Freeborn & Anor v Marcal (t/a Dan Marcal Architects)

An architect providing design and project-management services must establish and maintain a sufficiently clear written brief. Design development and material changes must also be recorded in writing and approved by the client. For a novel or complex residential project, drawings, sketches or three-dimensional representations may be necessary to communicate the design.

Failure to document and communicate substantial changes can constitute professional negligence where it causes the client to receive a materially different design. The ordinary cost-of-rectification measure is not inflexible. Demolition may be reasonable where the completed work is fundamentally different from what the client reasonably expected and cannot reasonably be transformed into that design.

The claimants engaged the defendant architect to provide architectural and project-management services for alterations to their home, including a cinema constructed as a glass box and works to a former swimming pool. The claimants alleged that the defendant changed the cinema design without their knowledge or approval, failed to document the brief, and was negligent in relation to other building works.

The defendant denied negligence and contended that the claimants had approved the design, that he had acted on an ad hoc basis, and that the claimants failed to mitigate their loss. The central issues were the scope of the retainer, whether the design had been properly documented and approved, whether other alleged defects were attributable to the defendant, and the appropriate measure of loss.

1. Retainer and duty. The defendant was retained under a contract made partly orally and partly in writing to act as architect and project manager for the project. He owed the claimants the contractual and statutory duty to provide his services with reasonable care and skill under Supply of Goods and Services Act 1982, section 13. The duty imposed a standard of reasonable competence, not perfection or a guarantee that all works would be defect-free.
2. Written brief and design changes. A reasonably competent architect should record the initial brief in writing and record design development and material changes in writing. For a small project involving novel design, the brief should include appropriate drawings, sketches or three-dimensional representations and a detailed description. If the architect does not provide such records in exceptional circumstances, the position should be explained to the client in writing and the client should make an informed decision to proceed without them. The defendant’s failure to prepare and update a written brief was a serious breach of duty.
3. Unauthorised design. The defendant redesigned the cinema from the sleek modern appearance shown to the claimants to a materially different industrial design without explaining or obtaining approval for the changes. The absence of written records and consultation caused the claimants to receive a design they had not approved. This was the principal negligent failure.
4. Other works. The claimants failed to establish negligence in relation to most alleged defects, the hibernation of the swimming pool, the windows, competitive tendering or storage of the flooring. It was reasonable to rely on specialist contractors for specialist pool works. The authority concerning reliance on specialist contractors, Investors in Industrial Commercial Properties v South Bedfordshire DC; Ellison & Partners and Hamilton Associates (Third Parties) [1986] 1 All E.R 787 CA, was applied.
5. Loss and mitigation. The ordinary measure of damage for negligent architectural work is the cost of rectification, but demolition may be reasonable where the work is so different in kind from the approved or reasonably expected design that rectification is impracticable or unreasonable. The claimants were entitled to demolish the cinema. The reasonable and proportionate remedy was the wasted cost of the cinema and the cost of completing the function room, rather than reinstating the swimming pool.
6. Orders. The defendant was liable for the recoverable wasted costs, £26,000 for removal of the cinema, and £5,000 general damages for distress and inconvenience. Interest was awarded under Senior Courts Act 1981, section 35A, from April 2015, subject to calculation. The parties were invited to agree the order and costs.

Not an appellate decision. The judgment records a first-instance professional-negligence claim in the Technology and Construction Court.