The case of Freeborn & Goldie -v- Mr Daniel Marcal (t/a Dan Marcal Architects)  EWHC 454 (TCC) warrants a chilling reminder to architects that a failure to clearly record a client’s brief, or amendments to it, may be regarded as a serious breach of duty. Once again the Technology and Construction Court (“TCC”) have found the architects in this instance liable for substantial damages amounting to nearly £500,000 due to a failure of the Defendant to establish a clear written brief with their client.
Brief factual Summary
Marcal Architects (the “Defendant”) was instructed by the Claimant to design and develop a pool house in their £7 million London property. There were two stipulations which the Claimants kept good records of. Firstly, the wanted a hibernated swimming pool with collapsible wooden flooring allowing the space to be versatile and used to entertain guests. Secondly, they wanted a home cinema with a ‘sleek modern’ appearance to be built in a raised position below the pool house roof.
The Defendant did not comply with the aforementioned stipulations and as such the Claimants were not satisfied that their ideas of a sleek and modern looking pool house, had been complied with. The home cinema featured panels of glass with many ‘spider bolt’ metal fixings and industrial steel legs.
The Claimants brought a claim against the Defendant for a breach of contract.
What was found?
As the cinema design had been ‘so different to what the claimants reasonably expected’ the entire raised cinema would need to be demolished. This was the Claimants ‘baby’ and the judge stated that ‘I do not consider that this particular ugly duckling can be turned into a swan’, which is why the demolition was the only recourse in this instance.
Mr Justice Bowdrey added:
‘The claimants not knowing and not agreeing to the design of the cinema room as implemented, and the change from sleek modern design to industrial wonky design, was all as a result of the defendant’s negligence in having no written brief and no consultation with the claimants as that brief changed so dramatically. None of those changes were shared with the Claimants in writing or otherwise. They were entitled to be outraged by what they saw had been produced at great cost, which was not what they were expecting’.Freeborn & Goldie –v- Mr Daniel Marcal t/a Marcal Architects 
Failures of the Architect
The Court found that the Defendant’s management practices were very poor as he had failed to prepare:
- A written brief (for any part of the project);
- Minutes of meetings with the client or external contractors;
- Any progress reports for the Clients; and
- A written contract.
The ‘chaotic’ and ‘disorganised’ approach by the Defendant, did not bode well for him during proceedings as comparatively his former clients were described as ‘impressive witnesses’ who gave ‘clear and concise’ evidence. Martin Bowdery QC, sitting as deputy High Court judge found that Mr Marcal had acted in breach of the contract and awarded the Claimants damages of just under £500,000.
Paul Hyett, former president of the Royal Institute of British Architects (“RIBA”) commented that:
This case demonstrates the enormous importance of communication between an architect and a client. Among the many issues that necessitate clear understanding, cost and design are paramount. It is a basic duty of an architect to show clients what they are getting. Whether by the time honoured process of hand-drawn sketches, or by physical models, computer modelling or the written word, the prudent architect must ensure that the client ‘signs off’ the proposals which must be shown and/or described in sufficient detail, and with sufficient clarity, to confirm beyond any reasonable doubt what is to be built.Paul Hyett, former RIBA president
Advice to Architects
This case highlights the vital importance of: clearly establishing a client’s brief at an early stage, keeping diligent notes on the matter as it proceeds and maintaining client contact throughout the process. Additionally, it should be noted that briefs should be confirmed with the client having them sign acceptance of it, preventing debate at a later stage.
It is also clearly imperative to comply with the latest edition of the Architects Code: Standard of Conduct and Practice issued by the ARB. For avoidance of doubt, where elements of a project start to seep into other professional areas such as law, it would be prudent to recommend the client seek other professional advice. This will aid in the defence of a professional negligence claim, if sought by a client.
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