Burgess v Lejonvarn  EWHC 40 (TCC)
The High Court has provided another cautionary judgement to professionals of all disciplines. It ruled that a duty of care is owed in spite of no contract being in existence and no remuneration provided.
The Defendant, a professional architect and designer, was approached by her friends and former neighbours (the Claimants) to help landscape their garden. An initial quote from another landscape gardener had previously been provided in the region of £150,000 plus VAT which was deemed too expensive. The Claimants therefore engaged the Defendant to arrange a team of professionals and coordinate the work.
No formal contract was ever established with the Defendant in providing design and project management services and no remuneration was discussed. The Defendant only intended to seek payment for services which might have been necessary at some point later on in the project. This was deemed by the Court to equate to providing gratuitous services.
The relationship between the parties deteriorated during the course of the project as concerns over the budgeting, project management and quality of work were raised. An alternative landscape designer was commissioned to complete the project. The couple sought up to £265,000 in damages in contract and tort for the increased cost of completing the project and the remedial works.
Alexander Nissen QC, sitting as Deputy High Court Judge, determined that no contract had been agreed because the email exchanges were insufficient to establish offer, acceptance or any concrete terms. There was no discussion of remuneration, duration of services or termination and generally no intention to be bound by a contractual relationship. The Defendant’s physical presence on site on the first day of work was not deemed to amount to acceptance of any offer and ultimately no consideration was provided. As such, the claim in contract failed. Nevertheless it highlights that professionals should establish clear terms of engagement before commencing work or risk being held liable for the economic consequences even if a claim in contract fails.
Duty of care
The Court also addressed whether a duty of care could arise despite the lack of a contractual relationship and despite advice having been given gratuitously. The judge drew heavily upon Henderson v Merrett Syndicates Ltd (No.1)  2 A.C. 145, the leading authority on liability in professional negligence, to emphasise that a duty of care arises where someone possesses a ‘special skill’ and undertakes to apply that skill which is subsequently relied upon. The duty is established irrespective of a contract or remuneration.
The Defendant could not be seen to be solely a ‘facilitator’ as she had effectively assumed the position of project manager in assembling the contractors. A service was provided in a professional way; over a significant period of time and required considerable expenditure by the Claimants. It was deemed appropriate that a duty of care existed and afforded a remedy in law where reasonable care and skill was not exercised.
However, a distinction was made with other ad hoc advice which may be briefly and occasionally offered by professionals and would not be deemed to give rise to a duty of care as in the instant case. Nonetheless, this judgement encourages professionals to err on the side of caution when offering informal advice or assistance and emphasises that the context is crucial.
The Court has directed focus on the role of mediation in such cases where professionals become liable for the economic consequences of their informal advice, with Alexander Nissen QC declaring: “I cannot think of a more appropriate case to which mediation is suited.”