Freeborn & Anor v Marcal (t/a Dan Marcal Architects)

This judgment consists of seven sections:

INTRODUCTION

This is a claim for professional negligence brought by the owners and occupiers of a house at 3 Horseshoe Lane, Barnet. The property consists of a Main House and a Pool House. The Pool House is connected to the Main House by a linking room. The Defendant is an architect registered by the Architects Registration Board. He has been employed by various companies and the projects he has been involved in have been shortlisted for and have won awards.

The Defendant and Christina Goldie first met on the 7^th May 2014. The Defendant’s brother had been carrying out works to the Claimants’ garden and introduced them to each other. Christina Goldie wished to convert the Pool House into a function room and to build a cinema for her husband Philip Freeborn.

Between 2014 and 2016 various works were carried out to both the Main House and the Pool House including:

The contractors principally involved in these works were:

There were 10 witness of fact called to give evidence.

The Defendant also filed and served a witness statement from Mr Williams who lives in Canada and did not attend the court.

There were five experts:

The Claimants provided a revised list of issues to the Defendant on the 28^th November 2018. The Defendant’s written closing submissions were very helpfully updated to cross-refer to the issues identified is that list where appropriate. Appendix 1 contains the List of Issues.

The Defendant contends that the following principles of law relating to the duties and obligations of architects should be applied:

The Claimants in their written and oral submissions have not sought to challenge or to correct these submissions which I accept are an accurate summary of the general principles of law relating to the duties and obligations of architects.

As the Defendant in his closing written submission correctly identifies:

“The key dispute between the parties is whether or not Mr Marcal redesigned the cinema box without telling the Claimants and arranged for the construction of a cinema box which they had not approved.”

That issue will have to be analysed after the issue as to the Defendant’s retainer has been resolved.

The Defendant’s case is that the scope and nature of his role changed over time as his instructions changed. The Defendant’s opening position was that he entered into an ad hoc contract with the Claimants under which he provided various architectural services in relation to the cinema room and Pool House as well as miscellaneous works to the Main House. These services were provided at an hourly rate of £35 per hour and were invoiced directly by the Defendant to the Claimants.

I reject that analysis. The submission that the Defendant acted on the basis of ad hoc instructions is inconsistent with the facts. I consider and so find that the engagement was made partly orally and partly in writing in May and June 2014.

By an email dated the 9^th May 2014 Dan Marcal informed Christina Goldie:

“Dear Christina,

Hope this email finds well. Further to our discussions earlier this week, I would be very happy to work on developing and managing a scheme to reconfigure your swimming pool area and connecting space.

In terms of a way forward we can split the works in to the following:

Also, on the 9^th May 2014 by an email directed to the wrong email address for the Second Claimant the Defendant invited her to sign and return the RIBA Standard Agreement 2010 Conditions for Appointment for an Architect 2012 Edition. The Claimants never received that email or the enclosed Standard RIBA Conditions but the fact that they were sent suggests that the Defendant was expecting to be appointed and to act as architect for the project.

Christina Goldie replied on the 9^th May 2014 to the email she had received and stated:

“That all sounds great. My husband is due back tonight so I would like to show him your email and get back to you on Monday if that is ok.

Have a great weekend.”

Having spoken with her husband Christina Goldie further responded on the 13^th May 2014:

“Dear Dan,

Hope you had a good weekend. We would like to go ahead and I am really pleased that you will be able to design and project manage the whole thing. Let me know what happens next.

Best wishes

Christina”

There was a further meeting held on the 19^th May 2014 during which it was understood the Defendant would act as Architect and Project Manager in respect of the works.

Then by an email dated the 7^th June 2014, the Defendant emailed Christina Goldie and stated:

The Defendant eventually invoiced the Claimants for something in the region of 1,000 hours of work in the overall sum of £35,000 for the services he provided.

In the circumstances I consider that by a contract made partly orally and partly in writing the Defendant was retained as architect and project manager to provide a full Architectural and Project Management service for the project at a fee of £35 per hour.

Insofar as Ian Salisbury in his report and during his evidence sought to support a series of “ad hoc” appointments I reject that part of his evidence. Whilst generally an impressive and convincing expert witness on this issue an independent expert can provide little if any assistance. For example, I disagree that a billing arrangement based on an hourly rate indicates an ad hoc arrangement. Similarly, it is unnecessary to rely upon “Occam’s” or rather Ockham’s razor which states that the single explanation which explains the facts before you is to be preferred to explaining those facts by a host of different explanations as I was invited to by Counsel for the Claimants. The evidence that the Defendant was appointed as architect and project manager for the entire project was clear and convincing. In contrast no attempt was made by the Defendant to plead and prove the list of instructions which cover all the acts the Defendant undertook.

The Defendant’s further contention that the Defendant’s retainer was varied at a meeting on the 9^th July 2015 is inconsistent with his continued involvement in all the activities and in all the matters he listed as having been handed over to the client.

The meeting note which is said to have recorded that agreement is to be found in Bundle

Bundle Q contained extracts from the Defendant’s daybooks, notebooks and sketch pads. As volunteered by the Defendant these notebooks contained a “tumble dryer of information”. I would suggest a “tumble dryer of misinformation”. The notebooks are confused, confusing and chaotic.

They are not in any chronological order or indeed in any order. It was pure chance which led to any daybook, notebook or sketch pad being used on any particular day or for any particular project or, indeed, being used for personal rather than professional purposes. The Defendant had no clear recollection whether any entry was a proposed agenda, minutes of a meeting or subsequent retrospective musings. It was never clear from the notebooks who attended any particular meeting or who said what.

Given that the Defendant produced:

For example, despite that First Claimant being cross examined on the basis that the Defendant’s note was a truthful record of what was discussed and agreed on the 9^th July 2015 Counsel for the Claimants in a careful and thorough cross-examination forced the Defendant to concede that those notes could not have been written on the 10^th July or even close to that date.

There was a limited attempt to resurrect the Defendant’s credibility when he was reexamined and it was suggested that “raked ceiling” was in fact a reference to the unraked piece of plasterboard which had been substituted for the lengthier horizontal piece of glass at the top of the cinema. That attempt to suggest that one of the reasons why the note was written on or about the 10^th July 2014 was unimpressive and cannot begin to repair the damage done to the Defendant’s credibility by this cross examination.

