Architects Keeping Good Records

by Michael Ogus

A recent case in the Technology and Construction Court (TCC): Freeborn v Marcal [2019] EWHC 454 (TCC), highlights the importance to all architects of good record keeping, providing a written brief and ensuring that any changes to the brief are clearly explained to the client.

In this case the court held an architect to be negligent, and in breach of contract, for amending the design of a floating cinema room without the agreement or knowledge of his domestic clients and awarded damages of nearly £500,000. Interestingly, this award was to cover the costs of demolition as the court considered that the final design was so different to the original proposal that demolition and reconstruction, rather than rectification, was a reasonable course of action.

Background

Phillip Freeborn and Christina Goldie, (“the Clients”), appointed Dan Marcal Architects, (“Marcal/Mr Marcal”), to design refurbishment works to their home in Totteridge, North London. The works included converting the pool house into a function room and constructing a “glass box on legs” as a cinema room. The Clients were unhappy with the result and brought a claim for professional negligence. The key dispute, as identified in closing submissions, was “whether or not Mr Marcal redesigned the cinema box without telling the Claimants and arranged for the construction of a cinema box which they had not approved.

Appointment

Marcal maintained that the scope and nature of its role changed over time as its instructions changed. It argued that it entered into an “ad hoc contract” with the Clients to provide various architectural services at the hourly rate of £35 per hour, eventually invoicing the client for 1,000 hours or £35,000.

The Judge rejected this argument. He considered that a contract made partly orally and partly in writing based on email exchanges and meetings was effective.

Record keeping

Mr Marcal described his daybooks, notebooks and sketch pads as “tumble dryer of information”. The judge however described them as:

“a tumble dryer of misinformation. The note books are confused, confusing and chaotic.”

(…)

“They are not in any chronological order or indeed in any order. It was pure chance which led to any daybook, notebook or sketch pad being used on any particular day or for any particular project or, indeed, being used for personal rather than professional purposes. The Defendant had no clear recollection whether any entry was a proposed agenda, minutes of a meeting or subsequent retrospective musings. It was never clear from the notebooks who attended any particular meeting or who said what.”

The judge observed that Marcal had produced no written contract, no written brief, no minutes of any meetings with the Clients or the Contractors, no planning reports and no interim accounts or valuations for the works. When asked to explain his recollection of events Mr Marcal had to rely on the “tumble dryer of information” in the absence of supporting contemporaneous documentary evidence.

Design development

In October 2014 the parties began discussing the idea of a glass box to house the cinema. This was to be suspended from the ceiling and supported on four legs. Marcal developed the design and and sent 3D renderings of the proposal to the Client. What was eventually constructed was described by counsel for the claimants as a “wonky industrial design” not the “sleek modern look” illustrated in the 3D renderings.

Marcal contended that the transformation of the design was agreed over a series of meetings held between November 2014 and May 2015. The Judge considered each meeting in turn and concluded –

“None of the Defendant’s accounts as to how the design developed from sleek modern to wonky industrial to use the words of Counsel for the Claimants, which I consider is a fair description as to what was anticipated by the Claimants and as to what was provided, is convincing. The Defendant’s general lack of credibility when it comes to making the best of what he scribbled in his daybooks makes his history of the alleged development of the design very difficult to accept.”

(…)

“ … Mr Marcal redesigned the cinema box without telling the Claimants and arranged for the construction of a cinema box which they had not approved and which was significantly and critically different from the sleek modern look they were expecting. The wonky industrial look was not discussed with the Claimants, was not what they expected to be provided and had not been approved by them.”


The Architect’s Registration Board (ARB) Code of Conduct 2010

Registered architects should be aware of their obligations under the Architect’s Registration Board Code of Conduct 2010, (“the ARB Code”), in respect of appointments and managing the brief. The ARB Code, which was referenced during proceedings, sets out the duties of an architect before undertaking any professional work as follows:

“4.4 You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:

  • the contracting parties; 
  • the scope of the work: 
  • the fee or method of calculating it; 
  • who will be responsible for what; 

(…)

4.5 Any agreed variations to the written agreement should be recorded in writing.”

Written brief

The Judge considered that it would be bad practice not to have recorded the initial brief or any changes in design development in writing and considered on the evidence that there was neither a written brief nor a written agreement.

 “ … to avoid any misunderstanding at the very least, a written brief is essential and changes to that brief must be recorded in writing whether by drawings, sketches and/or minutes of meetings.”

“This is not only necessary but the absence of these documents was causative of the losses claimed on this claim. The Defendant effectively went on a frolic of his own producing a wonky industrial design rather than the sleek modern design the Claimants were expecting.”

The Judge emphasized the importance of this in relation to small projects which have a novel design.

“ … any reasonably competent architect who did not in exceptional circumstances produce a written brief and did not explain in those exceptional circumstances in writing why such a written brief had not been produced would be in breach of any duty of care owed to the client.”

In summary the Judge stated –

“The central plank of the Defendant’s case on approval was the so-called daybooks. However, these daybooks – the tumble dryer of information – could not be relied upon because they could not be reliably used as a source document. Not even the Defendant could understand what they recorded or when these records were produced. The Defendant’s failure to produce a written brief was a serious breach of duty which went to the root of the difficulties which he and the Claimants encountered. What was also an important failure was his failure to record the design changes from the sleek modern design for the cinema box illustrated in the 3-D picture he commissioned to the wonky industrial design eventually produced to the Claimants for their approval … “

In essence, the failure to provide a written brief will amount to a “serious breach of duty”.

Demolition

In cases of this type, the award of damages typically relates to the cost of rectifying the defective works. In this case, however, court accepted that rectification was not appropriate and awarded damages based on the cost of demolition.

“The Claimants have decided to demolish the cinema room. I consider such a decision to be a reasonable decision. Whilst I accept that the ordinary measure of damage when an architect has acted negligently is the cost of rectification, I do not consider that this particular ugly duckling can be turned into a swan. What was provided is so different to from what the Claimants reasonably expected that I consider demolishing this cinema is the reasonable course going forward.”

This can be contrasted with the decision in Ruxley & Forsyth [1995] UKHL8 where demolition and reconstruction were held not to be reasonable steps, notwithstanding that the project (in the case a swimming pool) did not comply with the brief.

Aesthetics

Marcal’s breach of duty was not attributable to a consideration of the aesthetics of the cinema box. The Judge was clear that opinions on the appearance of the cinema box are subjective. The issue at hand, he said, was the failure of Marcal to agree the brief with the Client and keep them informed of any possible changes during design development.

“The appearance of the cinema and who likes what are all issues which are somewhat subjective. There may be people who prefer the industrial wonky design to the sleek modern design. However, that is why it was essential not only to agree the brief but also to ensure that the Claimants had a clear understanding as to what would be provided.”

Summary

This case highlights the importance to all architects of: keeping good records that can be relied upon; of defining and recording the brief; and, most importantly, where changes are made to the brief ensuring that the client is made fully aware of these changes at all stages. In addition, registered architects should be aware of their obligations under the ARB Code regarding appointments and variations to the brief.

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