Professional negligence for gratuitous services

6 December 2018

Background

The decision follows an earlier trial of a preliminary issue in January 2016, which established that the defendant architect (Mrs Lejonvarn) owed a tortious duty of care to her friends (the Burgesses), notwithstanding the fact that there was no contract and Mrs Lejonvarn was not paid for her services.

That decision was subsequently upheld by the Court of Appeal in April 2017, although the Court of Appeal clarified that in the absence of a contract or payment, a professional can only be liable for what he or she actually did and not what they failed to do.

Having disposed of the preliminary issue, the claim proceeded to a hearing in the TCC in July 2018, to decide whether Mrs Lejonvarn had breached her duty of care and, if so, what losses the Burgesses had suffered as a result.

Relevant facts

To recap, the facts of the case were as follows.  The Burgesses were good friends with Mrs Lejonvarn, a foreign registered architect.  In 2012, the Burgesses embarked on a substantial landscaping project and obtained a quote for c. £150,000 plus VAT.  Mrs Lejonvarn told the Burgesses that she believed the project could be delivered within a smaller budget and proceeded to provide advice, design and project management services in relation to the project.  The parties did not enter into a contract and Mrs Lejonvarn was not paid for her services.

The project suffered from significant delays, cost overruns and defects.  The parties subsequently fell out and the Burgesses ended Mrs Lejonvarn’s involvement in the project in July 2013.  The Burgesses proceeded to complete the project at a total cost of c. £360,000.

The Claim

The Burgesses brought a negligence claim against Mrs Lejonvarn and sought damages for the difference between the original quote for the works and the total costs they eventually incurred.  In particular, the Burgesses alleged that Mrs Lejonvarn had failed to:

  • warn them that the works should not commence until sufficient construction design details were in place;
  • identify the need for detailed designs and specifications from other competent professionals, such as a structural engineer;
  • include sufficient construction detail in her designs; and
  • take adequate (or any) cost control and project management measures, such as monitoring expenditure against the budget.

The Court emphatically rejected each of the Burgesses’ allegations and confirmed that Mrs Lejonvarn had not been negligent in any respect.  In reaching its decision, the Court emphasised that:

  • the duty of care owed by Mrs Lejonvarn extended only to “positive acts” and she could not therefore be liable for any alleged failures to provide advice and/or services; and
  • claims for defective workmanship do not automatically give rise to a claim against a professional for a failure to inspect and/or identify defects. In this case, the Burgesses had “made little or no effort” to explain why Mrs Lejonvarn should have identified the alleged defects.

The Court was highly critical of the Burgesses case, commenting that many of the allegations “lacked credibility and conviction” and that Mr Burgess’ witness evidence was “unsatisfactory” and inconsistent in a number of respects.

Comment

The earlier decisions of the TCC and Court of Appeal in this litigation caused much debate and consternation amongst lawyers and other professionals.  Although the facts of this case were rather extreme, the prospect of being liable in negligence for informal and gratuitous advice or services gave rise to understandable concerns.

However, this decision illustrates the difficulties of successfully prosecuting a claim against a professional in these circumstances.  Firstly, the scope of the duty of care is relatively narrow as it will only apply to advice given or services performed, and not to a failure to do something.  Moreover, even if a claimant can establish the existence of a duty of care, it still has the considerable burden of proving that the defendant has breached that duty and that it has suffered loss as a direct and foreseeable result.

The case also raises important strategic questions about whether and when it is appropriate to proceed with a preliminary issue.  In this case, the preliminary issue was the subject of first instance and appellate decisions.  It failed to dispose of the case and it has plainly added to the Court’s burden and the parties’ costs of the proceedings.  In short, the Burgesses earlier victories in the TCC and Court of Appeal have proven to be useless and they will now face a legal costs bill which one expects will exceed the value of their claim by a significant margin.

Christian Charles Author
Christian Charles
Senior Associate
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