Counsel for the Claimants put it to the Defendant that this part of his evidence was a “plain and straightforward lie”. The Claimants’ closing submission stated that the date 10^th July written on the note is a forgery and a lie. I consider and so find that the Defendant's answers were not dishonest. They were self-serving assertions based on little thought and chaotic records. Whenever the note dated 10^th July 2015 was written and it may have been written on a number of occasions it clearly was not written on the 10^th July 2015 and did not accurately record what was discussed let alone agreed on the 9^th July 2015. On this issue I accept the Claimants’ evidence that the Defendant’s retainer was not raised at this meeting on the 10^th July as alleged by the Defendant.

Perhaps as a result of this cross-examination, the Defendant in his Written Closing Submissions sensibly and, perhaps, inevitably, conceded that

“The precise scope of Mr Marcal’s retainer is less important to the determination of this case than it might appear from the statement of case.”

It was then accepted at paragraph 17 and 18 of the Defendant’s Written Closing Submissions that:

“17.

Mr Marcal accepts that he produced the architectural design for the cinema room on legs and that he was responsible for that design meeting the requirements (such as they were) provided by the Claimants. He also accepts that he agreed to co-ordinate contractors and inspect the cinema room works. He accepts that he was obliged to carry out that work with reasonable skill and care.

18.

The main dispute between the Claimants and Mr Marcal is whether his design met their requirements and whether they agreed to it. Mr Marcal does not dispute that he was responsible for producing the concept design. He was not responsible for the structural engineering drawings but it does not appear that that allegation is being made against him.”

At their first meeting Christina Goldie suggested that she wanted to create a cinema for her husband. The idea at that stage was to use the swimming pool as a basement room containing a cinema and then create a function room at ground level. This was referred to as Scheme 1.

After discussions with a structural engineer Graham Ling of Greig Ling it was decided that the basement cinema was structurally too complex and it was agreed that the Defendant would consider the feasibility of creating a new basement under the existing kitchen/garage area of the Main House which would home the new cinema. The swimming pool would be converted into an orangery. This was known as Scheme 2.

The Defendant submitted a planning application for Scheme 2 which was approved by Barnet Borough Council. However, in around October 2014 it was decided not to proceed with Scheme 2.

In October 2014, the parties began discussing a glass box suspended from the ceiling to house the cinema. The Defendant recommended a glass box supported by four legs and it is common ground that the Defendant began to develop a design for a glass box supported by four legs. The proposed design was encapsulated in some 3D mock ups which were sent to the Claimants on the 30^th October 2014. A copy of those mock ups is attached and is set out in Appendix 2 annexed hereto.

What was eventually provided is shown in the photographs at T/6278 which photographs are set out in Appendix 3 annexed hereto. It is the Defendant’s case that the transformation of the glass box scheme from what has been described by Counsel for the Claimants as the “sleek modern look” illustrated by the 3D mock up as exhibited by the photographs at Appendix 2 to the “wonky industrial look” again to adopt the description used by Counsel for the Claimants as shown by the photographs in Appendix 3 was agreed at the meetings held:

When cross examined the Defendant accepted that the First Claimant may not have been at this meeting. He also accepted that the “meeting note" contained in his notebook contained matters discussed in the pub with Ridlands alone before the meeting began. He now cannot be clear what was said at the meeting with the Second Claimant.

There was more than one 19^th November 2014 meeting. The note in the daybook which the Defendant relies upon concerns moving the staircase to the gable wall. It says nothing about increasing the number of columns from four to six.

Christina Goldie in her evidence was adamant that she was not present at any meeting on this day. However the note in the “tumble dryer of information” shows not six but ten columns. The Defendant says when cross-examined that he marked out the position of the six columns in magic marker for the Second Claimant’s benefit. In his witness statement he said he marked out the position of the columns in chalk. However Miss Goldie says she was not there and as at the 17^th March 2014 the number and location of the columns was still in a state of flux although, for example, at this stage the number of columns was ten. There is no email confirming any discussion with Miss Goldie let alone a discussion where the number of columns had been increased from four to six or, indeed, ten.

In cross examination the Defendant accepted that there was more than one meeting on this day. The First Claimant had a meeting with the Defendant and Olive Audio. There is no clear record that at any of those meetings four, six or ten columns were discussed let alone approved by the First Claimant. The Defendant then asserted that that doesn’t matter because he agreed the column positions with Christina and not with Philip Freeborn.

None of the Defendant’s accounts as to how the design developed from sleek modern to wonky industrial to use the words of Counsel for the Claimants, which I consider is a fair description as to what was anticipated by the Claimants and as to what was provided, is convincing. The Defendant’s general lack of credibility when it comes to making the best of what he scribbled in his daybooks makes his history of the alleged development of the design very difficult to accept. The parties communicated mainly by email. It is striking that there are no emails which show that the Claimants knew let alone approved the transformation of the sleek modern design for the cinema box to the industrial wonky look eventually provided.

The Defendant now relies on 800 series drawings allegedly emailed and posted to the Claimants on the 8^th May 2015 or as originally pleaded on the 9^th May 2015. It is these drawings relied upon by Ian Salisbury in his evidence which it is suggested show the Claimants’ consent to the development of the brief. Sadly the email referred to does not exist. There is no proof of postage. Even the suggestion that on the 8^th May 2015 there was a meeting to discuss and approve the 800 drawings seems highly improbable:

The emails of 8^th May which were put to the Defendant in cross examination concern all sorts of other matters but do not mention a drawing review. I consider and so find, as the Second Claimant contends, no meeting took place on that day.

In general, I accept the evidence of the Claimants that they never received the 800 series drawings whether by email or by post. Their evidence on this point was clear and convincing. The Defendant’s evidence was muddled and confused.

As the Claimants’ Counsel put it in his Written Closing:

“The case asserting a critical meeting on the 8^th May is another attempt to build a case retrospectively from scant hints in the notes of Mr Marcal.”

I agree with that statement. I also find and so hold that Mr Marcal redesigned the cinema box 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. The wonky industrial look was not discussed with the Claimants, was not what they expected to be provided and had not been approved by them.

The disputes of fact as to whether certain issues were, in fact, resolved and agreed orally at various meetings was a new case contrary to the pleaded case that the changes were approved by reference to drawings. This new case requires the Claimants to prove a negative that at no time during the six months of alleged meetings to discuss and approve the developing design were the things they now take exception to agreed to and approved by them. I am satisfied on their evidence that at none of the meetings referred to was the industrial wonky design eventually constructed ever shown to the Claimants, let alone was agreed to by the Claimants. In respect of the case put to Ms Goldie that there was agreed to by the Claimants or was approved by the Claimants an agreement on an industrial design in November 2014 on the basis of a few pinterest pictures:

The expert evidence with regard to the “key dispute” or “main dispute” differed on one important topic, how an architect should record a brief and develop a brief. As the Defendant explained in his Witness Statement :

“5.

