Freeborn v De Almeida Marcal (t/a Dan Marcal Architects ) [2019] EWHC 454 (TCC) is a good read for any construction industry professional who needs reminding about the risks of taking on domestic projects, and not addressing the all-important question of attention to detail and communication.
Background
Philip Freeborn and his wife, Christina Goldie ("Claimants") engaged Marcal (an architect registered with the Architects Registration Board) to both design and project manage some novel works to their house in Barnett.
The work involved hibernating a swimming pool which was self-contained in its own Pool House, the intention being to cover it over with wooden flooring so it could be used to entertain friends. Also included was the construction of a cinema room which would be situated in a raised position below the Pool House roof. It was described as a glass box on legs.
At the early stages of the project the parties discussed the idea of glass box, the design of which moved from being suspended below the Pool House roof, to standing with four legs as support. 3D mock-ups were created. The Claimants thought they would be getting a “sleek modern look”, however the final structure was suggested as having a “wonky industrial look”. As the Claimants said in evidence: “...we were promised precision bespoke and high end. This looks cheap and thrown together”.
The key issue in this dispute was whether or not Marcal had redesigned the cinema box without telling the Claimants, and arranged for the construction of a cinema box which they hadn't approved.
Whilst the dispute covered a wide range of allege defects, in relation to cinema, the Claimants sought damages for having to demolish it, together with the wasted costs of both designing and building it in the first place.
Seven Principles for Assessing an Architect’s Liability
The Judge set out seven principles which he felt applied to an architect’s duties and obligations:
1.The primary basis for the duties owed by an architect is the contract pursuant to which he is engaged;
2. It is common ground that the Defendant owed the Claimants a duty to provide the services he supplied with reasonable care and skill (s13 of the Supply of Good and Services Act 1982);
3. The standard of reasonable care and skill is not a standard of perfection. It does not make an architect the insurer or guarantor that the work has been properly done. It is not sufficient to prove an error to show that there has been a failure to exercise reasonable skill and care. A claimant must establish actual negligence;
4. An architect is entitled to recommend to a client 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;
5. An architect's obligation to supervise or inspect works will depend on various factors including the terms of the retainer, the nature of the works and his confidence in the contractor;
6. The Claimants are only entitled to recover any loss and damage caused by the Defendant's negligence and which they have sought to mitigate; and
7. The damage ordinarily recoverable where a building suffers from defects consequent upon the negligence of an architect is the cost of rectification.
Marcal’s Evidence
The Judge found Marcal to be a poor witness. Although he found him not to be dishonest, the Judge felt Marcal’s answers in evidence were “self-serving assertions based on little thought and chaotic records”.
By reference to “chaotic records” these included:
- the lack of a proper written contract with the Claimants. What was produced was something which was partly written and partly oral – a RIBA form of appointment was prepared for execution but sent to a wrong email address;
- no written brief;
- no minutes of any meetings with either the Claimants or the contractors which could then be agreed by the Claimants;
- no progress reports; and
- no interim accounts or valuation of the works.
The Judge referred to the notebooks produced by Marcal as being: “a tumble dryer of misinformation”. The notebooks he said: “are confused, confusing and chaotic”.
Marcal’s Liability
Given the above it may not be surprising the Judge found that, from the outset, the Claimants thought they were getting a cinema box with a “sleek modern look”. Unfortunately, however, it appears that over the course of project the design changed which hadn't been approved by the Claimants, and was critically different from the sleek modern look they were expecting. The “wonky look” was not discussed with the Claimants or approved by them. Marcal had gone off on a frolic of his own.
Accordingly, Marcal was held to be in breach of contract and negligent in failing to follow accepted practice.
Damages
The normal approach to damages in these types of situations is the cost of rectification, however in this case the Judge allowed the cost of demolition, primarily because what had been constructed was so different to what the Claimants had expected. The Judge commented:
“I do not consider that this particular ugly duckling can be turned into a swan”.
So there is an element here of the Judge allowing a greater recovery than otherwise might have been the case based upon aesthetic failings. If the Claimants had been kept in the loop at all stages (so had approved the redesign) then demolition costs are unlikely to have been recoverable.
Comment
Arguably a critical failing by Marcal was not to produce a proper written design brief from the outset, something which the Judge felt was even more important for small projects with a novel design.
Even if there had been a design which had been properly documented then to depart from that brief without the client’s express authority is likely to end in disaster - as was the case here. |
