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Cinema Paradiso? Freeborn & Goldie v Dan Marcal Architects[2019] EWHC 454(TCC)

The Technology and Construction Court's decision last week in Freeborn & Goldie v Dan Marcal Architects treads fairly familiar territory in stressing the importance of an Architect having a clear, concluded appointment, establishing a defined brief and generally keeping accurate, contemporaneous records.  Nonetheless its subject matter (a suspended concrete home cinema) was sufficiently quirky for it to be featured in the national press and there are elements of the judgment which are noteworthy – not least the size of the award.

Background

The Claimants engaged the Architect Defendant to provide architectural services in connection with the conversion of the pool house into a function room and to build a home cinema with a sleek modern look.  The work would involve hibernating the swimming pool and installing a new wooden flooring to the pool house, together with electrical, lighting and joinery works.  There was also to be some work replacing the window casements in the main house.  There was some confusion over the Architect's appointment, in that an email from the Architect incorporating the RIBA Standard Form of Agreement 2010 (2012 Revision) was not received by the Claimants. The Architect argued that its appointment on an hourly rate basis indicated that it was engaged to provide ad hoc advice, but the Court found that the Appointment (partly in writing and partly oral) was to provide a full architectural service. Ultimately, the sleek modern look of a glass box suspended from the ceiling to house the cinema, supported by 4 legs was altered by the Architect to what the Claimants described as a "wonky industrial look". The Court held that this was so far from what the Claimants had expected and agreed to, that demolition of the cinema was considered to be the reasonable course. 

Decision

The Claimants were awarded the costs wasted on the cinema (less various retentions within the original Building Contract) together with the attendant costs of hibernating the pool.  They were also awarded £5,000 by way of general damages for stress and inconvenience.  The wasted costs spent on the condemned cinema (approximately £465,000) compared to a sum of approximately one third of that figure for remedying the defects in the cinema.  However, the Court rejected arguments that the Claimants were obliged to mitigate their loss by adopting the remedial scheme, and instead held that this would not address the Claimants' fundamental opposition to the aesthetics of the design – hence the ruling that demolition was justified.

Expert evidence

Perhaps unusually for a case with a sizeable judgment in the Claimants' favour, neither side's expert evidence was clearly accepted over that of the other.  Indeed in many instances, the view of the Defendant's architect's expert was preferred over that of the Claimants' expert; many of the individual allegations against the Architect were either dismissed or found to be unfinished work rather than actionable defects, and costs were not awarded against the Architect.  Whilst the factual evidence of the Claimants was praised by the Judge and generally preferred over that of the Architect, the latter's evidence was not found to be dishonest – merely rather confused. 

The judgment really centred around the Claimants' subjective rejection of the construction ultimately provided, in comparison with what the Court found had been debated with them by their Architect.  The absence of a clear brief and clear records of discussions looms very large in that respect.  The expert evidence on behalf of the Architect argued that on domestic projects, clients are on a "journey of exploration".  This is indeed a feature of domestic projects which householders (understandably) are most anxious to "get right" since they will have to live with the consequences indefinitely.  However, in the absence of any evidence that the Claimants were being properly advised during the course of that voyage, the Court held that the Architect was in effect on a frolic of its own and was, therefore, responsible if the outcome was unacceptable to the Claimants. 

Comment

Conventional advice to construction team members is to record everything properly in writing, in order to protect oneself from any subsequent (and possibly misleading) claims.  The Freeborn judgment actually goes further than that and refers to the absence of a brief as "a serious breach of duty". 

It should also be noted that, whilst the judgment stated in terms that the "standard of reasonable care and skill is not a standard of perfection" and whilst there was no suggestion of a higher duty than that applying, the Court does appear to have held the Architect to account on the basis of a higher duty; a major factor in the failure to deliver the required sleek modern design was the misalignment of the glass panels, which were nonetheless found not to be outside acceptable tolerances.  Nonetheless, the consequence of this (within tolerance) misalignment was such as to lead to a finding of breach of duty.

The case would appear, therefore, to be further bad news for architects and their professional indemnity insurers, particularly if it creates uncertainty as to the effectiveness of the defence of having exercised reasonable skill and care.  This is the point, though, where architects and consultants generally would be well advised to re-visit the basic principles upon which this rather robust judgment is based, namely the time-honoured importance of records.  A properly established project, with i) a transparent Appointment; ii) a record of the key terms having been explained to the Client, and iii) an established regime of regular, minuted client meetings, with alterations to the project objectives properly reflected, would provide a strong framework in the event of the project (as here) taking an unexpected turn.  Indeed, such documentation may well have identified at an early stage, the divergence of the design expectations in the present case, saving both the Claimants and the Architect the distress that ended up being played out in the Technology and Construction Court in London.

 

Contact

For more information please contact Mark Klimt, Partner Mark.Klimt@dwf.law

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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