I am an Architect. I obtained my BA in Architecture (RIBA Part 1) from Manchester University in 2001. I then obtained a first class (with commendation) Diploma in Architecture (RIBA Part 2) from the Bartlett School of Architecture, University College, London in 2004, and completed my RIBA Part 3 (with Merit) at London Southbank University in 2006. I am a member of the ARB.”

John Perry, in his first Report, explained that :

“5.1.9

Mr Dan Marcal is registered with the Architect’s Registration Board (“ARB”) under registration number 072365G. Please see http://www.architects-register.org.uk/search/name/marcal.

5.1.10

Such registration entitles Mr Marcal to use the protected title “Architect”. This title has the meaning given to it by the Architects Act 1997 http://www.legislation.gov.uk/ukpga/1997/22 /pdfs/ukpga 19970022 en.pdf. To gain this title a particular level of training and experience is required. A person registered with ARB is required to abide by the ARB’s code of practice. I include a copy of the Code current at the time of Mr Marcel’s work in this matter at Appendix 3 to this report. This Code may be referred to as the ARB 2010 Code of Conduct (“ARB 2010”).

5.1.11

In my opinion the conduct of Mr Marcal stands to be judged against the standards set out in ARB 2010.

5.1.12

I set out below a copy of sections 4.4 to 4.7 of ARB 2010:

“4.4

You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:the contracting parties;

•

the scope of the work:

•

the fee or method of calculating it;

•

who will be responsible for what;

•

any constraints or limitations on the responsibilities of the parties;

•

the provisions for suspension or termination of the agreement;

•

a statement that you have adequate and appropriate insurance cover as specified by the Board;

•

your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration).

4.5

Any agreed variations to the written agreement should be recorded in writing.

4.6

You are expected to ensure that your client agreements record that you are registered with the Architects Registration Board and that you are subject to this Code; and that the client can refer a complaint to the Board if your conduct or competence appears to fail short of the standards in the Code.

4.7

You should make dear to the client the extent to which any of your architectural services are being subcontracted.”

Where John Perry disagreed with Ian Salisbury was in whether the brief should be written down and when that brief is changed or varied, whether those changes or variations should be recorded in writing. Ian Salisbury’s view was that the brief need not be recorded in writing and that meetings need not be minuted. He explained that in his view, based upon his experience, residential projects could be dealt with more informally and that it was less important to minute matters in a small job.

I disagree. Although I was not taken to any technical guides or professional publications, I would consider that it would be bad practice for:

On the facts of this case there was :

As John Perry concluded in his Report at paragraphs 5.1.21 to 5.1.22:

“5.1.21

For such work in my opinion a competent architect would agree a brief in writing with his client(s). I have seen no such written brief in this matter. In the absence of a written brief it was unclear to the claimants what the final design should achieve in terms of accommodation, cost, level of finish and operational requirements.

5.1.22

Equally there is no record of what the architect was trying to achieve for his clients.”

As John Perry expressed on Day 4, pages 32 and 33:

“Q. Now, you presumably also accept, Mr Perry, that what an architect is required to do depends on what he has agreed to do with his client, and what the client has asked him to do?

A.Yes, it’s commonly called a “brief”.

Q. And as part of that, you need to look at both what it was that passed between the parties - so, any discussions, emails or anything written down.

A. Well, what I look for, as an architect, is a brief. A set of instructions agreed between the client and the architect and then a written brief which sets out the basis on which design - for which the design should aim. A brief may change over time, but the brief will be updated over time to reflect how that design was to change.

Q. Well, you are answering a slightly different question. What I am - what I am asking ---

A. I’m sorry.

Q. --- about is a brief, at its most simple, a brief simply reflects the client’s requirements, would you agree with that? A. I agree.

Q. And a client can express those requirements in a number of different ways, would you agree with that? A. I wou --- I would, yes.

Q. And the purpose of establishing a brief is so that both client and architect understand what the client is requiring?

A. I agree.

Q. And so what you are aiming for is for them to be in agreement?

A. The client and the architect and the brief to be in agreement?

Q. Well, client and architect to agree as to what ---

A. The brief is.

Q. --- the client - exactly. Now, you can then, if you wish, put that in writing, but it does not change the fact that it - that the clai - the client and the architect have already agreed what is to be done.

A.

In - in my experience, and in my opinion, if this - building design is a complex matter and if at that early stage what is agreed is not recorded in writing, I - I find it very difficult to see how a project can progress. I - I agree if it’s agreed, it’s agreed. What is difficult is to know what was agreed down the line because what you - what you do as an architect is you look back down the line to see what was agreed and you look to see how it was expressed in writing, in my experience, but I agree with you to make agreements. I agree with you, you can agree something without writing it down, but it doesn’t help in two months’ time when you want to know what was it we did agree.”

I agree with those comments.

I do not accept Mr Salisbury’s evidence given during his cross-examination when he tried to explain why it is common in domestic projects not to have a formal brief, see Day 5, page 15:

“… as often as not, clients don’t know exactly what they want when they start off, except that they have a notion as to what they want, but don’t know how to do it. So they go into a journey of exploration with the architect. That’s quite normal and an essential part of the architect’s duty…”

This journey of exploration was a journey taken by the Defendant without inviting the Claimants to accompany him or even with the Claimants being told where he was heading to. To avoid misunderstandings at the very least, a written brief is essential and changes to that brief must be recorded in writing whether by drawings, sketches and/or minutes of meetings. If that is not done, the absence of such written records must be explained to the clients in writing and they must make an informed decision not to receive a written brief and written records of any changes or developments of that brief.

This is not only necessary but the absence of these documents was causative of the losses claimed on this claim. The Defendant effectively went on a frolic of his own producing a wonky industrial design rather than the sleek modern design the Claimants were expecting. Again, I accept John Perry’s evidence that a written brief is of even greater importance when the project is a small project with a novel design. In those circumstances, it is even more important to have a brief expressed not just in words but there must be a drawing and/or a mock-up or a 3-D drawing and a detailed written description of the design so I find that any reasonably competent architect should ensure that the brief is recorded in writing whether or not that is best expressed in 3-D sketches together with drawings and detailed descriptions. I would also find that any reasonably competent architect who did not in exceptional circumstances produce a written brief and did not explain in those exceptional circumstances in writing why such a written brief had not been produced would be in breach of any duty of care owed to the client.

