An interesting analysis of a recent large loss from Ben Hardiman at Mills & Reeve. Architects and engineers take note: “In the absence of documentation, particularly in the context of residential projects, courts will often prefer the client's evidence since their recollection tends to be viewed as more credible ”
Don't be shy about showing your briefs to your clients
Solicitors, brokers and risk managers regularly lecture about the importance of maintaining contemporaneous written records, including the terms of the contract entered into with your client. For architects, this is not simply good risk management; it is a requirement laid down by Standard 4 of the Code of Practice provided by the Architects Registration Board (the Code). A similar provision is laid down in the RIBA Principles under the heading of “Competence”.
A failure to follow the provisions of the Code potentially constitutes a form of unacceptable professional conduct and can form the basis of disciplinary proceedings against an architect. We have seen instances of the ARB taking a strong line even where there has been no significant downside for the client or the progress of their project.
A civil claim reported last year further emphasises the importance of record keeping in determining if an architect has acted negligently. The judge hearing the case of Freeborn and Goldie v Dan Marcal Architects placed heavy reliance on the Code when deciding that the architect had been negligent and so liable to pay his clients damages exceeding £500,000. The court's analysis is helpful to understand why the written brief, and subsequent record keeping, is so important.
What not to do
The architect was appointed to design a cinema room at the claimants' North London home. Written details of the appointment were limited and the architect argued that his initial brief had been changed by agreement. The design had 'evolved' during a series of site meetings and conversations with the Claimants where they approved various changes to the original design.
The Claimants denied the architect's version of events. They alleged that they expected a “sleek modern look” but got a “wonky industrial look”. Based on the concept drawings, the Claimants were expecting a glass box to house the cinema room, but got a wooden box with glass panels. The architect was said to have completely failed to illustrate, record in writing, explain or seek approval for additional supportive columns, the “industrious feel”, the form of glass panelling, visible bolts, wooden box, mechanical trap doors or the staircase to the cinema itself.
Crucially, the architect was unable to produce evidence of a written contract, any written brief for the project, minutes of meetings, progress reports or valuations for the works. The court described the documents he was able to produce as being “confused, confusing and chaotic”. His seemingly abysmal record keeping meant he could not credibly recall who said what to whom at any point in the project or who was even present at meetings.
To compound matters, when cross examined on the records he did keep, his daybooks (descried by the Judge as a 'tumble dryer of misinformation'), the architect was forced to admit that the notes alleged to be from a particular date could not have been written on or close to that date. The Judge described his answers as 'self-serving assertions based on little thought and chaotic records'. This all impacted on his credibility as a witness.
Is project size relevant?
Architects must be careful to ensure that even on smaller projects, a thorough record is kept of the brief and any changes to it. The Judge firmly rejected the architect's suggestion that residential projects could be dealt with on an informal basis, with written briefs and minutes of meetings unnecessary. In particular, the lack of documentation in this case was an evident cause of the losses claimed. The Judge emphasised that where there is a novel design and the project is small, a written brief is even more important. Importantly, the same approach should be taken to any variations to the written brief to ensure that the client's consent is obtained and recorded (preferably in writing) before variations take effect.
The Judge clarified that proper record keeping goes beyond managing client expectations; it is an essential part of the service provided by an architect because both architect and client need to know what to expect and how to proceed.
The claimants claimed to be entitled to demolish the cinema room because they said the normal measure of damages, which would be the cost of rectification, was not appropriate. The court agreed since it did not think 'this particular ugly duckling can be turned into a swan'. The built cinema room was “so different to what the Claimants reasonably expected” that it was appropriate and justified for the Claimants to incur the costs of demolition, removal and to effectively start again at a cost of nearly £500,000.
In some ways, the Dan Marcal judgment says nothing new by restating what the ARB and RIBA both require architects to do. However, it is an important reminder of basic principles and of the practical impact of failing to follow them. That practical application also makes it interesting reading for other consultants in the project team.
Construction claims often arise many years after the project concluded and our experience is that professionals will find it very difficult to recall and credibly explain what may have occurred on a particular project without supportive, detailed and comprehensible records. Failing to keep proper records not only puts architects at risk of regulatory criticism, it therefore also makes civil claims very difficult to defend.
In the absence of documentation, particularly in the context of residential projects, courts will often prefer the client's evidence since their recollection tends to be viewed as more credible because this will have been the only project they have ever undertaken. The architect may have undertaken tens or hundreds of projects in the meantime so it is harder to distinguish what happened on this as opposed to another project. As a result, a detailed paper trail is essential to help reconstruct how a project proceeded and recall what instructions the clients give as the project developed. Without it, claims are very difficult to defend.
Ben Hardiman is a Partner in the Insurance Disputes team at leading UK law firm Mills & Reeve. He specialises in handling claims against construction professionals including architects, engineers and other specialist consultants.