A recent judgment handed down by the Technology & Construction Court in Freeborn & Goldie v Dan Marcal Architects Facts The case concerned a multi-million pound house based in Barnet which had a connected pool house. The defendant architect was retained to develop a scheme to convert the pool house into a function room and to build a cinema. Following discussions with a structural engineer this was viewed as structurally too complex meaning the swimming pool would be converted into an orangery and a cinema room would be built beneath the existing kitchen area of the main house. The defendant architect recommended a glass box supported by four columns to house the cinema and created some 3D mock ups for the design. What was eventually built was described as the “wonky industrial look” by Counsel acting for the claimants instead of the “sleek modern look”. A dispute occurred as to what and when the design was changed and the extent to which the claimants were informed about that. The claimants sought damages from the defendant architect, assuming a number of alternative positions. Their primary case was that they were entitled to a) either £595,000 to re-instate the swimming pool or £163,000 to hibernate the pool properly; and b) £465,625 for wasted costs spent on the cinema room. Their alternative case was that they sought £150,000 they spent because the works were not tendered and about £100,000 that they had spent on design changes. On both cases, they also sought £50,000 for other remedial works, about £20,000 for works to the swimming pool and £10,000 for distress and inconvenience, altogether an additional £90,000. Therefore, their primary case amounted to £1,150,000 alternatively £718,625. Their alternative case amounted to £340,000. The importance of record keeping A number of points were raised during the trial in relation to the defendant architect’s record keeping. The architect’s case was that the scope and nature of his role changed over time as his instructions changed. However, this did not amount to an ad hoc arrangement and importantly the Judge held that a billing arrangement on an hourly rate basis did not indicate an ad hoc arrangement. The Judge also took issue with the architect’s notebooks, describing them as a “tumble dryer of misinformation” because they were “confused, confusing and chaotic”. The effect of that should not be understated. An e-mail referred to relying on 800 series drawings was also held not to exist. It meant that such records “could not be readily understood let alone relied upon in the absence of supporting contemporaneous document evidence”. In some respects, the judgment could be seen to go further than reminding professionals of the importance of maintaining accurate records. That is because it was held in some circumstances it may be “essential not only to agree the brief but also to ensure that the Claimants had a clear understanding as to what would be provided”. The extent to which the onus will be on construction professionals to ensure their clients understand a project and the manner in which to evidence that understanding will no doubt be subject to further case law and is likely to depend on the particular facts and circumstances. Losses However, this was not a total win for the claimants. They did not succeed in obtaining the full value of their primary cases. The Judge agreed that they had not accepted the change of the cinema from the sleek modern design to industrial wonky design look and that entitled them to demolish the cinema room (the Judge commenting that he did not consider that “this particular ugly duckling can be turned into a swan”). Nevertheless, it was also decided that “the recovery of the costs to reinstate the swimming pool would not only be unreasonable but would also totally ignore the Claimants’ own decision that they wanted to convert the swimming pool into a function room for parties and to entertain their friends and family”. That meant that the claimants were awarded about £430,000 for wasted costs spent on the cinema room and a further £26,000 for hibernating the pool and completing it as a function room. The claimants were also awarded £5,000 of distress and inconvenience. Further remediation costs sought were similarly rejected because they were “examples of incomplete rather than negligent design”. Significance The case highlights the importance for architects and all construction professionals to keep accurate and chronological records. Failure to do so can lead to difficulty when seeking to rely on those records at a later date. It is also important in relation to the recoverability of heads of loss. Here, the claimants sought both their wasted costs and remedial costs, as well as other consequential items. While the wasted costs were awarded, the claimants’ primary pleaded case for the re-instatement of the pool was rejected because on the claimants’ own case they had other plans to convert it into a function room. It is an important reminder that litigating loses flowing from construction projects requires a causative link being proved for every head of loss. If you have any questions, would like to discuss this article, or are seeking legal advice, please contact Alex Delin in our Dispute Resolution team.
[2019] EWHC 454 (TCC) is significant in a number of respects, namely the importance for architects and other construction professionals to keep accurate chronological records of their work and the losses which can flow from negligence claims.
