The Technology and Construction Court's decision in late February in Freeborn & Goldie v Dan Marcal Architects serves as a cautionary tale for architects to clearly entrench the terms and conditions of their appointment, to establish a defined brief and to generally keep meticulous, contemporaneous records. 

Freeborn & Goldie v Dan Marcal Architects

The case related to the Claimant’s £7 million property in North London which comprised a pool house which was connected to the main house by a linking room. The Claimants appointed the Defendant to act as architect and project manager in the conversion of their pool house into a function room and to construct a home cinema room in a floating glass box on legs with a “sleek modern” look. 

The Claimants were ‘shocked’ when the box-like structure was completed as the designs were neither expected nor agreed, and rather than having a sleek modern look it had a “wonky industrial” feel.  They issued a professional negligence claim against the architect, stating that it has redesigned the cinema room without approval and arranged for the construction of a box that they had not approved.  

Marcal Architects Cinema Room

The couple’s list of complaints included: that Marcal Architects had delivered a ‘wooden box’ with glazed panelling rather than ‘glass walls’; that it had ‘visible spider bolts’ and it was supported on six legs and not four.

The court held that the Defendant had been negligent in his failure to produce a written brief for the works or seek approval to the design for the cinema box which was significantly opposed to the sleek, modern aesthetic that they were expecting. The Defendant was ordered to pay £431,000 in damages for the wasted costs in designing and constructing the box in addition to £26,000 to cover the cost of demolition and £5,000 for the Claimant’s distress and inconvenience caused by the works.

Legal implications

This case has wide implications for the architectural profession and other professionals working in the construction industry and employers commissioning them.

Two interesting points to note from this case are that the court awarded damages on the basis that the new construction had to be demolished.  The court accepted that the ordinary measure of damages when an architect has acted negligently is the cost of rectification, but it said that it does 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 was decided on the facts and it may have been helped by the fact that there had been a failure to agree on the brief and have a clear understanding as to what would be provided. 

Which leads on to the second point that the Court held that the absence of a written brief and written variations was bad practice and a serious breach of duty.

This is not just in relation to the liability threshold for a professional negligence claim, it also falls foul of multiple provisions contained in Standard 4 of the Architect’s Registration Board (ARB) Code of Conduct and Principle 2 of the RIBA Code of Conduct respectively.

The ARB Code requires an architect before it undertakes any professional work to have entered into a written agreement with the client which covers the contracting parties, the scope of the work, the fee or method for calculating it, each party’s responsibilities and any constraints or limitations on them, provisions for suspension or termination of the agreement, details of insurance cover and a complaints-handling procedure.  It also requires any agreed variations to the written agreement to be recorded in writing.  This is of particular note for architects because the court disagreed with the Defendant’s expert’s view that residential projects could be dealt with more informally.

Do you need legal advice?

Myerson’s highly experienced construction team regularly assist architects to ensure that they are not exposed to liability in a professional negligence claim, or in breach of their professional obligations.

We offer bespoke, written letters of appointment which contain terms and conditions to ensure clarity and efficiency throughout the project for both the architect and their client.

If you need legal advice, speak to us today by calling +44(0)161 660 8720.