Mr Philip Freeborn, Mrs Christina Goldie v Mr Daniel Robert De Almeida Marcal (Trading as Dan Marcal Architects) [2019] EWHC 454 (TCC)

This case offers a salutary lesson for all architects (and other professionals): not only will a failure to record your client’s brief (and agreed changes to that brief) clearly and in writing be regarded as a “serious breach of duty” (and a failure to comply with ARB and RIBA Codes of Conduct), it may expose you to liability if the client’s original brief is subsequently not achieved.

The facts of the case are as follows:

The Claimants, Mr Freeborn and Mrs Goldie engaged Mr Marcal to act as architect and project manager on a project for various improvements to their home in London. Among other things, the project included work to a pool house, whereby:

• The pool would be hibernated and covered over with wooden flooring, so that the space could be used for entertaining guests.
• A cinema room would be constructed in a raised position below the pool house roof.

The claimants were unhappy with several aspects of the finished project. In particular, they were extremely unhappy with the cinema room.  The claimants’ position was that their brief was clear: they wanted a “sleek modern look” for the cinema – a glass box suspended in the ceiling space. What they got was a box featuring panels of glass with conspicuous “spider bolt” metal fixings supported by six rather industrial looking steel legs.

The Claimants brought a claim against Mr Marcal for breach of contract.

The findings

Martin Bowdery QC, sitting as a deputy High Court judge in the Technology and Construction Court (TCC), found that Mr Marcal had acted in breach of contract and awarded the claimants damages of just under £500,000.

The basis of the finding against Mr Marcal was essentially that he did not consult with the claimants about the “significantly and critically different” design ultimately produced that did not match their original brief or expectations. Mr Marcal sought to contend that the brief had evolved. His expert argued that, on a domestic project, clients are on a “journey of exploration“. That may be so. However, Mr Marcal was unable to offer evidence to prove that he had taken his clients with him on that journey and provided clear and appropriate advice and obtained their informed consent at key times. Instead, the evidence pointed to that journey being taken “by the defendant without inviting the claimants to accompany him or even with the claimants being told where he was heading“. Mr Marcal “effectively went on a frolic of his own producing a wonky industrial design rather than the sleek modern design the claimants were expecting“.  Had Mr Marcal advised his clients at an appropriate point that the “look” that they wanted was not achievable or needed to be compromised, they may well have decided not to spend their money on the cinema. The claimants were denied that option by Mr Marcal’s failure to appropriately engage with them at key stages. The Court held that the cinema as designed and built was “so different to what the claimants reasonably expected” that demolition of the cinema was warranted: “I do not consider that this particular ugly duckling can be turned into a swan“.

There is little doubt that Mr Marcal’s management practices and recording keeping was poor. The Court found that he had failed to prepare:

• a written contract;
• a written brief for all or any part of the project;
• minutes of meetings with the client or contractors; and
• progress reports.

Mr Marcal’s records were instead largely confined to notebooks containing a “tumble dryer of information” and his approach was described by the Court as “disorganised” and “chaotic“.

Summary

As a matter of good practice (and compliance) the client’s brief and the terms on which the architect is engaged should be fully and clearly documented in writing. Any risks, factors or issues which may affect the architect’s ability to deliver on the client’s brief should be highlighted. Subsequent challenges to the project or the brief should be captured in writing (in meeting minutes, or correspondence), together with the architect’s recommendations for addressing those challenges. The client’s informed consent to changes to the brief should be sought, obtained and documented in writing.

The importance of a written appointment and the keeping of good records cannot be over-emphasised. In the absence of documentary evidence (and provided that the lay client performs well on the witness stand), when a dispute arises the Court is likely to prefer the evidence of a lay client over than of the architect if there is any question about what was said and done, by whom and when. This is particularly the case for domestic clients. In most cases, the project in issue will be their only project and be carried out on their home. By contrast, an Architect may at any time have a number of projects in progress and may not be as physically and emotionally invested in every detail of each such project. In the absence of documentary evidence, the lay client’s recollection as to what did or did not happen on a project which was their “baby” may well be accepted as being more reliable. That certainly appears to have been the case in Freeborn v Marcal: the claimants were described as “impressive witnesses” who “avoided exaggeration and speculation” and gave “clear and concise” evidence. Without documentary evidence to challenge their testimony, Mr Marcal’s recollections (whilst accepted by the Court as being honestly held) were unlikely to trump those of his clients.