Get it in writing! Lessons to be learned from Freeborn & Goldie v Marcal Architects

The Technology and Construction Court decision in Freeborn & Goldie v Marcal Architects (2019) is a strong reminder of the importance for an architect to agree a clearly defined brief in writing with their client and to keep accurate contemporaneous records of instructions and alterations in the agreed design brief throughout the project.

The brief

The claimants instructed the defendant architect to design a “floating cinema” as the “architectural centrepiece” of their leisure room.  The brief was a suspended cube within the former pool room of a high end residential property, within which the claimants would house a projection cinema. The “Cube” was part of a wider project to convert the property’s former swimming pool room into a multi-purpose function room. The cinema room was to be suspended on four legs with a function room below it. It was agreed between the parties that the brief was to produce a “sleek, modern design”.

The project

The claimants instructed the defendant following an email proposal in which the defendant offered to:

“survey the existing building and draw up on CAD….l develop scheme options and a brief… This will be represented as a series of drawings which I can present to you…. We can obtain 2 to 3 prices from different contractors, and see which will be most suitable. Contractors can work under a JCT Minor Works contract, which protects all parties and will allow us to formalise a programme, scope of work and budget”. 

The defendant also recommended potential contractors to invite to tender and indicated his involvement could be reviewed and reduced as the works progressed. The defendant followed up his “pitch” email with a written request for appointment attaching the RIBA 2010 Standard Conditions. The claimants claimed not to have received the RIBA conditions but agreed by email to proceed with the appointment of the defendant as architect and project manager.

The claimants were unhappy with the finished property, in particular the cinema room. The original design brief was agreed between the parties to be a “sleek, modern, glass cube elevated on four legs”.  The claimants instead complained that the cube had a “wonky industrial look” due to a misalignment of glass panels around the cube walls and had “grown” an additional two legs (taking the number of supporting legs to six in total).  So far had the finished design strayed from the originally agreed brief that the claimants argued it could not be rectified and they instead demolished the structure and started again, claiming the full costs of doing so from the defendant.

The dispute

The defendant argued that the claimants’ criticisms were unfounded and that the brief had been altered by agreement of the claimants.  The defendant contended that the scope of his appointment had been altered to a more ad hoc advisory role on an hourly rate, with Mrs Goldie taking over the project management. He also argued that as the design brief became more challenging, the design “evolved” through site meetings and conversations with the claimants, in which they approved various changes to the original design.  The claimants denied this and maintained that the defendant was their project manager and architect on the original terms of appointment. They also denied ever being advised of or approving any substantive design changes.

The judgment

The court sided with the claimants and found that the final design and completed structure differed substantially from the design brief agreed by them. The court was particularly critical in its finding that no final technical design was ever produced and although it was clear that the design had “evolved” due to difficulties in producing the originally agreed glass box on four legs, there was no record that the claimants had approved such a change. 

Critical to the outcome of the claim, the court found the defendant’s explanation of the design change to be “chaotic” and difficult to support from the written notes on his file.  The defendant’s file, consisting of several handwritten notebooks, was described by the court as confused, confusing and chaoticand the defendant’s evidence as “muddled and confused. Of particular importance to the defence, meeting minutes were not clear or organised in the files and the defendant was unable to easily produce any correspondence or approved written notes to support his assertion that the revised designs had been provided to and signed off by the claimants. 

The court preferred the evidence of the claimants that the defendant had never set out in a clear, concise manner how the design was changing and what they could expect as a finished product.  No doubt the lack of clear contemporaneous notes was a factor in assessing the credibility of the defendant’s evidence.

The court ultimately found that the defendant had acted “on a frolic of his own” in amending the design as it became clear that the original design was too difficult to build in the space available. The court found the defendant in breach of its professional duty for:

  • Failing to produce a written brief or agreeing a final design
  • Failing to advice the claimants that their proposed design was unworkable and required substantial amendment
  • Failing to obtain the informed consent of the claimants to the design change before the work began

The court awarded the claimants damages of £500,000 to reflect the costs of the project and of demolishing the structure which was accepted to be substandard and failing to meet the claimants’ design brief. 

Unusually, the court rejected an argument from the defendant that an appropriate remedial scheme could mitigate the claimants’ loss at approximately 1/3 of the sum claimed. The court considered the deviation from the design to be so substantial that it agreed it was reasonable to claim for the full costs of demolition and removal given the finished structure was “so different to what the Claimants reasonably expected”.

Lessons learned

Residential engagements (even ones of this value and complexity) are often agreed without a formal written brief and in some cases, without a final set of technical drawings ever being produced.  The defendant emphasised this in his defence and argued that a project such as this was usually a “voyage of discovery” with the client.  Evolving briefs are not uncommon.  The court however found that the defendant had incorporated the “look” of the scheme into his instructions and that it was a serious breach of duty not to have produced a final agreed design brief, or secured informed consent of the claimants to any design changes as a result. 

The key takeaway from the judgment is the significant criticism of the defendant’s failure to keep accurate and detailed notes and in particular, the inability to produce written evidence that the design changes had been clearly explained to the claimants and approved. This no doubt significantly influenced the court’s impression of the defendant’s evidence and the likelihood of the claimants having appreciated the change in design.

The judgment is a restatement for architects and insurers of the basic principle that a clear written design brief, approved design and properly minuted site meetings and discussions, followed up by email where necessary (particularly if discussing design changes) will always be the best course of action for a professional with design duties. Not only will such written communication and record keeping identify the agreed project to be undertaken, signify approval of any designs and identify at an earlier stage the divergence from the agreed brief (hopefully avoiding any unpleasant surprises for the client) but clear records will also provide evidence of agreement to any changes to the brief.  The judgment confirms the already established principle that a failure to keep proper notes will be construed against the professional seeking to rely on a change in instructions. In such circumstances the court is likely to prefer the evidence of a consistent and credible claimant witness, as both Mr Freeborn and Miss Goldie proved to be in this case.

The judgment also demonstrates an often overlooked aspect of professional negligence claims – the duties owed under contract as well as the duty of reasonable skill and care.  Here the architect had been instructed with a specific brief and significantly deviated from those instructions.  While there were arguments raised by the defendant that the final product was within a reasonable tolerance under the usual test of reasonable skill and care, the court rejected that argument and agreed with the claimants that the appropriate remedy was to demolish the finished product which failed substantially to fulfil the agreed project brief.

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