Steven Carey reviews a recent case about an architect found negligent for changing a design without the clients’ consent

Steven carey bw 2017

The recent case of Freeborn vs Marcal provides guidance on the standard of care required of architects. Mr Marcal was commissioned to act as architect and project manager for works to the claimants’ luxury home, including the construction of a “glass box on legs” cinema room and staircase in their pool house – a case therefore forged out of austerity Britain.

The claimants complained the final design had evolved from “sleek modern to wonky industrial” without their approval. Their claim included the costs incurred in constructing this cinema box.

This judgment emphasises the importance for architects (or other designers) in having a written brief from their clients in place and to record any changes to that brief in writing

The court identified seven principles of law relating to the duties and obligations of architects:

  • The first port of call is to look at the contract under which the architect is performing.
  • An architect owed a duty to provide its services with reasonable care and skill.
  • The standard of reasonable care and skill is not a standard of perfection. The architect is not a guarantor. It is not sufficient to prove an error; a claimant must establish actual negligence.
  • An architect can recommend a client appoint a third party with the requisite knowledge to carry out work needing specialist knowledge. Ordinarily the architect will carry no legal responsibility for work done by the specialist that is beyond the capability of an architect of ordinary competence.
  • An architect’s obligation to supervise or inspect works will depend on various factors including the contract terms, the nature of the works and its confidence in the contractor.
  • Claimants are only entitled to recover loss and damage caused by the architect’s negligence, which they have sought to mitigate.
  • The damage ordinarily recoverable where a building suffers defects consequent upon the architect’s negligence is the cost of rectification.

This case revolved around whether or not Mr Marcal had redesigned the cinema box without telling the claimants and arranged for the construction of a box that they had not approved.

The court stressed the importance of a written brief shared with the client. From the judgment, it would appear keeping detailed records was not high on the architect’s agenda. The architect’s expert had suggested it was common in domestic projects not to have a formal brief because “as often as not, clients don’t know exactly what they want when they start off, except that they have a notion as to what they want, but don’t know how to do it. So they go into a journey of exploration with the architect. That’s quite normal and an essential part of the architect’s duty.”

The court rejected this argument. The absence of a brief was a serious breach of duty in itself. The court said it would be bad practice not to record in writing the initial brief and the same applied to any design development or changes.

The architect attempted to argue he had put together mood boards and discussed images with the clients and thus had developed the design in consultation with them. However, in the absence of hand-drawn sketches, 3D modelling or a sufficient written description, the court ruled the client did not have sufficient clarity on what was to be built. Particularly relevant to the case were the architect’s notes and sketchpads, which the architect himself conceded contained “a tumble dryer of information”. Records of meetings with the client were scant, consisting of incorrect recollections attributed to the wrong dates. The court held that the architect’s general lack of credibility when it came to making the best of what he had “scribbled in his daybooks” made his history of the alleged development of the design very difficult to accept.

The court therefore found Mr Marcal redesigned the cinema box without telling the claimants, to a design 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 and had not been approved by them. The claimants were awarded damages just short of £431,000 for the wasted costs spent on designing and building a cinema room that did not comply with their instructions. They were also awarded damages of around £26,000 for demolishing it.

Ordinarily the measure of damage when an architect has acted negligently is the cost of rectification. However, the court did not consider that “this particular ugly duckling can be turned into a swan”. What was provided was so different from what the claimants reasonably expected that demolition was the reasonable course.

In addition, the claimants were awarded £5,000 for distress and inconvenience. While they had not suffered any physical inconvenience, the court held that retainer was to provide peace of mind and pleasure. The works prevented them from having the opportunity to entertain their family and friends in the new space. 

This judgment emphasises the importance for architects (or other designers) in having a written brief from their clients in place and to record any changes to that brief in writing. Professional bodies usually have codes of conduct and guidance. Professionals can protect themselves by ensuring compliance with these and ensuring all important decisions are made with the agreement of the client. Failure to do so can make them vulnerable to a claim for negligence. Architects are not the only members of the construction industry who occasionally fail to record what has been agreed.

Steven Carey is head of the construction, engineering and projects team at Charles Russell Speechlys