The Court of Appeal has upheld the High Court’s decision in Burgess v Lejonvarn [2017] EWCA Civ 254 that an architect who provided her friends with professional services at no charge and without a contract owed a duty of care in tort to act with reasonable care and skill.

The architect had assumed responsibility by offering her skilled services to the friends in the knowledge that they would be relying on those services being properly performed. As to the scope of duty, the Court of Appeal held that while there was no obligation to provide the services, where such services are provided the duty owed is to exercise reasonable care and skill. The absence of a contract did not mean that the relationship could not be akin to a contractual one. Despite the services being given free of charge, they were still provided on a professional footing as Mrs Lejonvarn expected it would eventually lead to paid work.

The case is a warning of the dangers of free advice and carrying out professional work without the benefit of the usual protection of engagement terms. That said, the facts of this case are very different from the provision of an adviser giving “off the cuff” informal advice, where we would expect a court to be much more reluctant to impose a duty of care.

Background

For ten years or so Mr and Mrs Burgess and Mrs Lejonvarn were good friends, having been near neighbours before the Burgesses moved. However, a dispute arose over the alleged provision of gratuitous professional services by Mrs Lejonvarn for the Burgesses. The alleged services related to a significant landscape gardening project which involved earthworks on a steep site at the Burgesses’ property.

Following a quote of over £150,000 (which the Burgesses regarded as too expensive), the Burgesses decided to ask for Mrs Lejonvarn’s assistance with their landscaping scheme. Mrs Lejonvarn was an American qualified architect and a project manager by trade and, for the early stage of the project, Mrs Lejonvarn would not charge a fee for her services. However, the project did not go well leaving the Burgesses unhappy with the quality and progress of the work and ultimately Mrs Lejonvarn’s involvement came to an end in July 2013.

The Burgesses claimed that much of the work done during the period of Mrs Lejonvarn’s involvement was defective and that she was legally responsible for it. The Burgesses claimed damages of over £260,000.

The High Court Decision

The questions for the High Court were as follows:

  1. was there a contract between the Burgesses and Mrs Lejonvarn; and
  2. did Mrs Lejonvarn owe a duty of care in tort in her role as project manager?

The Judge held it was impossible to extract any form of offer and acceptance from the email exchanges between the Burgesses and Mrs Lejonvarn - there was no agreement. Further, the parties did not intend to be legally bound by a contractual relationship. The Judge held that no contract existed between the parties and the Burgesses’ claim in contract failed.

As to a duty of care in tort, the Judge concluded that Mrs Lejonvarn assumed responsibility to the Burgesses for performing professional services in respect of project managing the gardening project and they specifically relied on her for that purpose. Therefore, Mrs Lejonvarn owed a duty of care to Mr and Mrs Burgess to exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager on the gardening project.

The Court of Appeal Decision

Mrs Lejonvarn appealed against the Judge’s decision that she owed the Burgesses a duty of care in tort.

The Court of Appeal dismissed the appeal upholding the Judge’s decision that Mrs Lejonvarn owed a duty of care to the Burgesses to exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager on the garden project. The absence of a contract did not mean that the relationship could not be akin to a contractual one. Despite the services being given free of charge, they were still provided on a professional footing as Mrs Lejonvarn expected it would eventually lead to paid work.

The Court of Appeal stressed that this is not a duty to provide such services. It is a duty to exercise reasonable skill and care in providing the professional services which Mrs Lejonvarn did in fact provide in relation to the garden project. She did not have to provide any such services, but to the extent that she did so she owed a duty to exercise reasonable skill and care in the provision of those services.