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With friends like these… Burgess v Lejonvarn: a parable for construction professionals

A friend phones you for legal advice. He is in the middle of home extension works and while they started off well, the works are now running well behind schedule and the standard of workmanship is shoddy. What do you do? Hang up in a panic or confidently recite Supreme Court judgments and reassure them that you are happy to help out and advise them for free. They are a friend after all.

I found myself in a not too dissimilar position shortly before Christmas. My mother called about a wood-burning stove she had installed in her living room. It had been fitted poorly and was leaking onto the carpet. Before I knew it, I found myself reeling off the various causes of action she could bring in contract, tort and (more exotically) unjust enrichment, citing the pertinent provisions of relevant legislation with bombast and aplomb. Had I read Burgess v Lejonvarn at that stage I would have exercised a little more caution.

Burgess v Lejonvarn

Mr and Mrs Burgess and Mr and Mrs Lejonvarn had been friends for over 10 years when the Lejonvarns found themselves at the Burgesses’ Olympics-themed party in the summer of 2012. Mr Burgess unfurled a high-level design for a landscape garden he hoped to build in his back garden. The designer had quoted a price of £150,000, a little steep according to Mrs Lejonvarn, an architect and project manager by trade. Things escalated from there and before long Mrs Lejonvarn found herself agreeing that her and her team would carry out the work at a lower price and that, for the early stages of the project at least, she would not charge for her services as project manager. A friendly gesture, though one she probably regrets.

The project was a disaster. Mrs Lejonvarn, who had no prior experience managing major landscaping projects, was unable to implement Mr Burgess’s dream design. Costs significantly overran. Relations between the two soured and Mrs Lejonvarn was eventually replaced with the landscape gardener that provided the original design. Mrs Lejonvarn is now defending a claim for £265,000 without any PI insurance cover.

The trial was limited to the evaluation of certain preliminary issues

  • Did a contract exist between the parties, and if so on what terms.
  • Did Mrs Lejonvarn owe the Burgesses a duty of care in her role as project manager.

The judge concluded that there was no contract between the parties. Basic elements of contract formation were absent, including offer and acceptance, certainty of key terms and consideration. This is unsurprising, given the informality of the parties’ relationship and Mrs Lejonvarn’s decision to provide her services gratuitously.

The law of tort was less kind to Mrs Lejonvarn. After examining the relevant authorities, the nature of her relationship with the Burgesses and the extent of her role in the project, the judge reached a clear conclusion: Mrs Lejonvarn owed the Burgesses a duty of care in tort.

Should you always refuse a friend’s request for advice?

It is tempting to jump to wild conclusions about the implications of this case for construction professionals. To do so would be a mistake.

As the judge was at pains to point out, Mrs Lejonvarn was not giving ad-hoc, informal advice to friends in a social context. This was a significant project and Mrs Lejonvarn’s role was integral. She assumed responsibility for procuring contractors, supervising on site, reviewing payment applications and overseeing the project budget. The Burgesses relied on her professed expertise. Although the parties were friends, her services were provided in a professional context and on a professional footing.

In holding Mrs Lejonvarn to account, the case serves as a timely reminder of the standard of conduct that society expects, and the law requires, of professionals. The relevant standard was that of a reasonably competent project manager and architect. The fact that Mrs Lejonvarn was not registered as an architect in the UK was immaterial. She had obtained the relevant qualifications in the US, was a registered architect in the Netherlands and regularly referred to herself as an architect in conversations with the Burgesses.

Lessons learnt

If you take just one thing away from this case, it should be this: beware of the dangers of mixing work and friendship. What might seem like a good idea amid the bonhomie of a celebration or other social event is not always the best decision in the long term. It took just two months of poor project management to dissolve a decade-long friendship.

If you take away two things, the second is never to give advice in a capacity approaching a professional one without PI insurance. You wouldn’t walk a tightrope without a safety net, would you?

The case is also the latest in a long line that illustrates the perils of failing to properly document an agreement to provide professional services or carry out construction works. In this case, it would have brought some much needed clarity, not only to Mrs Lejonvarn’s role, but also to the contractual framework for the project more widely. The judge commented somewhat wryly that while Mr Burgess was adamant that Mrs Lejonvarn was the main contractor on the project, his own counsel agreed with Mrs Lejonvarn that her role was that of project manager and that Mr Burgess had a direct relationship with the contractor.

Finally, the case acts as a reminder of the TCC’s willingness to rule on preliminary issues to help narrow the issues and bring about a settlement. It will be interesting to see whether the preliminary hearing averts the need for a full trial. As the judge noted at the close of his judgment, he could not think of a case better suited to mediation.

Berwin Leighton Paisner LLP Oliver Pearson

One thought on “With friends like these… Burgess v Lejonvarn: a parable for construction professionals

  1. A written contract would have clarified roles, managed expectations, sets standards of care and should have limited the consultant’s liability. Any duty in tort would also have been limited by that contract. Simple contracts can resolve so many cases before they come to court.

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