In the recent case of (1) Philip Freeborn and (2) Christina Goldie -v- De Almeida Marcal (t/a Dan Marcal Architects)  EWHC 454 TCC, the Technology and Construction Court (TCC) has once again found an architect liable for substantial damages arising from a failure to establish a brief with its client. This case follows the previous case of Riva Properties and others v Foster + Partners  EWHC 2574 (TCC) in which Ashfords successfully acted for Riva Properties. In that case, the TCC found Foster + Partners liable for the costs of Riva Properties starting again on its design for a 5* hotel due to Foster’s failure to establish the budget and identify the key requirements and constraints in breach of the requirements of RIBA Stage A and B which require the establishment of a brief. See our article regarding Riva Properties here.
The Freeborn case concerned the design of a home cinema suspended over an indoor swimming pool (which was part of a larger refurbishment project for Mr Freeborn’s home). Mr Philip Freeborn wanted the wow factor for his home cinema and sought a sleek modern approach when instructing Dan Marcal Architects. However, Mr Freeborn was not happy with the result and sought £1million in damages from Dan Marcal Architects for wasted costs and for demolition and re-building of the home cinema. Dan Marcal Architects denied liability, arguing that they followed the agreed brief as it had been developed throughout the project and agreed with Mr Freeborn and his partner Mrs Goldie in various meetings.
Through the progress of the trial it became clear that Dan Marcal Architects could not confirm that the Claimants were in attendance at the various meetings relied upon and nor did Dan Marcal Architects have a written record of agreements to changes in the brief. Furthermore, there was no written brief of the clients’ requirements which the Judge considered to be significant. All Mr Marcal was able to produce were his day books which the judge described as a “tumble dryer of misinformation”.
Consequently, the TCC decided in Mr Freeborn’s favour and held that Dan Marcal Architects had “redesigned the cinema box without telling the Claimants and arranged for the construction of a cinema box which they had not approved and which was significantly and critically different from the sleek modern look they were expecting”. As a result, Dan Marcal Architects were found to have breached the standard of care which required the initial brief to be recorded in writing along with any design development or changes.
The Judge further held that if there isn’t a written brief and a written record of changes to the brief, then the architect must explain this to the client in writing and the client must make an informed decision not to receive a written brief and written records of any changes of developments. In the absence of such written records, the judge held that Dan Marcal Architects went on a “frolic of his own” when producing the design
Consequently, Mr Freeborn was entitled to demolish and rebuild the cinema box to the brief that it should have been designed to all along (rectification being insufficient to turn “this particular ugly duckling… into a swan”) and was thus awarded £500,000 in damages to demolish and rebuild the home cinema.
This case once again highlights the importance of establishing the client’s brief from an early stage and for such a brief to be confirmed in writing for the avoidance of debate later.