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Freebies for friends? Burgess v Lejonvarn revisited

The 2016 preliminary issue decision in Burgess v Lejonvarn (upheld on appeal in 2017) sparked much interest, holding as it did that an architect owed her friends a duty of care whilst providing services free of charge.  The recent decision by the TCC means the Claimant's attempts to recover have been in vain – whilst a duty may have been owed, it had not been breached.

Background facts

In 2012 Mr and Mrs Burgess (the "Claimants") decided to undertake landscaping work to their garden. They obtained a quotation of approximately £150,000 from a renowned landscaping company. Mrs Lejonvarn (the "Defendant") was an architect and friend to the Claimants.  She thought the landscaping work could be completed on a smaller budget.

The Defendant provided her services to the Claimants free of charge, she secured a contractor to complete the ground work and it was intended she would later provide detailed design work for a fee. However, the parties fell out over the quality and progress of the work on site, and the budget and, ultimately, the Claimants brought a claim against the Defendant.

Preliminary Issue

A trial on preliminary issue was held in 2016 and the judgment upheld on appeal in 2017.  

The preliminary issues included consideration of whether a contract had been concluded between the Claimants and the Defendant and whether the Defendant owed the Claimants a duty of care in tort.

The judge held that no contract had been concluded between the parties, but that the Defendant owed the Claimants a duty of care in the absence of a contract and even in circumstances where services were being provided free of charge between (former) friends.

The decision attracted plenty of interest, given that it opened up professionals to a claim in tort in what must be relatively common circumstances - where a professional gives friends "a freebie".

Trial Decision

Whilst the trial judge was bound by the Court of Appeal finding that the Defendant did owe a duty of care in tort to the Claimants, after a five-day trial he decided that:

1) The drawings produced by the Defendant were not detailed design drawings and had not been produced negligently;

2) The Defendant's inspections were adequate to review the validity of the contractor's applications for payment; she had not failed, negligently or in breach of duty, when inspecting the works for non-compliance; and

3) The Claimants' damages claim was weak and included many matters that the Defendant could not have been liable for, even if the decision on breach of duty had been different.

Comment

Whilst elements of this claim are based on unusual facts (the Defendant had worked for the Claimants on other projects and the Claimants had previously lent the Defendant and her husband a significant amount of money for a house purchase), it remains an interesting claim.

First, it reiterates that positive obligations (for example, a duty to warn the Claimants or challenge the competence of the contractors) are the preserve of claims in contract, not tort.  The tort of negligence is, instead, concerned with avoiding doing something, or doing something badly.  A professional providing services on a gratuitous basis is under a tortious duty to take reasonable care and skill in the services they provide, but are not liable for anything they fail to do. The Claimants needed to show that what the Defendant did in relation to the landscaping works was not done with reasonable skill and care. The Claimant was not entitled to say that the Defendant had a duty to warn or advise because this would constitute a positive duty on the Defendant that did not arise in tort.

Second, it shows that the hurdles a Claimant must overcome in successfully claiming negligence against a professional (existence of duty, breach of duty and causation) are alive and kicking.  A finding for the Defendant in one of those areas will be sufficient to defeat a claim.

Third, it emphasises the care that should be taken in properly pleading a client's case.  The judge was critical in his judgment of how the Claimants had presented their case on both breach and damages.  He was unhappy at the Claimants continuing to plead that the design drawings produced by the Defendant were negligent, having accepted that they were not negligent during the preliminary issues hearings.  He reserved particular criticism for the damages claim, stating it had "many weaknesses". The Claimants were criticised for failing to even attempt to identify the losses suffered as a consequence of the alleged breach of duty and instead making a global claim that included items the Defendant never could have been liable for even if a breach was to be found. The Court found that the global claim was a sum that sought to punish the Defendant rather than compensate the Claimants for their losses – which has never been the purpose of damages for negligence. 

Fourth, it is a useful reminder of when preliminary issues trials can be useful.  Whilst the considerations in deciding whether a preliminary issue trial should be held are numerous, they are fundamentally intended to reduce costs by disposing of the case early, cutting down on trial time or paving the way to settlement.  The preliminary issues trial in this case was hard-fought.  It was then appealed.  It did not dispose of the case, which went to a final hearing – the outcome of which rendered the Claimants' success in the preliminary issues hearing largely irrelevant.  With the benefit of hindsight, the preliminary issues trial benefitted nobody (save for the lawyers).

Fifth, it shows that professionals should take care when providing advice to friends.  Not every professional will be able to successfully defend a claim on breach like the Defendant did in this case.  Worse, it is unlikely that any professional indemnity policy which the professionals' firm might hold would respond to such a claim – potentially making the professional personally liable for any judgment and costs.

Contact

For more information please contact Kate Attwood Kate.Attwood@dwf.law 0161 537 1489 or Chris Burns Chris.Burns@dwf.law 0161 603 4969.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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