The same approach should also be adopted to any changes or variations to the written brief. This approach is not to help manage a client’s expectations as to what is being designed and what can be built. This approach is an essential part of the architect’s services paid for by the client. This approach, I consider, is all the more important where there is an element of unfamiliarity in the relationship between the client and the architect to ensure that the client knows what is being designed and the architect knows what the client expects to be built.

THE ISSUES OF ALLEGED BREACH BY THE DEFENDANT

1.1 and 1.2 : For the reasons set out above, and in light of the evidence, the engagement was made in May and June 2014 and that it governed the relationship between the parties until the end of 2015 and beyond is the only sustainable analysis of the relevant evidence. The Defendant did not act on an ad hoc basis, either as architect or project manager.

1.3 : The suggestion that his appointment was varied at a meeting on 9^th July is inconsistent with the relevant evidence and incidentally with his continued involvement in all matters which he said had been handed over to his clients.

The suggestion made by the Defendant that he was over-awed by the First Claimant and did work which had been agreed would be done by others I find difficult to accept because Philip Freeborn, when he gave evidence, did not give the impression that he was over-bearing and the Defendant, when he gave evidence, gave the impression, particularly during a robust cross-examination, that he was not easily over-awed.

Furthermore, the note which allegedly recorded that agreement was not written on that day because it lists actions or matters which had not arisen by that date.

The central plank of the Defendant’s case on approval was the so-called daybooks. However, these daybooks – the tumble dryer of information – could not be relied upon because they could not be reliably used as a source document. Not even the Defendant could understand what they recorded or when these records were produced. The Defendant’s failure to produce a written brief was a serious breach of duty which went to the root of the difficulties which he and the Claimants encountered. What was also an important failure was his failure to record the design changes from the sleek modern design for the cinema box illustrated in the 3-D picture he commissioned to the wonky industrial design eventually produced to the Claimants for their approval, albeit only after it had been largely designed and constructed.

The short answer to this woeful attempt at explaining how the design changed from “sleek modern” to “wonky industrial” is that the Claimants were clearly shocked by what was built and did not like what was built because none of these matters were envisaged or were shown on the concept drawing and 3-D mock ups, which existed when the building control notice was sent in. They were not discussed with the Claimants nor explained to the Claimants nor approved by the Claimants. On these matters, I accept the clear consistent evidence of the Claimants.

The Defendant failed :

The Defendant’s Written Opening took the bold position that what the Claimants say in respect of these matters is not credible (see paragraph 68.6 of the Defendants Written Opening which stated:

“68 However, it is clear that the Claimants agreed to the as-built design of the cinema box which included six legs.

68.1

The cinema had been designed initially to be supported by four columns and this was the design included in the design concept drawings discussed with the Claimants in late 2014 and early 2015 (Footnote: ⁶)

68.2

However, the Claimants wanted the cinema to be bigger and after it was re-resized it was necessary for it to be supported by six rather than four columns. These structural design drawings were prepared by Malishev Engineering; Ridlands had sub-contracted the work to Malishev. The Defendant and Ridlands prepared a “soft” programme based on six columns to present to the Claimants on 17 March 2015.

68.3

At a meeting at the Property on 17 March 2015 attended by Ms Goldie, the Defendant and Ridlands, Ms Goldie agreed to six columns and their location; at the meeting the Defendant and Ridlands paced out where the columns would be situated. The Defendant made a note of the meeting in his daybook.”

68.4

At a meeting at the Property attended by Mr Freeborn and Ridlands on 19 March 2015 Mr Freeborn confirmed his agreement to the columns and requested that they be pushed as far as possible to the existing wall. The Defendant made a note of the meeting in his daybook.

68.5

Drawings which showed six columns and their location were emailed by the Defendant to Mr Freeborn on 20 March 2015.

68.6

The Claimants were heavily involved in the project, took a keen interest in its design and it was being built at their home. It is not credible for them to suggest that they did not know that six columns were being installed and it is telling that the Claimants made no contemporaneous complaint that there were six rather than four columns.

68.7

The design intent (i.e. the steel/glass aesthetic) was frequently discussed by the Defendant with the Claimants and Ms Goldie in particular. The Defendant created a Pinterest board with various images and the Claimants agreed to the aesthetic.”

However, the Defendant’s case in respect of these matters was argued and pursued by reference to particular meetings based upon the Defendant’s daybooks. These notebooks were not seen by anyone other than the Defendant at the time. They are confused as to dates and order. The notes were in the Defendant’s own words a “tumble-dryer of information”. As the Claimants contend in their Written Closing, on close examination this case gradually disintegrated.

The Written Closing of the Claimants suggests that:

“One could multiply these examples, but in truth the only meeting which the Defendant continued to say was a meeting at which 6 columns were discussed and agreed was the meeting on 17^th March. There are insuperable problems with that theory, apart from the problem that Ms Goldie denies that she was present while 6 columns were marked out in magic marker for her benefit [day 1, page 53]:

(a)

the note does not show 6 columns at all. It shows 10, because the columns near the side walls were at that time contemplated as pairs of columns a few feet apart. So we are asked to believe that after objecting to columns she agreed not to 6 columns abut to 10 Q/6869-70, or that the marking out was of 6 columns though 10 are shown on the sketch [day 3, page 40, lines 28-43 line 27]

(b)

the number of columns was still 10, and changed to 6 later on, so it was too early to discuss the final form of the columns;

(c)

there is no email confirming any discussion of columns with Ms Goldie;

(d)

The position and placing of the columns was still in flux for some time later, because the pile positions had to be discussed. Although the intention might have been to put them close to the footings, the precise position of the piles and columns could not be marked out on 17 March.”

With regard to the spiders, there was no agreed brief for visible spider bolts. Reliance on random photographs on the pinterest board does not establish that what the Claimants contend are unsightly were ever approved by them. They were not shown on the concept drawings sent for building contract. They were never discussed, explained or approved.

Similarly, the Claimants on the basis of the concept drawings were expecting a glass box not a wooden box with glass panels. No drawing was sent to the Claimants which showed the final appearance of the cinema. The concept of a wooden box was not sent to the Claimants and was not shown on any drawings until the 800 series drawings.

