Freeborn v De Almeida Marcal (t/a Dan Marcal Architects Limited [2019] EWHC 454 (TCC)

The Court reminds architects of the importance of accurate and clear record keeping.
  • Submitted 14 March 2019
  • Applicable Law UK
  • Topic Construction

The case of Freeborn v De Almeida Marcal (t/a Dan Marcal Architects Limited [2019] EWHC 454 (TCC) is a must read judgment for all architects and construction professionals for a lesson on the importance of accurate and clear record keeping. It is abundantly clear throughout the judgment how unimpressed with the architect’s record keeping the judge was. He referred to the architect’s daybooks, notebooks and sketch books as a “tumble drier of misinformation” and described them as “confused, confusing and chaotic”. This also tainted the judge’s view of the evidence given by the architect at the trial, which he referred to as “self-serving assertions based on little though and chaotic records”, so it was of no surprise that he generally preferred the evidence of the Claimant.

Linked to that was the lack of written agreement and written brief, which of itself falls foul of the RIBA Principles, namely Principle 2 ‘Competence’ which expressly requires “Members should ensure that their terms of appointment, the scope of their work and the essential project requirements are clear and recorded in writing. They should explain to their clients the implications of any conditions of engagement and how their fees are to be calculated and charged. Members should maintain appropriate records throughout their engagement”.

There is no doubt that a written agreement is key, as is keeping clear records throughout the project in the form of meeting minutes, progress reports in a clear, understandable manner. If any conversations take place on site (or otherwise) with the client, make a clear note and if any changes were agreed orally ensure that the meeting is followed up with an email confirming what was discussed. We live in a world where ease of communication is a given so there is no excuse not to communicate clearly, effectively and promptly.

It was also found by the judge that the architect “effectively went on a frolic of his own”, producing a design other than that which the Claimants were expecting without seeking or obtaining the Claimants’ approval. This was a serious breach of duty which “went to the root of the difficulties”.

The final interesting point worth highlighting was the judge’s approach to the measure of damage. In this case the Claimants decided to demolish the cinema room that was at the heart of the dispute and the judge held that that decision was a reasonable one. He went on to say “Whilst I accept that the ordinary measure of damage when an architect has acted negligently is the cost of rectification, I do not consider that this particular ugly duckling can be turned into a swan. What was provided was so different to from what the Claimants reasonably expected that I consider demolishing this cinema is the reasonable course going forward”. This goes to show that the Court will look closely at the evidence and take a pragmatic approach, in this case the Claimants were clear in their contemporaneous reaction to what had been built and also gave clear evidence at trial.

Whilst the case is evidently very fact specific it does provide a salutary reminder on how a professional should not act on a project.

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