An Officer of the Contract? The Delicate Position of the Contract Administrator

Professor Anthony Lavers

May 2020

A paper presented to the Society of Construction Law at a meeting in London on 3rd March 2020

This paper examines the potential liability of a professional appointed to administer a construction or engineering contract. The paper first considers the liability implications of particular functions of a contract administrator, namely the supervision duty, and in particular the historical move from ‘supervision’ to ‘inspection’, and the issue of the final certificate. The author examines the wider question of how a contract administrator is exposed to the risk of being sued, following the lines of authority leading up to the decisions in Sutcliffe v Thackrah and Pacific Associates v Baxter and their effect on subsequent cases. The paper goes on explore other potential forms of liability facing a contract administrator: liability to a lender for negligent certification, liability for negligent advice to a third party, liability for injury to the work-force and liability to the contractor in the tort of deceit.

Introduction – 1. Scope of services: The supervision v inspection issue – a) A century of supervision – b) A change of direction – c) The modern era – d) The continued significance of the supervision/inspection issue – 2. The final certificate – 3. The consequence of status: the wider exposure of the contract administrator – a) How it was: the early cases – The first line of authority – The second line of authority – b) 75 years of quasi-arbitral status – c) The end of immunity – d) The modern era: the development of the law since Sutcliffe v Thackrah – e) Other possible forms of liability – Conclusions 

The author: Anthony Lavers is Counsel in the London office of White & Case LLP and Visiting Professor of Law at King’s College, London. He is a former Chair of the Society of Construction Law.

Text: 20 pages