It can be a common misconception that where services have been offered without charge then there will be no liability in the event that something goes wrong. This point was addressed in the recent case of Burgess and another v Lejonvarn [2016] EWHC 40 (TCC) and serves as a warning to all professionals offering free advice. 

The Facts

Ms Lejonvarn was an architect and was friends with Mr and Mrs Burgess. Over time the friends did various favours for each other. In 2012, Mr and Mrs Burgess obtained a preliminary design and quotation for works to the back garden of their £5,000,000 home which included substantial landscaping work costing over £200,000.

Ms Lejonvarn was in the process of setting up her own business and offered her services without charge. She informed Mr and Mrs Burgess that she could work in a budget of around £78,000, which was later revised to £130,000. There was no written contract or terms discussed. However, Ms Lejonvarn had planned to charge for some design work as the project progressed.

Sadly, the relationship broke down and the budget exceeded the estimates given by Ms Lejonvarn. Mr and Mrs Burgess claimed the cost of significant remedial works of just over £250,000 from Ms Lejonvarn. Mr and Mrs Burgess pursued a claim in both contract alleging that there were implied terms as to the quality of her work and in tort, that she owed them a duty of care.

Findings

On a preliminary issues basis it was established there was no contract between the parties because there was no consideration provided for the work and there had been no offer that was capable of acceptance. However, the Court held that a professional designer can owe a duty of care in respect of pure economic loss on a project for gratuitous services. 

Ms Lejonvarn had tried to argue that as a consultant she was not under a duty when performing services such as project management, which was distinct from giving advice and she relied on the well known case of Murphy v Brentwood District Council [1991] UKHL 2.

However, the Court found that Mr and Mrs Burgess had placed their trust in Ms Lejonvarn, who had held herself out as having the relevant professional skills to carry out the project. It was held that she had therefore assumed responsibility for the project work and her skills had been relied upon. The Court held the duty was to exercise reasonable care and skill.

Comment

The Judgment is a cautionary tale to professionals who offer informal or free advice. The Court placed weight on the extent and detail of the advice provided by Ms Lejonvarn and the fact the landscape work was significant and the advice was provided over a long period of time. Ms Lejonvarn had prepared designs, costing and submitted applications on behalf of Mr and Mrs Burgess. This is clearly different to a quick telephone call or informal advice over a drink in the pub. In this case, Ms Lejonvarn as the professional had committed herself to a significant level of work. It was not a favour without legal responsibility.

Finally, if you raised an eyebrow at the cost of spending £250,000 on gardening work, you are not alone.  The case continues in respect of whether breach of duty has occurred.