Architect receives 12 month suspension over "ugly duckling" home cinema design

06 August 2021. Published by Emma Wherry, Senior Associate and Sarah O'Callaghan, Senior Associate and Emrys Moore, Associate

Daniel Marcal, an internationally renowned and award winning architect, was retained by Phillip Freeborn, former head of operations at Barclays Capital and his wife Christina Goldie to design an "architectural jewel" of a home cinema, in their £7 million London home. However, as Mr Freeborn told the High Court in his claim against Mr Marcal, he ended up with a "wonky" "expensive white elephant", rather than the sleek modernist cube floating over his pool that he had wanted.

The key dispute between the parties centred around whether Mr Marcal had redesigned the cinema box without telling Mr Freeborn and Ms Goldie, and arranged for the construction of a cinema box which they had not approved. Martin Bowdery QC, sitting as a High Court Judge, made a number of damning criticisms of Mr Marcal in his judgment dated 27 February 2019 including that he had arranged for the construction of a cinema box not approved by Mr Freeborn. The judge went on to comment that he considered it bad practice that the initial brief and any design development was not recorded in writing, and described his daybooks which recorded his work as a "tumble dryer of misinformation". This led to insufficient clarity for both the client and the architect regarding what had been agreed. Mr Freeborn and Ms Goldie were awarded damages in excess of £500,000. Mr Marcal had inadequate professional indemnity insurance to meet this damages award and was forced to declare bankruptcy.

Whilst the judgment is perhaps unremarkable as far as professional negligence claims go, what happened next is unusual. The judgment had publicly criticised not only the design of the home cinema, but Mr Marcal's professional conduct. The ARB became aware of this in March 2019, following which it wrote to Mr Marcal and then sought Mr Freeborn and Ms Goldie's cooperation in investigating those concerns. The Investigations Panel concluded that there was a case to answer in respect of those concerns, and referred the matter to the Professional Conduct Committee. 

The allegations against Mr Marcal were that he had failed to:

  1. Provide adequate terms of engagement;
  2. Provide an adequate brief (a) in accordance with the requirements of the client or (b) Building Regulations;
  3. Have adequate systems in place to regularly monitor and review the professional running of his practice and ongoing projects;
  4. Ensure that he held adequate and/or appropriate professional indemnity insurance;
  5. Avoid a conflict of interest, by soliciting money from potential suppliers without the knowledge or consent of his clients; and
  6. Act honestly and with integrity.

Mr Marcal challenged whether the PCC had jurisdiction to consider the above allegations, given that the ARB had approached Mr Freeborn and Ms Goldie, as opposed to a complaint being received. The PCC roundly rejected this assertion, pointing out that if information regarding potential criminal activity came to the attention of the police, there would be nothing to preclude them investigating the same. This was akin to such a situation and it therefore had jurisdiction to hear the case before it. 

The PCC heard evidence from Mr Freeborn and the Inquirer for the ARB and from Mr Marcal in his defence. It concluded that allegations 1,2 (b) 3 and 4 were proven on the facts. Whilst allegations 2(a), 5, and 6 were found not proven. The PCC concluded that the allegations proven were sufficiently serious to amount to Unacceptable Professional Conduct. 

When considering sanction, the ARB had particular regard for the fact that Mr Marcal's failings had resulted in a significant loss to Mr Freeborn and Ms Goldie; whilst the failings had occurred on a single project they were wide ranging; and there was limited evidence as to the steps that Mr Marcal would take to avoid similar occurrences in the future.  The PCC considered that a suspension order of 12 months was appropriate to mark the seriousness of the failings. It did not consider that an erasure order was warranted as it did not consider the behaviour of Mr Marcal to be incompatible with remaining a registered architect. 

The decision is a cautionary tale in many respects. The take home messages for architects in practice are as follows:

  • It reiterates the importance of issuing Terms of Engagement which comply with the requirements of the Code of Conduct and ensuring that the brief is properly and accurately recorded; 
  • It is of fundamental importance to have a system for managing a project and keeping a clear record of matters – this both avoids issues during the course of a project and will assist you in defending yourself if issues arise; 
  • It emphasises the need to seek appropriate advice from an appropriate expert regarding the level of insurance cover maintained – not only to avoid criticism from the ARB, but also to avoid the risk of having insufficient funds to meet any judgment debt;
  • Lastly, it cautions architects to be mindful of public criticism which may come to the attention of the ARB, in particular it is necessary to be mindful whether that judgment is likely to reveal any professional conduct issues which may catch the attention of the ARB. 

We anticipate that this will not be the last time that judicial criticism leaves an architect in a difficult situation with their regulator, and it is important to give this due consideration when defending any professional negligence claim. 

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