Architect held liable for departing from agreed design: “wonky” is not the new black
In a February 2019 decision from the Technology and Construction Court (TCC): Freeborn and another v Marcal , an Architect has been held liable for damages for changing the design of a cinema room, which formed part of a refurbishment job at a private residence in London, “from sleek modern to wonky industrial”.
The TCC found that the architect had acted in breach of contract including by changing the design of the cinema room without informing the clients, let alone agreeing the changes with them. Damages just short of £500,000 were awarded.
The TCC set out seven overarching principles for assessing an architect’s liability including that whilst an architect must provide his or her services with reasonable skill or care this is not a standard of perfection.
The TCC held that an architect should produce a written brief that is shared with the client. Similarly, any changes to that brief should be put in writing for consultation with the client and agreed with the client. This course of action may only be departed from in exceptional circumstances with the client’s agreement.
Somewhat unusually the TCC held that whilst the usual measure of damages was the cost of rectification, i.e. putting the works right/useable, in this case, the claimants were justified in demolishing the cinema room because it was “significantly and critically different” from their expectations.
This has been considered to be a case in which the architect was found liable for producing an ugly design. However. while the clients’ dissatisfaction arose from the cinema room’s appearance, the architect’s liability was based the failure to follow good practice to such an extent that the TCC considered him negligent. By way of example the architect failed to produce: a written contract, a written brief for any part of the works, any minutes of meetings, interim accounts or valuations of the works.
It is noteworthy that the aesthetic failings in this case have been held to be relevant to the assessment of damages. Many will recall the well-known case of Ruxley Electronics V Forsyth  where famously the Court did not allow the costs of demolishing the swimming pool which was of an insufficient depth to perform dives. In that case the Court doubted the genuine intention to demolish the swimming pool, whereas here the genuine intention of the claimants appears to have been accepted.
It would be useful for architects to read the full TCC Judgment.Back to Our Thinking →