Mrs Lejonvarn carried out professional services for Mr and Mrs Burgess on their garden landscaping project. They were, until a dispute arose, good friends and there was, so the court found in deciding preliminary issues, no contract between them for the professional services that Mrs Lejonvarn provided for the groundworks phase. There was also no fee for the services; Mrs Lejonvarn expected to charge a fee for a later phase of the project. But, despite that, did Mrs Lejonvarn owe a duty of care in tort?

Yes, said the court. A professional’s duty of care in tort to protect against economic loss applies to advice and any service where a professional exercises a special skill and it can extend to negligent omissions as well as negligent acts. The ingredients relevant to the case were an assumption of responsibility by the service provider and reliance by the recipient, in circumstances where a legal remedy was appropriate. A duty of care may arise even where services are performed gratuitously and there is no contract but, if there is no contract, it is important to exercise greater care in distinguishing social and professional relationships.

The services gratuitously provided were not informal or social but were provided on a professional basis. The parties’ relationship was akin to a contractual one, even though no contract had been concluded; there was obvious and sufficient proximity between them. Mrs Lejonvarn assumed responsibility to the Burgesses for the professional services and they relied on her for that purpose. A legal remedy in tort was therefore appropriate.

Burgess & Anor v Lejonvarn [2016] EWHC 40