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The price of not providing a brief

14 March 2019

An absence of written records was a deciding factor in a recent high-profile court decision against architect Daniel Marcal. The UK Technology and Construction Court ordered Marcal to pay the full costs of the cinema room he had designed, in excess of £500,000, to dissatisfied clients.

The judge found that what Marcal had delivered was substantially different from what was promised to, and agreed by, the claimants. Significantly, the key findings of the judgement stemmed from the architect’s failure to produce a written brief or a record of changes to it.

This provided Marcal little defence against the claimants’ evidence that he did not discuss or seek approval for the changes.

The judgement described the architect as going "on a frolic of his own" with the design and therefore liable for an outcome unacceptable to the claimants. Significantly for architects generally, the ruling specifically cited the absence of a written brief as "a serious breach of duty".

A CGI of Marcal's design for the proposed glass cinema room

The works included the conversion of a swimming pool area into a function room and the insertion of a high-level cinema room, to have the appearance of a floating (suspended) glass box with a "sleek modern look". Marcal's clients claimed that what they received was a room on legs with a "wonky industrial look".

Marcal argued that he had been appointed on an hourly basis to provide only ad hoc advice on the project. The court rejected this and found that his Appointment (partly in writing, partly oral) was to provide a full architectural service.

He was unable to produce any written appointment documents, nor any written brief, minutes of meetings with the client or contractors, progress or planning reports, nor valuations of works.

The court went on to find a number of defects with the project as constructed, including some misalignment of glass panels that particularly irritated the client, but many of the individual allegations against the architect were dismissed or found to be unfinished work – the architect had walked away from the project when the relationship with the client broke down.

The cinema room as delivered to the clients

Commenting on the judgement, RIBA special advisor Mark Klimt, partner at business law firm DWF, said the judgement centred upon the claimants’ rejection of the construction compared with what the court found had been discussed with the client.

The absence of a written brief and any clear records of discussions loomed very large in that respect.

"Architects and consultants generally would be well advised to re-visit the basic principles upon which this rather robust judgement is based, namely the time-honoured importance of records," advises Klimt.

Rachel Gwilliam, Partner at Blake Morgan LLP, offered a similar interpretation. "This case offers a salutary lesson for all architects: not only will a failure to record your client's brief (and agreed changes to that brief) clearly and in writing be regarded as a 'serious breach of duty', it may expose you to liability if the client's original brief is subsequently not achieved."

"Had Mr Marcal advised his clients at an appropriate point that the 'look' that they wanted was not achievable or needed to be compromised, they may well have decided not to spend their money on the cinema,’ Gwilliam suggests. ‘The claimants were denied that option by Mr Marcal's failure to appropriately engage with them at key stages."

Emily Monastiriotis, Partner at Simmons & Simmons LLP, concurs. "It is abundantly clear throughout the judgement how unimpressed with the architect’s record-keeping the judge was," she confirms.

She also points out that the lack of written brief falls foul of RIBA Principles, which expressly state that members should ensure that their terms of appointment, the scope of their work and the essential project requirements are clear and recorded in writing.

The RIBA provides a Domestic Professional Services Contract to make this process easy for both client and architect, with a ‘Project Brief’ section and a checklist that asks questions such as ‘Has the Project Brief and Client’s statement of requirements been agreed?’ The RIBA's Briefing Toolkit and Tracker also ensures that all parties can understand and successfully implement each stage of a project. 

"In the absence of documentary evidence, when a dispute arises the Court is likely to prefer the evidence of a lay client over than of the architect if there is any question about what was said and done, by whom and when," concludes Gwilliam.

"Without documentary evidence to challenge their testimony, Mr Marcal’s recollections (whilst accepted by the Court as being honestly held) were unlikely to trump those of his clients."

The judgement handed down by the Technology and Construction Court is referenced: Freeborn and another v Marcal [2019] EWHC 454 (TCC).

Thanks to Mark Klimt, Partner, DWF; Rachel Gwilliam, Partner, Blake Morgan LLP and Emily Monastiriotis, Partner, Simmons & Simmons LLP.

Text by Neal Morris. This is a Professional Feature edited by the RIBA Practice team. Send us your feedback and ideas

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