(1) Peter Burgess (2) Lynn Burgess v Basia Lejonvarn [2018] EWHC 3166 (TCC)

Background

This case concerned an architect who agreed to assist her friends with their landscaping venture on a gratuitous basis whereby she secured a contractor to carry out earthworks and hard landscaping, providing a budget of £130,000. Following a disagreement over the budget, the parties fell out and the architect left the project. The owners claimed that much of the work done during her involvement was defective, alleging negligent design and project management and negligent advice on the architect's part. They claimed the difference between the £360,000 they eventually incurred on the project and the budget of £150,000 plus VAT they said they would have agreed with a landscaper had they been properly advised.

The court had determined, as preliminary issues, that there had been no contract between the parties and that the architect, as a professional providing gratuitous services, was liable for what she had done but not for what she had failed to do. It remained to be decided what services the architect had actually provided and whether she had acted negligently.

Court judgment:

The Court held, on the facts of the case, that the architect was not liable for any defects in the work conducted. The Court conducted thorough analysis of the issues and concluded the following:

  • Services provided - Drawings the architect had made had not been produced negligently. The architect had inspected the works sufficiently to review and advise regarding the contractors' applications for payment but she had not been inspecting the structural work and groundworks for non-compliance. The architect could not have been expected to inspect those works. She had not failed to properly assess and advise the owners regarding applications for payments made by the contractor.
  • Breaches of duty – The Burgesses' claim for negligent design and project management lacked credibility. They had been unable to identify any drawings by the architect which had caused any defective construction or any advice given negligently. In the absence of a contract, the architect had not been under any duty to offer advice or warnings and, until the parties fell out over the budget, there had been no advice or warnings which should have been given and were not given. The architect was not in breach of any of the alleged duties of care.
  • Loss and damage - Even had the owners established a breach of duty by the architect, their global damages claim had many weaknesses, seeming to transpire out of sheer greed. It included many items which the architect could not, on any view, have been liable for. The owners could and should have attempted to identify what actual losses were suffered as a result of the alleged breaches. The global claim was unsupported by the evidence and the owners were in no position to know whether the project would have been completed within the architect's budget. Further, the architect could not be responsible for any defective works carried out after she left the project. The total sum had been spent for reasons which had no relation to any alleged breaches and was not a foreseeable consequence of any breach.

Comments:

The conclusion one can draw from this case is that even when you are merely providing free professional advice to friends albeit of a speculative nature, it is still very important to define exactly the scope of what you are (or are not) doing.

Even in the absence of a contract, a tortious duty of care can still be established if you offer advice knowing the recipient will rely on it and, as such, when providing advice, you ought expressly to exclude liability for your work.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.