Those 800 series were alleged in the pleadings as having been emailed and posted to the Claimants on the 9^th May 2016. The email referred to does not appear to exist whether dated the 8^th or 9^th May. There has been no proof of postage whether they were

The Defendant’s case at trial switched to a meeting not on the 9^th May but on the 8^th May. This date was latched on to because of a date on one page of the Defendant’s notes. The Second Claimant denies any meeting on the 8^th to review drawings and the emails on the 8^th May do not mention a drawing review or, indeed, any meeting on that date. I accept the Second Defendant’s evidence that no such meeting took place on the 8^th May 2016.

The mechanical trapdoor and the staircase up to the cinema were late revisions to the design. I accept that the Claimants agreed to the design of the stairs on the 31^st August 2015 because the contemporaneous documents showed that the Claimants agreed to the design of the stairs on the 31^st August 2015.

With regard to the trapdoor, this was a late development of the design and I consider that the Claimants’ clear recollection that no such approval was given to be correct. It was a clumsy, dangerous and incomplete design in any event.

My conclusions are, based on the evidence I have read and heard, that the brief was not only not properly prepared and documented or agreed orally or in writing and that the features of the brief, which the Claimants so dislike, were not, in fact, approved by them. What they saw I accept their evidence when they state it shocked them, for what they saw was not what they had anticipated or had been illustrated in the 3D mock-ups provided to them as set out in Appendix 2 annexed hereto.

I accept the evidence and submissions of the Defendant that:

However, the Claimants’ complaints at trial were more nuanced than a case based on tolerances. The Claimants contend that the sleek modern design required a special design to remove or to adjust for the inevitable distortions in the structure. The complaint is not that the structure was out of tolerance but that normal tolerances should not have been relied upon. This is not a case that appears to have been clearly pleaded. However, it is part of the sleek modern/wonky industrial design issue which maintains that what was provided was not what had been suggested by the Defendant. The sleek modern design could not be achieved by glass panels not accurately being centred on the beams. I consider this misalignment was a defect. It was noticeable and once noticed was a cause of significant irritation for the Claimants. More importantly, it was part of the industrial wonky design they did not expect, did not approve and did not like. I consider that any competent architect should have ensured that the sleek modern design was provided, but if it could not be provided should have sought approval to redesign and have built what was designed and built. No attempt was made to explain

To change the lights behind the glass panels would require 3 or 4 strong men to remove a 150Kg glass panel. This is a design which was not practical or sensible. To say the Claimants should rely upon the light bulbs manufacturer’s guarantees is not sufficient. This was a bad design which no competent architect should have produced.

The clash was embarrassing for the Defendant who was responsible, as part of his architectural and project management duties, for the co-ordination between the contractors, plasterers, builders of the box and electricians. However, I agree with the Defendant that this was unfinished work and the issue could have been, and still could be, resolved. This was a defect which could have been designed away by replacing the plasterboard with something thinner.

It is common ground that there is no secondary means of escape. It is also common ground that the cinema room needed to satisfy Requirement B1, which is contained in Approved Document B and which provides:

“Means of warning and escape

B1 The building shall be designed and constructed so that there are appropriate provisions for the early warning of fire and appropriate means of escape in case of fire from the building to a place of safety outside the building capable of being safely and effectively used at all material times.”

Requirement B1 is followed by guidance. Mr Perry suggested that the guidance was mandatory but this is incorrect and Mr Clay appeared to accept that when crossexamining Mr Salisbury.

Mr Marcal’s concept, explained on Day 4 of the Trial was that the motor operating the trap door would be linked to the fire alarm system which would fail safe open in the event the alarm was activated:

“as soon as the roof door was conceived, the intention was that the entire roof door is operable in the event of a fire. That is the premise of the fire escape strategy – that the entire roof door operates in the event of a fire. It’s done – it does that by means of a battery back-up, whereby if the fire alarm to the general house or the pool room is activated, either by a person or a smoke detector, there is a link from the fire alarm system to the winch motor which tells the winch motor to open the trapdoor in its entirety in the event of a fire. The escape hatch – the inner hatch that is located in the trapdoor is there – is a means of assuring the occupants that there is another means of escape. It’s like a third – it’s like an additional safety factor, so the roof door is intended to be operable in the event of a fire, which means you can walk down the stairs freely.”

He also thought Building Control might have approved the design because of the proximity of the bottom of the stairs and the final exit door.

Ian Salisbury at Day 5 of the Trial stated:

“The advice that’s given in the approved document is that the secondary means of escape through an aperture to the place of safety has to be of a minimum size of 450 millimetres by 450 millimetres. In other words, so large that someone reasonably may be expected to obtain passage through it, in other words to pass through it. It is not stated that there should be an escape stair from every inner room. If it – if that were the case then you’d go to New Court or wherever it is that I’ve been going to see counsel, you would have a myriad of escape staircases coming down from the inner rooms and I was in one yesterday evening. From all the upstairs rooms which are inner rooms and this just does not happen. So, I don’t agree with Mr Perry that there is a need under the building regulations for a protective staircase going down and I think that the reason that I say that this is sufficient, adequate, what might be expected and not in the same words as you’re describing but reasonable for an architect to provide, that the occasion of a fire is sufficiently rare that the necessity for building that staircase is unnecessary because if it happens you will jump from a window and you will survive.”

Mr Farrow and Mr Wood estimated in the Joint Statement that adding a simple emergency exit would have cost between £2,900 and £3,500 at 2015 price levels assuming the works were carried out with the original works but would cost £8,100 to £9,000 at 2018 price levels.

Whilst neither Expert expressly stated that the Defendant’s unapproved design was negligent, both agree that a secondary escape was necessary. I consider that even if the Defendant’s design was not approved or was negligent it could be easily remedied by a discrete aperture at modest cost. An external staircase, whilst not strictly necessary in my opinion, could also have been added if planning permission could have been obtained, at modest cost. On balance, I consider that planning permission, if sought, would, on the balance of probabilities, have been obtained. The absence of a means of escape was a defect but could have been remodelled at a modest cost and the Defendant did not act negligently in regard to this matter.

