Construction PI: architect's duty to record brief and any developments in writing

A recent TCC decision has provided a useful reminder that an architect should provide its client with a written brief setting out the client’s requirements and record any changes or developments of that brief as the project progresses. A failure to do so can lead to misunderstandings between the client and architect and, ultimately, claims against the architect.

Background

The claimant homeowners engaged the architect to design the conversion of a pool house into a function room and to build a cinema at their property.

The key dispute between the parties was whether or not the architect redesigned the cinema without telling the claimants and arranged for its construction to a design that the claimants had not approved.

The Technology and Construction Court found in favour of the claimants; with Mr Martin Bowdery QC, sitting as a Deputy High Court Judge, stating [at paragraph 77]:

“the brief [for the cinema] was not only not properly prepared and documented or agreed orally or in writing and…the features of the brief, which the Claimants so dislike, were not, in fact, approved by them”.

Documenting the Brief

At the first meeting between the claimants and the architect, the claimants explained that they wished to convert the swimming pool in the pool house into a basement room containing a cinema and then create a function room at ground level. After discussions with a structural engineer, it was agreed that this would be too structurally complex and the basement cinema should be housed in a new basement under the existing kitchen/garage area. The initial brief for the design of the cinema was to comprise a glass box supported by four legs within the new basement. The claimants described the design as a "sleek modern look".

The initial brief was not, however, recorded anywhere in writing. Nor were the meetings, in which the brief was discussed, minuted by the architect.

Developing the Brief

At some point during the design development, the architect modified the design of the cinema so that the number of columns supporting the cinema increased from four to six. The effect of that design change was that the "sleek modern look" was lost and was replaced with what Mr Bowdery QC accepted was a “wonky industrial look”.

The architect was unable to provide any convincing evidence that it had informed the claimants about the design change or sought their consent to that change before arranging its construction.

Decision

The Court held that the architect had redesigned the cinema without telling the claimants and arranged for the construction of a cinema box which they had not approved and which was significantly and critically different from the sleek modern look they were expecting.

Mr Bowdery QC stated that a reasonably competent architect should ensure that the initial brief is recorded in writing and, where a project involves a novel design, the brief should be expressed not just in words but also in drawings and / or a mock-up or a 3-D drawing. It was accepted that there may be exceptional circumstances in which a written brief would not need to be produced, but, even in such exceptional circumstances, Mr Bowdery QC held that a reasonably competent architect should explain in writing to the client why those exceptional circumstances meant that a written brief would not be produced.

As regards changes to the initial brief, Mr Bowdery QC held that such changes should be recorded in writing and communicated to the client.

The Court did not award the costs of rectification, which is the ordinary measure of damage when an architect has acted negligently. Instead, the claimants were awarded the costs of demolishing the cinema and replacing it with a function room as they had originally intended. Mr Bowdery QC held [at paragraph 143]:

“The cinema as-built is so different in kind to what was anticipated and, given my findings that none of this “design development” was even discussed with or agreed to by the Claimants, I consider that they are fully entitled to demolish the cinema”.

Mr Bowdery QC’s decision is likely to have been influenced by the fact that the Claimants’ preference was to demolish the cinema and replace it with a function room, which was considered likely to cost less than the rectification cost. Indeed, Mr Bowdery QC doubted that “this particular ugly duckling could be turned into a swan”.

Interestingly, the Court does not appear to have considered the application of the “loss of amenity" measure of damages (see Ruxley Electronics and Construction Ltd v Forsyth [1995] UKHL 8). This is presumably because, unlike in Ruxley, what was provided differed so markedly from what the claimants expected, that a loss of amenity measure of damages would not reflect the loss truly suffered by the claimants.

Comment

This case highlights the risk for architects (and their professional indemnity insurers) of failing to agree the design brief with the client in writing. As the claimants’ expert architect acknowledged, whilst agreement in writing might not seem vital at the time agreement is reached, problems begin to arise once the project is progressing and memories of what was agreed have faded. Similarly, if architects fail to record in writing how the design has developed, they leave themselves exposed to allegations that the client did not approve the changes. The cost of remedying changes that the client did not approve can be significant.

Further reading: Philip Freeborn, Christina Goldie v Daniel Marcal (t/a Dan Marcal Architects) [2019] EWHC 454 (TCC)