Final certificates

Where a final certificate has become conclusive of a matter it can only be challenged by a party in a certain number of limited circumstances. Generally, if is not possible to challenge a certificate merely on the grounds that it contains mistakes, but depending upon the exact circumstances, it may be possible to challenge the validity of the final certificate on the following bases:

1. Lack of jurisdiction - The architect may lack jurisdiction to issue the certificate where they have failed to follow the contractual procedure or where they have certified works which are correctly considered to fall under a different contract. It is also generally considered that an architect lacks jurisdiction to determine conclusively breaches of contract by the employer, although this is likely to depend upon the precise wording of the contract.
2. Improperly made - A certificate may not be properly made if it is in the wrong form, or because the wrong procedure has been followed, or because the wrong person has issued the certificate. This basis for objecting to the certificate overlaps somewhat with jurisdictional objections.
3. Disqualification of the certifier - A certificate may be challenged if the architect failed to act independently during the certification process, or if they are guilty of fraud, dishonesty, bias or collusion.

Note that a challenge on any of the above grounds would not be at all easy, and a successful challenge would only have a very limited chance of success. The preference by far is for either a pay less notice to be issued where applicable and/or relevant, or for formal proceedings to be commenced within the time period stipulated in the contract or subcontract.

Liability for defects arising after issue of the final certificate

Whether an employer can pursue a contractor for defects discovered after issue of the final certificate is an issue which is very closely tied to the question of whether a final certificate has conclusive effect.

The position is far from clear but it is considered that it will generally be less likely that the final certificate will be found to be conclusive of breach of contract or negligence claims as opposed to issues such as valuation of additions and omissions to the contract sum. There are 2 reasons for this:

1. in the absence of clear wording, courts are generally reluctant to interpret contractual clauses as having the effect of excluding claims in breach of contract or tort; and
2. it is less likely that the parties would agree to the architect being the final arbiter of defects, especially latent defects, than of pure valuation issues.

However, the possibility that the final certificate will prevent breach of contract or tort claims cannot be ignored and, as with all other aspects of law concerning the final certificate, any doubt should be resolved with the aid of legal advice.