A quite disproportionate amount of time was spent on the alleged defect. Having heard the evidence of the Experts and the Defendant, I am satisfied that had not the project been stopped, a fully functioning and safe trap door would have been designed and would have been installed. Whether a manual winch or a battery back-up was the safer option, I prefer the evidence of Ian Salisbury who stated that in his professional opinion a battery back-up was, in fact, safer than a manual override. However, these complaints by the Claimants are of an incomplete design not a defective design.

The short answer to this complaint is that Mr Williams (the Director of Olive, which supplied the audio-visual equipment) explained in his Witness Statement that the room provided sufficient isolation from external light and to provide an appropriate environment for the audio-visual system.

If that gap had to be plugged, again that would have involved a trivial amount of work. I do not consider that gap was a defect or was caused by any negligent design from the Defendant.

On this issue the Experts agree that additional balustrading is necessary but that can be added for minimal cost. Mr Farrow and Mr Wood agree that adding a balustrade to the rear of the cinema would have cost between £4,000 to £5,000 at 2015 price levels but will cost £4,700 to £5,700 at 2018 price levels.

This defect is a defect because the additional balustrading needs to be added to make this element of the works safe. It should have been included in the Defendant’s design for these works. I consider that these complaints by the Claimants are of an incomplete design not a defective design.

This alleged defect was not put to either the Defendant or Ian Salisbury. I do not consider the step to be an unsafe hazard. I do not consider that case that the Defendant inclusion of the step was negligent has been established.

This allegation reflects incomplete rather than defective work. It is a minor complaint at best. Mr Perry agreed that a balustrade at the foot of the stairs could have been added at modest cost.

I consider that the misalignment of the glass was a defect but more significantly was part of the overall complaint of the Claimants that no reasonably competent architect would have designed and would have allowed to be constructed the wonky industrial look cinema without the clear written approval of the clients particularly when they were reasonably anticipating a sleek modern look for this new cinema.

The remainder of the alleged defects were, for the reasons explained above, items of incomplete work or work which, if defective, was not caused by acts or omissions of the Defendant, which fell below the standard of the reasonably competent architect and project manager and, even if they did, could have been remedied or could have been completed at a very modest additional cost.

From the List of Issues, it appears that the Claimants no longer criticises the Defendant in respect of the following matters that:

In respect of these issues, I generally agree with the submissions of the Defendant. The Defendant, I find, was asked to hibernate not to waterproof the pool and, in his role as architect/project manager, co-ordinated/managed the following:

I do not consider that the Defendant acted negligently in respect of the works to hibernate the pool for the following reasons:

All in all, I agree with Ian Salisbury’s clearly expressed view that in respect of these aspects of the project, the Defendant discharged any and all obligations he owed to the Claimants.

It is common ground that there was further water ingress after August 2015.

There was much confusion regarding these complaints. Mr Perry’s Report focussed on holes being made in the side of the pool not the bottom of the pool. He rightly conceded during his oral evidence that if, as Connect maintain, the holes in the side of the pool were constructed using waterproof fixings, his complaints fall away. Furthermore, Mr Perry was unclear whether the pool continues to leak.

Ian Salisbury had a rather complicated theory that when the pool was uncovered and left uncovered after the initial drying out, any water ingress may have been balanced by evaporation within the thickness of the concrete. However, when the pool was covered and closed, the humidity of the chamber would have reached near saturation point which would have reduced evaporation allowing water to reach the surface and leak.

During the course of the oral evidence, it became clearer that the Claimants’ case that the water ingress was caused by bad workmanship was based upon Mr Bayford’s evidence that Connect drilling fixing rods into the bottom of the pool. However, as the Defendant observed in his Written Closing Submissions:

“First it is not clear that bolts were drilled into the bottom of the pool. After being taken to his email dated 30 November 2016 Mr Marcal thought that maybe one bolt had been connected to the bottom of the pool but he was not sure. However,

1

Mr McDermott, of Connect, gave evidence that there was no bolt connections to the bottom of the pool;

2

Mr McDermott was unsure whether the picture at J/116/4475 or

J/116/4479 showed knots in the wood or bolts but gave evidence that [if] it was a metal fixing it would have been used to screw to [two] bits of timber together and would not have gone through the pool surface;

3

There are no pictures of any holes in the pool after JBR removed the Connect structure and the experts did not inspect the pool before JBR installed the new structure.

Secondly, even if one or more bolts were drilled into the bottom of the pool by Connect (or someone else) neither expert expressed the view that any water ingress was caused or continues to be caused by a fixing inserted into the bottom of the pool.”

On the balance of probabilities, I find that the Claimants have not established that bolts were drilled into the bottom of the pool or that any such drilling is the cause of the water

The Claimants in their Written Closings concede that the Defendant was entitled to treat these companies as well-qualified “to keep a swimming pool going or to hibernate it”. I consider and so find that it is wrong to criticise the Defendant with regard to his obligations in relation to the hibernation of the swimming pool. There is no evidence that the Defendant knew or should have know the pool was leaking. The Claimants have not established any clear or convincing case as to why the pool leaked or, indeed, whether it is still leaking. When the issue of a leak was raised in October 2015 the Defendant advanced a number of proposals to remedy the problem. No criticism was made of those proposals by the Claimants. However the Claimants did not pursue those proposals and instead instructed JBR to carry out further works. I am not satisfied that the Defendant acted negligently in the performance of his duties regarding the hibernation of the pool so that the swimming pool room could be turned into a function room.

Mr McDermott’s evidence which I accept and, indeed, was not challenged, was that fixings used at the side of the pool were covered in a waterproof resin and that Connect were not to put any fixings in the base of the pool. If any fixings were put into the base of the pool I consider that the Defendant cannot be at fault in failing to identify any such fixings. It is not good enough for the Claimants to submit that:

The Claimants have not identified any poor workmanship for which Connect are responsible.

The Defendant did make detailed proposals contained in an email to the First Claimant dated the 30^th October 2015. There has been no criticism of these proposals. The Claimants simply chose to instruct JBR, who were general building contractors rather than swimming pool specialists, to carry out all necessary works.

JBR, on the Claimants’ instructions : (i) removed the timber support installed by Connect; (ii) removed the pump installed by APS; (iii) applied Desmopol (a liquid membrane) to the surface of the pool; and (iv) installed a new support system made of steels and timber frames. The steel frames cut into the existing pool.

