With no written brief, chaotic notes and no client sign off for design changes, this domestic project ended up as a courtroom drama
A recent high profile case involving the design aesthetics of a home cinema highlights the importance of having a clear, written brief and obtaining client sign off to design changes (as well as the flaws of using Pinterest).
Philip Freeborn and his wife engaged Daniel Marcal (a registered architect) to help convert the Pool House at their Barnet home into a function room and to build a cinema.
The plans for the cinema evolved and it was eventually decided that it would be housed in a glass box suspended from the ceiling of the Pool House supported by four legs. The photographs of the 3D mock up show a sleek design with glass walls, 4 slender legs and open tread stairs. The photograph of the finished cinema shows a wooden box with glazed panels and spider bolts, supported on 6 legs and, to adopt a phrase used by the judge, a ‘wonky industrial look’. The clients were distinctly unimpressed (‘shocked’ is a phrase which comes up in the judgment) and the matter ended up before the courts.
What comes out loud and clear from the judgment is that, aside from any design issues, Daniel Marcal failed to follow good practice (including the Architect Registration Board’s Code of Conduct) and this played a significant part in him being found negligent. The lack of a written contract, no written project brief and no meeting minutes confirming what was discussed and agreed with the clients or planning or progress reports all contributed to this finding. Mr Marcal’s day books, notebooks and sketch pads which he sought to rely on in his defence were described as “confused, confusing and chaotic”, containing a “tumble dryer of misinformation” which could not be readily understood “… let alone relied upon in the absence of any supporting contemporaneous document evidence”.
Clear client communication, backed up with good written records, will help avoid being in the same position as Daniel Marcal. There should be a written contract which confirms the scope of the retainer, the fee and who is responsible for what. The initial brief should also be recorded in writing (and tie in with any descriptions, drawings, sketches or 3D models showing what will be delivered) and any subsequent changes should be documented and signed off by the client. “Relying on sample boards, mood boards or pinterest pictures is not sufficient for both architect and client to have clarity as to what has been designed and what was to be built.” Meeting minutes should be written up and circulated to all attendees and monthly progress reports should also be distributed. The judge reinforced that this approach should be adopted irrespective of project size and the type of premises and client involved.
Damages tend to be awarded for the cost of rectifying defective work (which in this instance was actually relatively limited). However, as the judge felt “that this particular ugly duckling …. [could not] be turned into a swan” and because it was so far adrift from what the clients had been led to believe they would be getting, it was not reasonable to expect them to get used to it and demolition was the right option. The clients were therefore entitled to recover the costs of demolition, the wasted costs of the original works and, also unusually, a sum for distress and inconvenience.
In plain English – assignment
A party to a contract can transfer their rights and benefits in that contract, subject to the express terms of that contract, to another party. This is known as assignment. From a client’s perspective that could involve the right to receive the services whilst for a consultant it could be the right to receive payment. Obligations cannot be assigned – they can only be transferred by way of a novation. An assignment which satisfies certain statutory requirements is a legal assignment – all other assignments are equitable.