REUTERS | David Mdzinarishvili

With friends like these…Burgess v Lejonvarn: Christmas cheer for construction professionals

As we all get into the festive spirit you may well find yourself chatting to family or friends about their latest project. Some may ask for your opinion or advice. But don’t get carried away; remember the cautionary tale of Burgess v Lejonvarn before offering any free advice.

Background landscape

In what is now the third, and presumably final, chapter of this story, Martin Bowdery QC, sitting as a deputy High Court judge in the TCC, has rejected a claim against a professional consultant for advice she provided free of charge to her friends.

Mrs Lejonvarn, an architect and project manager, provided gratuitous project management and architectural services to her friends, Mr and Mrs Burgess, in relation to a garden landscaping project at their home. The project did not go well; there were cost overruns and the Burgesses and Mrs Lejonvarn were soon in disagreement. The Burgesses alleged that the agreed budget was £78,000, with Mrs Lejonvarn asserting it was £130,000. Mrs Lejonvarn was eventually replaced on the project by a well-known garden designer (who was originally discounted by the Burgesses because its quote was deemed too high).

The Burgesses claimed against Mrs Lejonvarn in contract and tort for the increased cost of completing the works (£265,000).

Scope of the duty of care

The first instance hearing was limited to preliminary issues only:

The judge found that there was no contract between the parties but Mrs Lejonvarn nevertheless owed the Burgesses a duty of care in tort (With friends like these… Burgess v Lejonvarn: a parable for construction professionals).

This was later upheld by the Court of Appeal, which confirmed that an architect/project manager providing services gratuitously and in the absence of a contract owes a duty in tort to exercise reasonable skill and care in performing any professional services that it undertakes.  However, crucially the scope of the duty did not require Mrs Lejonvarn to carry out any specific services (With friends like these… Lejonvarn v Burgess: the parable for construction professionals continues). Contrary to a contractual obligation, there was no positive obligation to do anything. The scope of the tortious duty was merely to exercise reasonable skill and care in performing such services as she did in fact provide.

Notwithstanding the absence of a contract, the Court of Appeal described the parties’ relationship as “akin to a contract” and concluded that the appropriate “test” to apply in such cases was the assumption of responsibility test.

The final round?

In the latest, and probably final, round of proceedings in this case, the Burgesses, having established that their (former) friend and architect Mrs Lejonvarn owed them a duty of care, could not actually prove that they suffered any loss at all. Ultimately, on an analysis of the facts, the court held that Mrs Lejonvarn did not breach any duty owed to the Burgesses.

The court reiterated the earlier finding that the scope of Mrs Lejonvarn’s duty was limited to those services which she did in fact provide:

“… the Court of Appeal made it clear that a professional providing gratuitous services was liable for what he or she does but not for what they fail to do.”

The court went on to consider in detail the various claims and evidence, criticising the “scattergun approach” taken in relation to the alleged breaches of duty against Mrs Lejonvarn. In the case of drawings which were never ultimately adopted and design changes which could not be sufficiently identified or were never implemented, the court failed to see how Mrs Lejonvarn acted negligently. The claim was dismissed with the question of costs to be determined, unless agreed by the parties.

This was very likely the best Christmas present Mrs Lejonvarn could have wished for after many years of court proceedings.

Lessons for construction professionals and their clients

Although the final decision turns on its facts and the evidence, as will often be the case, there are still lessons to be learnt by both clients and construction professionals:

  • The absence of a formal written professional appointment does not mean there is no binding contract, even between “friends”, provided the key elements of a contract (including payment) are present.
  • In the absence of a contract, professional consultants may still owe a duty of care in tort for services performed. However, the Court of Appeal made it clear that professionals providing gratuitous services can only be liable for what they actually do, and not for what they fail to do.
  • Clients should be aware of the potential pitfalls in proving a breach of duty and quantifying their loss, particularly in the absence of a written contract. The TCC was particularly critical about how the alleged breaches were presented and the unrealistic nature of the global claim put forward.
  • Construction professionals are reminded that, to the extent they provide services (even gratuitously), they owe a duty to exercise reasonable skill and care in performing those services.

Finally, a festive lesson for all; do not revisit the Ghost of Christmas Past and, as cautioned in our earlier blogs, beware of the dangers of mixing work and friendship. While each situation will turn on its facts, this case shows that even without a contract a professional can assume a responsibility not to cause economic loss when providing services free of charge.

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