These works, unfortunately, have not worked. I accept Ian Salisbury’s evidence that the Desmopol lining has failed under pressure. Mr Perry has expressed no clear view on these works. However, in circumstances where the Claimants:

Unfortunately, the Experts are not clear on either what is causing the further leaks or what remedial action is required. The Defendant cannot be held responsible for the failure of the waterproofing works carried out by JBR and, as such, cannot be held responsible for the cost of remedying those failed works. With regard to the introduction of a humidifier, that was something recommended by the Defendant in 2015 but it was the Claimants who decided not to introduce one. On any view, the Defendant cannot be held responsible for the costs of introducing a humidifier at 2019 prices or at all.

It is clear from the documents, which were put to him and accepted, that the Defendant procured the window work, and specified what was to be done.

The Defendant also accepts that he inspected the window casement work and signed them off.

Again, this is clear from the documents and the Defendant agreed that the inspected the window casements and signed them off.

The Defendant relies on the window survey carried out by Mr Salisbury. The Claimants rely on the window survey carried out by Mr Perry’s colleague, Tom Findlay, and a subsequent inspection by Mr Perry. The Defendants say Mr Salisbury’s evidence should be accepted. Neither expert was cross-examined in any detail on these matters. However, on these matters I prefer the evidence of Ian Salisbury. His window survey is contained in his Supplemental Report. He inspected the windows on an October day when the wind was a South Force 4 on the Beaufort Scale and he did not notice draughts when the windows were shut. Compared to Tom Findlay’s investigation, Ian Salisbury’s seemed more thorough. For example neither Tom Findlay nor Mr Perry recorded that the wind conditions when they inspected the windows. Tom Findlay was not called as a witness.

Mr Salisbury did not notice draughts when the windows were shut. In any event any issues with the frames can be remedied. Mr Farrow whose estimate I accept as being reasonable suggests that they can be remedied for £3,000.

Having read and heard all the evidence on these issues, I am satisfied that the Defendant discharged his obligations in respect of the window works competently. The Defendant arranged for Sash Window Conservation to survey the windows. The Defendant arranged for quotes from Sash Window Conservation. He inspected the replacement casements with the Second Claimant. When the Second Claimant complained of draughts, he arranged for Mr Turbidy to return and fix further seals. The Defendant also ensured that DKD returned to carry out the work on a number of occasions. I also accept the contention made by Mr Salisbury that Mr Wood in his estimate of the cost of repair makes no allowance for wear and tear or damage in use. Looking at the written evidence and the very limited cross-examination of the Experts on these window issues, I am clear that no case that the Defendant acted negligently in respect of these matters has been made out.

I accept the evidence of the Defendant on these issues. The Defendant and the Claimants agreed that they would generally work with contractors recommended by the Defendant rather than go out to tender. The Defendant explains this in his First and Second Witness Statements. The Claimants, particularly the First Claimant, were financially sophisticated and if unsatisfied by the procurement choices made by the Defendant. I would have expected contemporaneous complaints.

External decorations and WC hire. This is explained by the Defendant in his Second Witness Statement.

The Defendant and the Claimants agreed that he would use recommended contractors and would not have to tender all of the works. For a project of this nature that seems sensible and appropriate in any event. The Claimants would not want to work with the cheapest but with the best or most highly recommended.

No. The agreement between the Experts should be respected and implemented. In assessing the amount of any such saving the 10 to 15% “rule of thumb” agreed by the Expert quantity surveyors should not be reduced further to take account of costs of tendering.

I accept the evidence of Mr Farrow that there remains sufficient wood in good enough condition to install the flooring without there being any detriment to the Claimants. As Mr Salisbury reported, he only saw two physically damaged boards and he considered they could be accommodated within the normal wastage allowance.

The Defendant accepts that he ordered the floor. He says that he did so to avoid a price rise which is a reasonable explanation and one that I accept.

No. The Defendant acted reasonably in expecting Hutchison VA Flooring, to store the wood properly and without causing any damage to the flooring.

I consider this complaint to be not only trivial but unjustified. It is clear that the skylights had exceeded their design life and something needed to be done to them. The issue was replace or remove. If removed, additional work to the roof would be necessary.

Replacing the skylights meant that they would be there if the swimming pool was reinstated.

The Claimants claim the 50% of the value of the two skylights, ie. £3,060. I do not consider that the Defendant is liable for those costs on any view. His decision to replace rather than remove was not only a reasonable decision but I think was the appropriate decision.

Delay issues : adjourned at PTR 129. This was not pursued at this trial.

The Claimants have not pursued the pleaded claims in respect of the Pool House works. These are set out at paragraphs 52 to 60 of the Amended Particulars of Claim and range from allegations that a thermostat was installed in the wrong place to “shoddy” electrical installation.

I dismiss these allegations.

I accept the Defendant’s summary of this section of the Claimants’ claim as set out in their Closing Written Submissions.

In order for the Claimants to recover any damages from Mr Marcal they must, of course, establish that not only was Mr Marcal negligent but that his negligence caused them a loss and that the loss fell within the scope of Mr Marcal’s duty.

The Claimants’ primary case is that they are entitled to demolish the cinema and either (i) re-instate the pool (£595,000) or (ii) hibernate the pool properly (£163,000). They, therefore, seek the costs of carrying out either option plus the “wasted costs” they have spent on the cinema room to date (£465,625) (Footnote: ⁷).

In the alternative, the Claimants seek:

In addition, the Claimants seek:

Taking each issue in turn:

The Defendant contends that this is not a question the Court should consider. It is submitted that the issues the Court should consider are:

In the light of my preceding findings with regard to whether the Claimants knew let alone agreed to the design of the cinema room, these issues can be dealt with shortly. However, I agree with the Defendant that I should approach this issue applying the questions raised by the Defendant in his Written Closing.

The Claimants did not agree to the design of the cinema room. The Claimants not knowing and not agreeing to the design of the cinema room as implemented, and the change from sleek modern design to industrial wonky design, was all as a result of the Defendant’s negligence in having no written brief and no consultation with the Claimants as that brief changed so dramatically. None of those changes were shared with the Claimants in writing or otherwise. They were entitled to be outraged by what they saw had been produced at great cost, which was not what they were expecting.

The Claimants have decided to demolish the cinema room. I consider such a decision to be a reasonable decision. Whilst I accept that the ordinary measure of damage when an architect has acted negligently is the cost of rectification, I do not consider that this particular ugly duckling can be turned into a swan. What was provided is so different to from what the Claimants reasonably expected that I consider demolishing this cinema is the reasonable course going forward.

