The dangers of defective record keeping – Freeborn & Goldie v Marcal

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The dangers of defective record keeping – Freeborn & Goldie v Marcal

Published 22 May 2019

The recent decision in Freeborn & Goldie v Dan Marcal Architects [2019] EWHC 454 (TCC) is a stark reminder for construction professionals of the importance of accurate written records. 

Comment

While the comprehensive failure to keep written records was an usual feature of this case, the decision serves as a reminder to construction professionals that accurate records are vital to protecting oneself against potential claims. 

Further, the case establishes that an architect’s failure to record in writing the client's brief (and subsequent changes to the brief) is itself a "serious breach of duty" and may give rise to a liability on the part of an architect if the brief is not met.

The facts

The Claimants engaged an Architect to design and manage renovations to their home.  The renovations included the construction of a cinema room within the Claimants’ pool house, to look like a glass box suspended in the ceiling space.  The cinema room as constructed was a wooden box, featuring panels of glass with conspicuous metal fixings, supported by six industrial style steel legs.  The Claimants were surprised and unhappy with the finished product, which they described as having a “wonky industrial look” and not the “sleek modern look” they had requested.

The Claimants brought a claim against the Architect for breach of contract in the TCC in London.  They alleged that the cinema room was so different to what they reasonably expected that they were entitled to the wasted costs spent on it.  The Architect contended that the brief had evolved over the course of the project and that the Claimants had approved changes to the design.

Findings of the TCC

The Court agreed that the cinema room was significantly and critically different from the Claimants’ design brief.  It found that the Architect redesigned the cinema room and arranged for its construction without consulting the Claimants, and that the finished product was not what the Claimants expected to be provided and had not been approved by them.  The Architect "effectively went on a frolic of his own” and failed to obtain the Claimants’ informed consent at key times.

Crucially, the Architect was unable to offer evidence that the Claimants had approved changes to the design.  The Court described the Architect’s records as a "tumble dryer of information" and his approach to record keeping as "disorganised" and "chaotic".  The Court found that the failure to keep accurate records itself was a serious breach of duty.  The Architect could produce no written contract, no written brief for the project, no minutes of any meetings with the Claimants and/or the contractors, no progress or planning reports, and no interim accounts or valuations for the works. 

In determining the appropriate remedy, the Court found that if the Architect had 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.  Further, as the cinema could not be transformed into the expected design, the Court found that the Claimants were entitled to recover their wasted costs plus interest.  Accordingly, the Court awarded the damages of just under £500,000.

Authors

Christy Mellifont

Christy Mellifont

London - Walbrook

+44 (0)20 7894 6490

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