Articles from the Silver Shemmings Ash Team on contractual matters, recent case law changes and items of interest in the construction and property world
May 3, 2019 | Silver Shemmings
This article considered two cases which clarified the position in respect of the certifier’s role and obligations.
“Generally the decision-maker is not, and cannot be regarded as, independent of the employer.
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 were overlapping but not synonymous. They connote that the decision-maker must use his professional skills and his best endeavours to reach the right decision, as opposed to the decision which favours the interests of the Employer.
In my judgment, these propositions are all applicable to the construction manager in the present case. The fact that the construction manager acts in conjunction with other professionals when performing his decision-making function does not water down his legal duty. When performing that function, it is the construction manager’s duty to act in a manner which is independent, impartial far and honest. In other words, he must use his best endeavours to reach the right decision, as opposed to a decision which favours the interests of the employer.”
The author then recommended several key protections for tenants under Agreements for Lease:
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