It goes without saying that an architect should agree with his or her client in advance the design brief for the intended works. However, should the brief be documented and what are the consequences of not documenting the brief? Further, should changes to the design brief be documented as well? As any lawyer can explain, there is no requirement for a binding legal agreement to be in writing so why should there be a requirement for an agreed design brief to be in writing? The recent TCC decision of Philip Freeborn and Christina Goldie v Daniel Robert de Almeida Marcal  EWHC 454 is authority for the proposition that, in most circumstances, an agreed design brief should indeed be recorded in writing and the failure to do so or to record changes to the brief was in and of itself a serious breach of duty.
The importance of a written contract for architectural services to be provided has long been recognised by the various regulatory bodies of the architects’ profession. The RIBA Code of Professional Conduct (2019) sets out the standards of professional conduct which RIBA expects of its members. Principle 2.2 requires all terms of appointment and any variations to them to be “clear, agreed and recorded in writing.” The Architects Registration Board contains similar provisions in the ARB 2017 Code of Conduct. Section 4.4 of the Code states that there should be a written agreement with the client covering various issues including, inter alia, “the scope of the work”. However, neither code includes a requirement that the design brief should be in writing.
If there is an agreement between the parties and, if that agreement requires the brief to be put in writing, it will obviously be an express legal requirement of the contract. It should be noted that the standard RIBA architect’s appointment contains a detailed definition of “Brief” as follows:
“the latest statement of requirements for the Project issued or approved by the Client:
At inception, any initial statement by the Client;
After clarification of the objectives, the Design Brief (or Output Specification); and
Any subsequent development into the Project Brief.
The Brief shall include any information or drawings prepared by or on behalf of the Architect and approved by the Client during the development of the Brief.”
The Design Brief and the Project Brief are specific aspects of the architect’s services. It is to be noted that the brief is to be in the form of a “statement of requirements”. A written statement is not expressly required although this will or ought to be the normal approach. The brief must be either issued or approved by the Client.
Absent an express term, it may be possible to imply a term into a contract on the basis of the normal common law rules for the implication of terms. However, it is not obvious why a term requiring the brief to be in writing should be included under such rules. This is particularly the case when the RIBA standard agreement does not even require it. There has been some judicial support for the idea that an architect has an implied duty to review his or her design particularly if the architect has a duty to supervise or inspect the construction work. Designs are generally documented in the form of, at the very least, a drawing. To that extent, therefore, the design is in written form. However, this is not necessarily the case with design briefs particularly in relation to simple projects.
Philip Freeborn and Christina Goldie v Daniel Robert de Almeida Marcal 
The Claimants retained the Defendant architect to design the conversion of their pool house into a cinema room. They wanted the cinema room to be a glass box on legs with a sleek modern look as shown in early 3D representations. The room that was eventually constructed had a “wonky industrial look.” It was accepted that the design brief had changed but there was a dispute as to whether this had been agreed by the Claimants or not.
The judge concluded on the facts that the Claimants had not agreed to the change to the design brief and the resulting “wonky industrial look” design. The judge went on to consider an architect’s duty in connection with the original design brief and also changes to the design brief.
As regards the design brief, the judge found that the Defendant architect’s failure to produce a written brief at the outset was a breach of duty. He said that it would only be in exceptional circumstances that a written brief would not be required and, if those circumstances existed, the architect should explain (once again in writing) why no written brief had been prepared and any failure to give such explanation would also be a breach of duty.
The judge also concluded that the very same approach should have been adopted in relation to changes to the design brief – namely that any agreed changes to the brief should be documented. The judge described the need for this as “an essential part of the architect’s services”.
Much time was spent at trial trying to understand the meaning of various scribbled notes in the Defendant architect’s daybooks upon which the architect sought to rely to show that the Claimants were aware of and agreed to the changes to the brief. These were described at court as a “tumble dryer of information” and the judge concluded that they were almost completely unreliable. One suspects that the somewhat unusual finding by the judge that it was a breach of duty to fail to put the brief or amendments to it in writing might have been driven by the state of the Defendant architect’s documentary records.
Lessons for the future
While the judge’s findings of fact in the Freeborn case can readily be understood (he was plainly frustrated by the architect’s poor documentary record and performance in the witness box), his conclusion that failing to document the design brief and changes to that brief were breaches of duty in their own right is less easy to understand, not least because it was not necessary for him to come to this view as he had already found that the change in the design brief had not been agreed. It is only a first instance decision and it will remain to be seen whether it is followed or endorsed in the Court of Appeal.
Regardless of the legal niceties of the decision, the case is a clear reminder to all architects of the critical importance of (i) agreeing with the client the original design brief and any changes to that brief throughout the design process and (ii) documenting that agreement. Whether or not the failure to do so amounts to a breach of duty, there can be no doubt that documenting the agreed brief and agreed changes to it, ought to help to avoid disputes in the future. This is particularly so in relation to novel, unusual or particularly complex designs where the client may not have fully appreciated the end result from the early design discussions and 2D drawings.
Insurers routinely ask architects if their appointments are in writing. Perhaps they should also ask architects if the design brief, the design and any changes to that brief or design are agreed and documented. This may help to remind architects of the importance of doing this and prevent some avoidable claims in the future.
If you would like to know more about this matter, please speak to your contact at Plexus:
Simon Combe, Partner
T: 0207 220 5983 | M: 07770 437 787 | E: firstname.lastname@example.org
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