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09 September 2019

That is not what I wanted!

Mr Marcal was commissioned to act as architect and project manager for works to a luxury home, including the construction of a "glass box on legs" cinema room and staircase in a pool house.  A case therefore forged out of austerity Britain. However, the owners complained that the final design had developed from “sleek modern to wonky industrial” without their approval.  Their claim included the costs incurred in constructing this cinema box.

The case, Freeborn v Marcal, revolved around whether or not Mr Marcal had redesigned the cinema box without telling the owners and arranged for the construction of a cinema box which they had not approved. The court gave guidance on the standard of care required of architects and found the architect, in this case, negligent for changing a design without the clients’ consent.

The duties and obligations of architects

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 that the client appoint a third party with the requisite knowledge to carry out work which requires that specialist knowledge.  Ordinarily the architect will carry no legal responsibility for the work to be done by the specialist which 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 from defects consequent upon the negligence of an architect is the cost of rectification.

The importance of a written brief

The court stressed the importance of a written brief which is shared with the client.  From the judgment, it would appear that keeping detailed records was not high on the architect’s agenda.  The architect’s expert had suggested that 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 that it would be bad practice for the initial brief not to be recorded in writing, and for any design development or changes not to be recorded in writing.

The architect attempted to argue that he had put together mood boards and discussed images with the clients and as such 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 determined that the client did not have sufficient clarity as to what was to be built. Particularly relevant to the case were the architect’s notes and sketch pads, 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.

Court’s decision and damages

The court therefore found that Mr Marcal redesigned the cinema box without telling the owners that the design was significantly and critically different from the sleek modern look they were expecting. The wonky industrial look was not discussed with the owners, was not what they expected to be provided and had not been approved by them.

The owners 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 the cinema room.

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 to what the owners reasonably expected that demolishing the cinema was the reasonable course going forward.

In addition, the owners were awarded £5,000 for distress and inconvenience.  Whilst the owners 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.  

Keeping a record of changes

This judgment emphasises the importance for architects (or any other designers) to have 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.  A professional can protect himself by ensuring compliance with such codes and ensuring all important decisions are made with the agreement of the client.  Failure to do so may make a professional vulnerable to a claim for negligence.  Architects are not the only members of the construction industry that occasionally fail to record what has been agreed.


This article was written by Steven Carey. For more information please get in touch via steven.carey@crsblaw.com or +44 (0)20 7427 1062.

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