The tale of the Ugly Duckling that could not become a swan…

In the case of Freeborn v Marcal the dispute concerned the construction of a “cinema box”. The key question the court had to determine was whether the architect, Mr Marcal, had redesigned the cinema box without telling his clients and arranged for the construction of a cinema box which they had not approved.

Background

There were various discussions between Mr Marcal and his client about how the cinema box might be achieved using the existing rooms of the house. At one stage there was a discussion about having a glass box suspended from the ceiling to house the cinema but eventually Mr Marcal recommended a glass box supported by four legs. A design was prepared including some 3D mock ups.

What was eventually built was described as having gone from a “sleek modern look” to a “wonky industrial look” with six rather than four legs and a wooden box with glass panels rather than a glass box. Mr Marcal’s position was that was the design the claimants had agreed in various meetings and that he had sent them drawings with the revised designs which were approved.

During the trial a bundle was available which included extracts from the architect’s daybooks, notebooks and sketch pads. The judge described these documents as “a tumble dryer of misinformation” finding the notebooks to be confused, confusing and chaotic.

The books were not in any chronological order or any order at all and it seemed to be pure chance which led to a particular book being used on a particular day or for a particular project or being used for personal rather than professional purposes. It was not clear from the notes who attended any particular meeting or who said what. 
The architect therefore was therefore found to have produced:

• No written contract
• No written brief for the project or any part of it
• No minutes of any meetings with the client or the contractors for them to agree/disagree
• No progress or planning reports
• No interim accounts or valuations for the works.

It was perhaps not surprising that things did not turn out according to plan. 

The judgment

The judge started by helpfully summarising the key principles of law setting out the duties and obligations of an architect. 

• The contract between the architect and his client is the primary basis for setting out the architect’s duties.
• The architect will ordinarily owe a duty to provide services with reasonable skill and care.
• The standard that the architect is required to meet is not one of perfection. The client must be able to show actual negligence and not just the existence of an error. 
• The architect is entitled to recommend to the client that they appoint a third party with specialist knowledge where needed. The architect will ordinarily have no legal responsibility for the work undertaken by that specialist. 
• The obligation placed on the architect to supervise/inspect the works depends on various factors such as the contract, the nature of the works and his confidence in the contractor appointed to undertake the works. 
• The architect will only be liable for loss/damage caused by his negligence and which his client has sought to mitigate.
• The appropriate measure of damages for defects arising from an architect’s negligence will usually be the cost of rectification.

Looking through the “tumble dryer of misinformation” the judge found that the architect redesigned the cinema box without telling his clients and arranged for construction which they had not approved and which was significantly and critically different from the sleek modern look which they were expecting.

The judge considered it would be bad practice for the initial brief not to be recorded in writing and for any design development or changes also not to be recorded in writing. Relying on sample boards, mood boards or pinterest pictures is not enough.

He found that the claimants had not agreed to the design of the cinema room and that the architect was negligent in not having a written brief and not consulting with the clients when the brief changed so dramatically. The clients were entitled to be outraged by what they were provided.

Interestingly in spite of his initial summary about rectification being the usual measure of damages, the judge decided that the claimants’ decision to demolish the cinema box was a reasonable one in these particular circumstances. He found that this particular ugly duckling could not be turned into a swan. What was provided here was so different from what was expected that demolition was the reasonable course.

The claimants were therefore entitled to recover substantial damages for the costs of demolishing the cinema and the wasted costs they had spent in the first place. 

Points to note

So what lessons can architects learn from this case? Best practice is to record your brief in writing and then to update it to reflect changes agreed with the client as the case progresses.

In addition and this does not just apply to architects, the case stresses the importance of keeping accurate contemporaneous records of work instructed and undertaken as well as details of important meetings, including dates, attendees and key points discussed and agreed. This is yet another example of a defendant faced with an uphill struggle from the start due to inefficient record keeping. Even if the architect had agreed the brief and subsequent changes, it seems as if his records would have been little help to him in persuading the judge of his position.