A recent judgment handed down by the Technology and Construction Court in the case of Freeborn & Another –v- Marcal  EWHC 454 TCC is of wide-spread significance to those who commission construction professionals.
The Claimants, Mr Philip Freeborn & Ms Christina Goldie, commissioned the Defendant architect, Mr Dan Marcal, to design and project manage refurbishment works in the pool hall at their residential home in Totteridge, North London. The works included the conversion of the swimming pool area into a function room and the construction of a glass box cinema room located at a high level above the existing swimming pool, as well as the installation of high specification audio-visual equipment in the cinema room.
As the works progressed, it became apparent that what Mr Marcal had achieved was substantially different from what was promised to, and agreed by, the Claimants. There were numerous defects which Mr Marcal attempted to and failed to rectify and Mr Marcal ultimately abandoned the project.
Jerome O’Sullivan, Healys LLP Construction Litigation Partner, was instructed by the Claimants and issued proceedings in July 2017. Following an unsuccessful mediation attempt, the matter was tried over a two week period at the end of November 2018, and judgment was handed down on 27 February 2019.
Mr Martin Bowdery QC, sitting as a Deputy High Court Judge in the Technology and Construction Court, found in favour of the Claimants.
Having summarised the key principles involved in professional negligence cases against architects, the court found that negligence had been established. It was accepted that along with a number of defects, there had also been a substantial change in design, resulting in a “wonky industrial look” as opposed to the “sleek modern look” that the Claimants had been promised.
The Judge found the Defendant to be an unimpressive witness. Mr Marcal argued throughout that he had merely been instructed on an ad hoc basis and had no overall responsibility for management of the project. Relying heavily upon chosen extracts from private notebooks, he asserted that the Claimants had substantially altered the brief and had been kept apprised of any design changes in a number of meetings.
The Judge found both Claimants to be impressive witnesses. Their evidence was clear, concise and they avoided exaggeration and speculation. In contrast, the Judge found that Mr Marcal’s recollection of key events was confused, unconvincing and he gave the impression of being somewhat disorganised in his approach to the project. He was unable to produce any written retainer, written brief for any part of the project, or minutes of any meetings with either the Claimants or the contractors, nor was there any evidence of progress or planning reports, interim accounts or valuation to the works.
The court agreed with the Claimant’s expert architects’ evidence that a competent architect would agree a brief in writing with his client and in the absence of same, it would be unclear to the clients what the final design should achieve in terms of accommodation, costs, level of finish and operational requirements.
The Court held that Mr Marcal’s failure in this regard constituted bad practice and was causative of the losses claimed in this case.
The Court held that Marcal’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. The Court accepted the clear and consistent evidence of the Claimants that Mr Marcal did not discuss or explain or seek their approval to these changes. The Court then went on to find a number of defects with the particular design as constructed.
The Court confirmed that the ordinary measure of damage when an architect has acted negligently is the cost of rectification. However, the Judge stated that “I do not consider that this particularly ugly duckling can be turned into a swan. What was provided is so different from what the Claimants reasonably expected that I consider demolishing this cinema is the reasonable course going forward.”
The Claimants were therefore awarded the entire amount that they had wasted in constructing the cinema, together with the cost of demolishing same and general damages for distress and inconvenience.
Jerome O’Sullivan, partner, comments:
“This case has wide implications for the architectural profession and other professionals working in the construction industry and employers commissioning them.
The judgment demonstrates that an architect must ensure that they enter into a written agreement with their clients that confirms; the scope of the work, what will be the architect’s, client’s and other contractor’s responsibilities and any subsequent variation in this agreement.
The initial planning brief must be recorded in writing by reference to drawings, sketches, or three dimensional models and a detailed written description of the design. The brief should show what the final design will achieve in terms of accommodation, costs, level of finish and operational requirements.
Any variations to the planning brief should be recorded on the same basis and forwarded to the client. An architect should ensure that these documents are agreed and counter-signed by the client before construction is commenced.
Minutes of meetings must be taken and circulated to all attendees and monthly progress reports issued to the clients and all interested parties. Any notes taken by the architect should be promptly typed up and distributed to all attendees.”
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You can download the extended note on this case below:Freeborn-Press-Release.pdf (140 downloads)