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Can I make the contract administrator carry out the inspections I agreed in my settlement agreement with the building contractor?

I am acting for an employer under a JCT Intermediate Building Contract with contractor's design, 2011 edition (ICD 2011) who has settled a fee dispute with the contractor.

As part of the deal (which was recorded in a separate settlement agreement) the employer agreed to hold a sum to release on the architect's inspection and certification that outstanding snagging was complete - this would signal the end of the defects liability period. The effect of this was to vary the defects liability period in the JCT contract, but this was without the knowledge of the architect. The architect is the contract administrator under the JCT contract. There is a fee dispute between my client (the employer) and the architect. As a result, the architect is suspending services and is also refusing to inspect the property and certify that the snagging work is completed. The architect has also noted that the defects liability clause in the JCT has been varied after the employer settled the dispute with the contractor, but the terms of settlement are confidential. Because of confidentiality we cannot reveal the precise terms of settlement to the architect.

In addition, the architect wants to know the detailed basis on which they are to meet revised obligations before they carry out inspection. The contractor has completed the snagging work and now requires the sum held by the employer to be released pursuant to the settlement agreement. However, the architect is refusing to perform the inspection and the employer and contractor are in a bit of 'limbo'.

My questions are:
  • Is the employer entitled to require the architect to complete the inspection?
  • Is the employer required to inform the architect of the basis of their settlement with the contractor, despite the fact that the terms of settlement are confidential?
  • Has the defects liability clause been varied because of the settlement agreement, and is this permitted under the JCT contract?
Anonymous (Private practice)

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