QUEENS BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
MICHAEL PHILLIPS ARCHITECTS LIMITED
Claimant/Part 20 Defendant
-and-
(1) CORNELL CLARK RIKLIN
AND
(2) SUSAN OGLESBY RIKLIN
Defendants/Part 20 Claimants
____________________
Crown Copyright ©
The Claim
Background
"With regard to our fees, bearing in mind that this is an existing building and Grade II listed as well, it is quite difficult to anticipate the exact scope of works that we will be required to undertake. No one knows what we will uncover at the strip out phase or, to what extent the local conservation lobby will intervene and cause additional works and/or delay.
To this effect, I suggest we proceed on in the interim on a "time expended" see basis in accordance with our attached schedule of rates. When final decisions have been made about the exact scope of works you require and, final specs of finishes, fixtures and fittings as well as establishing an known entity from the conservation officer and, the planners too then, we can convert our time-charge fee to a lump sum fee that will be all encompassing, absorbing the time charges to that stage."
"For your information I advise that I have a full and intensively comprehensive file of documentation, including the confirmation letter to your client's wife (who engaged my company on their joint behalf). I have no doubt that your immediate client has never seen this letter (as evidenced by your client and his wife's perpetual and continued joint miscommunication throughout the entire history of their project which is completely recorded and commented on by me in my project dossier). I am not in any position nor, is my company required, to deliver this or any other document to you. You are able to get this and any other document directly from your client. They were delivered to him and his wife (our joint "co clients") and recorded electronically or otherwise by my company with both dates and times of delivery." (Emphasis Given)
"I sent an email recording my instructions and there is an email in response from Mrs Riklin confirming that I should proceed with the work".
The scope of the work;
The fee or method of calculating it;
The allocation of responsibilities;
Any limitation of responsibilities;
The provisions of termination;
Any special provisions for dispute resolution".
"those threats are of such a nature that we have advised our client to report the matter to the police".
The issues
The Claimants in their email of the 14th November 2007 mentioned the likely fee costs would be based on ".. year 2002 RIBA recommended scale of fees and discounted to suit the scale and scope of works undertaken".
"…In shouldering full service functions an architect's work has to include, in any way that is reasonable and efficient; preparing the drawings, specification and other terms of the building contract and arranging signatures; administering the building contract during work on site; visiting the site at intervals to inspect the progress and quality of work; certifying payment to the contractor and sub-contractors when he is satisfied; making periodic financial reports to the client including any cost variation. (This is not an exhaustive list). It is incumbent on an architect to make clear, particularly with an inexperienced client, that in order for the architect to remain responsible control all work instructions have to be channelled through him, and no payments to contractors are to be made without his written certifications which will designate precise payment amounts".
"… didn't perform one of the most essential parts of an architects services; the valuation of the works and the certification of payments. The payment certification process is the main means by which architects monitor builder's progress. Through it the architect keeps abreast of work, controls construction expenditure and is able to designate and protect tranches of payment that are to be handed down to subcontractors. In use, the standard form of architect certificates makes those things clear and easy, and provides effective feedback to the client about the budget of progress. As the Riklins were inexperienced clients (the Claimant) owed them an extra duty of care on job progress and payments, they were never advised by MPA not to pay any builders unless an architect's certificate had been issued".
"the result of MPA's failure to provide certification of payments was to put themselves outside a position of effective cost control. I consider this avoidance of responsibility and control by MPA to be troubling, and in this instance my professional opinion can fairly be brought into play. In my view no reasonably competent architect providing the traditional architect service ought to leave his client to fend for themselves in valuation and the certification of payments. It is a prime consideration in my downgrading the value of their services when I have considered a reasonable fee in section 10 of this report.
"… However I can say that the first principle of an architect's duty of care is to protect his client from risk. No reasonably competent architect should recommend a contractor that he knows has financial difficulties without warning his client about it, making sure that works are not paid for in advance, and advising about forms of protection such as performance."
"In the absence of a formal contract, MPAL did not have the sort of normal tools and mechanisms to hand, to properly administer the job. This appears to me to be a failing on the part of MPAL in that they should either insisted on having a contract, or advised the client and builder on alternative forms of contract for procuring the works if the JCT was not forthcoming despite being the basis of tenders."
"The letter of intent which I will draft will be based on the agreement reached two weeks ago and thus serve as the precursor to a formal contract. Much better then, if a formal contract takes all the current site discoveries into account, we then don't have to worry about revisiting this at a later date with all the time, expense and issues and extras this could throw up".
"The architectural renovation carried out at St Marys Lodge by MPA has some design merit and historical sensitivity."
The Construction Costs
"Forget the kitchen Susie (Mrs Riklin) has a specialist working on this…"
Interior Design Fee Claim
The Counter Claim
Wood Burning Fire
Architraves and Skirtings
Georgian Stair Boards
Floorboards
Utility Room
The Flat Roofs
Tiling
Glass Balustrades/ Walling
Planning Appeals
The Balcony Modifications
The Damage to the Car
"We understand that either you may have instructed debt collectors to attempt to recover monies from our clients, or otherwise you have assigned or factored any alleged right to recover monies from our client to a third party. Please provide their details. Our client has been contacted both in Lymington and in London by that third party and various threats have been made against our client and his family in an attempt to recover monies from our client. Those threats are of such a nature that we have advised our client to report the matter to the police for investigation."
"I must confess at the time I was very concerned to think anyone should be acting illegally on my behalf, and I didn't want to commit anything to paper that would incriminate me (day 1 page 20 line 12)."
Question
"And you felt reassured by the fact the matter had been referred to the police? Why did you not at that stage when he phoned you say "cut this agency agreement; this matter has gone too far?"
Answer
"Because I did want to collect the debt, but I also was, I am going to use the word, reassured that they had not done anything to break the law".
Question
"Police do not get involved unless there's a suspected criminal activity Mr Phillips, they are not a social working outfit that come round and help people with their problems they get involved when there is criminal activity".
Answer
"I am aware of that, Miss Rawley and I felt that when they had investigated the matter that the cessation of collection services if they were breaking the law would be taken out of my hands".
"Your letters of 28th May and today received in this office by facsimile, prevail. This company has nothing whatsoever to reply to you about. We have both advised and warned your client of our likely actions if he maintains his stance as verbally presented to me in front of a witness when we met in his second home in Lymington, which we designed and then coordinate the construction, in good faith.
My emails to your clients are test to this and the collection process now initiated has absolutely no chance of recall. I have sold the debt from your client to my company to another and I have no further comment to make to you in this regard. You may take any other action that you or your client desires… This matter now rests with a registered debt collection agency, as warned by me in my email to your client on 10th March and any further communications should be with them. You are at liberty to ascertain just who they are by any and or means at your disposal, my company will not be delivering this or any information to you from this point forward."
"Are you going to pay Michael Phillips now? You will pay."
Conclusions
The Claim
The Claimant is entitled to recover the following fees
9% of £405,451 | £36,486 |
Landscaping services | £1,500 |
Interior design | £2,500 |
Expenses | £1,561 |
Total | £42,047 |
VAT at 15% | £6,306 |
Counter Claim
The Defendants are entitled to recover from the Claimant the following sums in respect of their counterclaim
Chimney | £4,000 |
Architraves etc | £9,177 |
Stair boards | £3,000 |
Floor boards | £6575 |
Utility room | £3,000 |
Roofing | £3,000 |
Tiling | £250 |
Glass balustrading | £1,932 |
Walling | £3,777 |
Planning appeal | £5,192 |
Balcony modifications | £3,512 |
Maserati damage | £15,465.98 |
Total | £58,880.98 |
GH016589/CE