firm news

Rowan Turrall
Rowan Turrall,
SENIOR ASSOCIATE - SOLICITOR
more
Architect’s duty of care for free services
01 February 2016

Sometimes what starts as doing some work for a friend can turn into a nightmare. Deputy High Court Judge Nissen QC described the case of Burgess v Lejonvarn [2016] as “something of a cautionary tale”. The claimants and defendant had been friends and fell out after a significant landscape gardening project went wrong. The defendant had provided services for the project free of charge at least for the initial stages. The claimants wanted to recover damages from the defendant for the cost of putting the project right. The court therefore had to decide various questions as preliminary issues including whether there was a contract between the parties and whether the defendant owed the claimants a duty of care.

The facts

The Burgesses and the Lejonvarns were good friends and former neighbours. Mrs Lejonvarn had previously worked as an architect in the USA. She moved to the UK and stopped work to bring up her children. Later on she started to work again for various architectural practices although she was not in fact registered with the Register of Architects in the UK.

The Burgesses wanted to landscape their garden. They obtained a quote from a well known landscape gardener to carry out the work for a cost in excess of £150,000 plus VAT. They felt this was too expensive and so asked Mrs Lejonvarn to assist them. Mr Burgess had previously used Mrs Lejonvarn’s services to carry out some projects for his company. There were various discussions about what the Burgesses wanted to achieve as well as email exchanges. Mrs Lejonvarn subsequently engaged a contractor to carry out earthworks and landscaping on the Burgesses’ behalf. Much of the initial groundwork was undertaken but the parties fell out due to an argument over how much the overall works were going to cost which the Burgesses contended exceeded the budget. The Burgesses then claimed damages from Mrs Lejonvarn further alleging that much of the work which was done during her involvement was defective and that she was legally responsible for it.

Mrs Lejonvarn played down the scope of her involvement in the project and sought to argue that all she had done was to introduce the Burgesses to a contractor with whom she had a close working relationship and had sourced a costs estimate from them. She argued that she had then acted as a mere conduit between the contractor and the Burgesses, partly because the contractor was Polish and she spoke Polish. She said that she was hopeful she would then receive a future commission to produce the detailed design and specification for the soft works. Her case was that her role was an informal one – she was a friend with a professional background.  

The decision

The judge concluded that there had been no contract between the parties. Having considered the written exchanges he found it impossible to draw out from those any clear form of offer or acceptance. He said that it was not necessary for there to have been a precise offer and acceptance and something looser would have been acceptable if there was sufficient consensus about the broad basis on which Mrs Lejonvarn was being retained. There was not though. There was no discussion between the parties of remuneration, duration of services, termination provisions or any other clauses one would normally expect in a professional’s terms of engagement.

However, the judge dismissed Mrs Lejonvarn’s suggestion that she had only been involved as a friend. Even though he found there was no contract that did not mean that there was no liability, even though her services had been provided gratuitously. The judge concluded that she had assumed responsibility for performing services for the Burgesses and they had relied on her for that purpose. He found that the duty of care on the facts of this case extended to preparing designs or overseeing the preparation of designs to enable a fairly firm budget to be prepared, to periodically inspect the works, to advise and direct in relation to payment applications, to prepare a budget and oversee expenditure against it and to carry out detailed design of the type which would be expected of an architect providing services of the type which arose in this case. She therefore owed a duty of care to exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager on the project.

Conclusions

As the judge said at the outset of his judgment, this is a cautionary tale of what can happen when an informal relationship develops into a professional one without the parties setting out precisely what work is to be done and on what terms. Professionals should not assume that just because they are not charging for their work or because they do not have a formal contract in place they can escape liability if things go wrong.

The case was only to determine preliminary issues so it remains to be seen the extent to which it is found that Mrs Lejonvarn breached the duties that the judge found she owed.  

For more information about the issues raised in this article or to find out more about how the Construction team can help you please contact Rowan Turrall on 0118 952 7206 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

award winning law firm

Boyes Turner are proud to have received the following awards and recognition.

awards