In Peter Burgess and Lynn Burgess v Basia Lejonvarn, the Court had to consider several preliminary issues relating to a dispute arising from gratuitous services provided by an architect to her friends.
Mr and Mrs Burgess bought a house and decided to landscape their garden, which involved earthworks on a steep site. They obtained a quote from a well known landscape gardener which they thought was too expensive. They then decided to ask assistance from Mrs Lejonvarn, a friend and former neighbour, who was an architect (although not registered as such in the UK).
Mrs Lejonvarn secured a contractor to carry out the earthworks and hard landscaping. She intended to provide subsequent design input about the 'soft' elements of the project, such as lighting and planting, when that stage was reached, for which she intended to charge a free.
The earthworks and landscaping works were done, but the Burgesses brought Mrs Lejovarn's involvement to an end and continued with the works using a member of the original workforce. They later engaged the specialist landscape gardener who had provided the original quote.
Mr and Mrs Burgess brought a claim against Mrs Lejonvarn in contract and in tort, for the difference between the actual cost of the works to them (including remedial works) and that which they said it should have cost. The couple alleged that Mrs Lejonvarn's involvement was defective. Mrs Lejonvarn denied being responsible for the quality of the works carried out on site.
The Court found that the parties had not entered into a contract, because it was impossible to draw out from the e-mail exchanges between the parties any clear form or offer or acceptance. Moreover, the parties did not intend to be legally bound by a contractual relationship, and there was no consideration for such an agreement. Also, there was simply no discussion about payment.
However, the Court did find that Mrs Lejonvarn did owe a duty of care to Mr and Mrs Burgess to exercise reasonable skill and care in the provision of professional services acting as an architect and project manager.
The Court stated that, although the losses claimed in the case were purely economic, a duty of care extends to protection against economic loss in respect of both advice and any service in which a special skill is exercised by a professional. The test was whether there was an assumption of responsibility by the provider of the service coupled with reliance on it by the recipient.
A duty of care may be found to arise even in circumstances where services are performed gratuitously and in the absence of a contract. However, in the absence of a contract it is important to exercise greater care in distinguishing between social and professional relationships. In the case Mrs Lejonvarn assumed responsibility to the Burgesses for performing professional services in respect of the Garden Project, and they specifically relied on her for that purpose.
A key consideration by the Court was that this was a significant project, albeit in a residential setting, and was being approached in a professional way. Mrs Lejonvarn did not provide brief ad hoc advice of the type occasionally proffered by professional people in a less formal context. Instead, the services were provided over a relatively lengthy period of time and involved considerable input and commitment on both sides. They also involved significant commercial expenditure on the part of the Burgesses. According to the Court, it would be wrong to categorise this as akin to a favour given without legal responsibility.
The Court also mentioned that although there was no consideration for the services undertaken, it was nonetheless relevant to the context that Mrs Lejonvarn did hope to receive payment for the soft design services that would later be provided. She therefore had a direct interest of her own in properly performing services for the Burgesses.
COMMENT: The facts of the case make it clear that this was not simple and/or brief advice given to an acquaintance in social circumstances; something more is needed to establish liability. How much more will depend on the facts of each case. A risk of crossing the threshold of liability will arise when a professional assumes responsibility for performing professional services, and the recipient of those services relies on the professional.