Whilst I have found that some of the alleged defects in the cinema are items of incomplete works or were not caused by the negligence of the Defendant, I do not consider those defects themselves justify demolition rather than repair.

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.

The appearance of the cinema and who likes what are all issues which are somewhat subjective. There may be people who prefer the industrial wonky design to the sleek modern design. However, that is why it was essential not only to agree the brief but also to ensure that the Claimants had a clear understanding as to what would be provided. The Claimants were clear in their reaction and rejection of what was provided in their oral evidence. This is supported by the Second Claimant’s reaction in February 2016 noted privately to her Husband:

“We were promised precision bespoke and high end. This looks cheap and thrown together.” (See K/131/5071)

The defects with the industrial wonky design are significant and would be expensive to remedy, with or without the external staircase, which on balance I do not consider necessary. However, Mr Perry’s figures as submitted by the Claimants’ Closing Submissions for the necessary remedial works total:

I consider that these are reasonable estimates of what would be required. None of these costs begin to approach the aesthetic difficulties and unacceptable features which the Claimants rightly complain about. I do not consider that this cinema can be transformed into the design the Claimants were expecting without demolition or at a cost which would be well beyond reasonable. I note that the Defendant’s case is silent as to what to do and what it would cost to transform the wonky industrial look into a sleek modern look. The Defendant’s case is not much more than the Claimants will have to get used to what he has produced for them.

On the basis of the pleadings and Ian Salisbury’s evidence, the Claimants are effectively being told that they should:

I consider and so find that the as-built cinema is so far removed from what the Claimants reasonably expected and initially approved, that the only option is to demolish what was built.

The cinema room is to be demolished. The Claimants have already agreed that that is what will happen. The costs spent on it were wasted. The sums wasted was as follows:

The figure of £465,625.47 is an agreed figure. The three adjustments recommended by the Defendant in his Written Closing Submissions are, I consider, appropriate and correct. During the course of the trial, some time was taken up with disputes as to whether the Claimants were promised an architectural jewel or a cinema with a wow factor. I make no findings as to what precisely was said because I consider that any architect authorised to spend sums in excess of £460,000 on a glass box would be expected to produce a design not only in accordance with his clients’ expectations but also something “bespoke” and “high end”. That is not what the Claimants reasonably thought had been provided. What was provided had not been discussed with them and had not been approved by them. I dismiss the Defendant’s contention that the Claimants simply declined to complete the building. What was provided had not been discussed with the Claimants nor explained to the Claimants nor approved by the Claimants.

The Claimants’ pleaded case is for the sum of £595,000:

Mr Wood has corrected the total to £525,000 which he breaks down as follows:

With regard to these figures, I agree with Mr Wood when he explains that the sum of £50,000 relates to the main house and not the cinema room. However, I prefer the approach of Mr Wood to Mr Farrow. Mr Wood’s explanation of the differences between the two Experts is set out in Mr Wood’s Appendix 3:

“I have included a comparison of the budgets at Appendix C. Major differences are due to the following:

High quality finishes to the pool house as existed before the works commenced;

Provision of a new integrated spa to replace the unit removed as part of the Works;

Professional fees to help ensure that the design and works are properly designed and constructed;

Inflation on-costs. My estimate was based on costs at 2015 price levels.”

I consider that in respect of each of these differences of approach, Mr Wood’s evidence should be preferred as being more reasonable:

The Claimants’ pleaded case is for the sum of £165,500:

However:

This should be answered “Yes”. It should run from April 2015, the date the Claimants began paying Ridlands. This is a discretionary matter, but these costs were wasted and interest should run on those costs which were wasted. I will await a calculation of interest which I trust can be agreed.

This is a case for which damages are appropriate. The Claimants have not suffered physical inconvenience (on their own evidence they rarely went into the pool house) but the retainer was one to provide peace of mind, pleasure or freedom from discomfort. Instead of enjoying a cinema and function room which they would show off to their friends and family, the whole project was an almost complete failure, preventing the Claimants from having the opportunity to entertain their friends and family in their new function room and private cinema. I would assess these general damages at £5,000 being reasonable in the circumstances outlined above.

No, for the reasons set out above. The decision to demolish is a reasonable choice.

As set out above, the Defendant’s pleaded case as to the steps which should have been taken would be insufficient to mitigate the Claimants’ loss. It would not begin to deal with the aesthetic problem. It would cause further difficulties. The Claimants’ proposals, in particular Option B, but not option A are a reasonable and proportionate response to the problems and difficulties they face because of the Defendant’s negligent discharge of his obligations which he owed them.

This issue does not arise because the Claimants are not required to mitigate their loss by completing and keeping the cinema. That would be an inappropriate remedy in the circumstances and, in any event, the Defendant and his advisers have not begun to provide figures for completing the cinema so that it reasonably matched the Claimants’ reasonable aesthetic vision in what they thought was going to be provided. The Claimants’ solution will involve the introduction of less new money in that the cinema can be demolished quickly and cheaply and the function room can be reinstated quickly and cheaply.

No, as I have found the Defendant was not obliged to tender all works. The Claimants were not only content but agreed to take advantage of the contractors recommended by the Defendant.

No. There is sufficient Dinesen flooring to complete the flooring. Mr Farrow’s analysis of this is set out in his Supplemental Report at paragraphs 3.1 to 3.4. Furthermore, the Claimants had an opportunity to replace damaged boards at no cost but did not take this up at the time.

No. The Defendant discharged his duties in respect of hibernating the pool. The works carried out by JBR were ineffective and were chosen by the Claimants, not the Defendant and whose proposals were rejected by the Claimants.

No, as set out above, the works carried out by JBR were chosen by the Claimants and not the Defendant whose proposals were rejected by the Claimants.

The Claimant, in light of my findings, are entitled to demolish the cinema at the Defendant’s expense so this head of recovery does not arise.

The Claimants, in light of my findings, are entitled to demolish the cinema at the

I am informed by the Claimants’ Written Closing Submissions that each of the figure here are referring to the solution of Mr Perry and the costing of Mr Wood. Given that the Claimants are fully entitled to demolish the cinema and reinstate the function room as a result of the negligence of the Defendant, these schemes and figures are a somewhat artificial exercise. However, in respect of all of these works, they are examples of incomplete rather than negligent design and I do not consider any of these works were caused by the alleged negligence of the Defendant.

In light of this Judgment, I would invite the parties to agree an appropriate order. Unless a Cost Order can be agreed, I will hear the parties on the question of costs.