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Professional duty: Back of a fag packet won’t work

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Sleek and modern?

This was the case of the swimming pool/glass box cinema, which hit the press in December 2018. You may recall pictures in the press showing a glass box, suspended over what used to be a swimming pool, with a number of unhappy faces outside court. If not, you can see for yourself here: https://www.standard.co.uk/news/london/financier-suing-architect-for-1m-over-ugly-floating-home-cinema-a4008916.html

As many of us know, works carried out in a domestic setting are often lacking in proper, or indeed any formal documentation. This case underlines the fact that architects have a duty to produce written briefs for clients at the outset and for any changes that are particularly important where the client is a lay individual.  It is for the architect to ensure that the client is informed of what is being designed and that the client knows what it is getting.

This case is also a reminder that any such agreement or brief should provide for a mechanism for any variation of the works, should this be required

It is paramount that all discussions and meetings with the client/employer, with regards to the scope of works are minuted and agreed by both parties.

As we see here the court is going to be sympathetic to a lay client, especially in the absence of proper paperwork.

Background

The Claimants, Mr Freeborn and Mrs Goldie, had instructed the Defendant, Mr Marcal, to act as their architect and project manager on a project to convert the pool house of their own home into a function room, with a staircase leading up to a cinema room. This meant that the pool would be “hibernated” and covered with wooden flooring, in order to create the function room and the cinema room would be in a raised position below the pool house roof. The Claimants had asked for the works to produce something with a “sleek modern look”.

The Claimants were extremely unhappy with the finished project. They claimed that the architect had re-designed the cinema room without approval and that the project was impossible to rectify. The Claimants also sought to blame the architect for faults with the windows and flooring to the swimming pool and brought a professional negligence claim against the Defendant.

Who won?

The Court awarded the Claimants damages of just under £500,000. The Court found that the Defendant was unable to produce a written brief of the project, which they said amounted to a serious breach of duty.

The Defendant tried to argue that the brief had evolved, but it could not be shown that the Defendant had ever obtained the Claimants’ informed consent to any such “evolution” or provided them with appropriate advice to say the project had evolved.

The Judge concluded that:

No attempt was made to explain that the sleek modern glass box was not being built and no attempt was made to explain what was built was being built. No reasonably competent architect would have made these errors’.

The Court found the architect’s record keeping to be inadequate. The daybooks, notebooks and sketch books were described as a ‘tumble dryer of misinformation’ and ‘confused, confusing and chaotic’. The lack of good record keeping clearly informed the Judge’s view in this case and led him to prefer the Claimants’ evidence.

The Court also described the Defendant’s actions as being ‘a frolic of his own, producing a wonky industrial design rather than the sleek modern design the Claimants were expecting’. At no point did the Defendant advise the Claimants that the look they wanted was not compatible with what they wanted to use the building for. It was observed that if they had been advised they may well have decided not to spend money on building a cinema.

Damages

The ordinary course for awarding damages for negligence is the cost of rectification. However, in this case, the Court found that what had been built was ‘so different to what the Claimants reasonably expected, that the demolition of the cinema was warranted’. As the judge said: ‘I do not consider that this particular ugly duckling can be turned into a swan’. The Claimants were therefore entitled to recover from the Defendant the wasted costs that were spent on the cinema, which included the costs of building and the cost of demolishing the building, plus interest.

Lessons to be learnt

This case reiterates the importance of keeping proper records and following professional best practice. It is also a decision which will surprise very few professionals.

Any architect should:

  1. Ensure that they enter into a written agreement with their client confirming:
    1. the scope of the work; and
    2. the architect’s, client’s and other contractor’s responsibilities; and
    3. how any subsequent variation to this agreement may be made.
  1. Variations to any brief should recorded in writing or by the prescribed procedure contained within the agreement and provided to the client. Ideally all documents should be agreed and counter-signed by the client before construction is commenced or any variation made.
  2. Minutes of all meetings should be taken and circulated to all in attendance and monthly reports should be issued to clients.

Failure to adhere to this practice can and often does lead to disputes of this nature. It is clear that in the absence of documentary evidence, a lay client’s evidence may well be preferred by the Court, given that this will generally be their only project whilst the architect/consultant may have a number of projects on the go at any time and would be expected to document all of these correctly and have a system for doing so. Projects inevitably grow arms and legs and evolve as they go along but failure to keep tabs on the changes and have a clear instruction to proceed will put the professional (and their fees) at risk.

Ben Rutledge

Trainee Solicitor

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