Ltd, where the functions and duties of certifiers and others with decision-making roles were examined in detail. In this case Mr Justice Jackson concluded:

Let me now draw the threads together. In many forms of building contract a professional person retained by the employer ... has decision-making functions allocated to him. I will call that person "the decision-maker". The decisions which he makes are often required to be in the form of certificates, but this is not always so. For example, there are many contracts ... in which extensions of time do not take the form of certificates.

Three propositions emerge from the authorities concerning the position of the decision maker.

  1. The precise role and duties of the decision-maker will be determined by the terms of the contract under which he is required to act.
  2. Generally the decision-maker is not, and cannot be regarded as, independent of the employer.
  3. When performing his decision-making function, the decision-maker is required to act in a manner which has variously been described as independent, impartial, fair, and honest. These concepts are overlapping but not synonymous...

However, what I really want to get at is this: a contract administrator must act in a manner which has variously been described as independent, impartial and fair where he is required to make decisions on issues in which the employer's and contractor's interests may not coincide. So too the engineer under the ICE Conditions (7th Edition) who has an express duty to act impartially, and under the FIDIC 1999 Red and Yellow Books where the engineer must make a "fair determination". By contrast, there is no such duty under the JCT DB 2005 where the certifying function is carried out by the employer directly. The employer's agent should take great care to act within the terms of his authority so that conflicts of interest and disputes can be avoided.

So you will see that the distinction of the employer's agent is important, but at the end of the day, the Contractor can still transport that process before an adjudicator who can open up, review and revise any account, opinion, decision, requirement or notice issued, given or made...

Therefore, if the Contractor can show a perverse approach, an unfair one or simply does not like what he hears whether fish or fowl, an adjudicator will 9 times out of 10 unstitch the canvas to some degree!

So who made it? Where is my hat?

This article first appeared in Building Magazine. To read further articles by Simon Tolson, please visit

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