The Court of Appeal, in Lejonvarn v Burgess, has unanimously rejected an appeal against a decision that an architect who provided gratuitous services to friends owed them a duty of care in Lejonvarn v Burgess .This decision will be of relevance to all professions, and emphasises the importance of risk management even in a more informal situation and/ or where no money changes hands. Although the decision concerned a sole practitioner providing advice/services to friends, the case will also be of interest to larger firms, where partners might still agree to provide 'off the cuff' legal advice unrelated to the retainer for a low fee or free of charge.
Ms Lejonvarn was a foreign-qualified architect who had been a friend of Mr and Mrs Burgess for many years. In late 2012, the Burgesses began to discuss with Ms Lejonvarn their plans for a landscaping project on their garden. They had received a quote from another architect, Mr Enright, but, at a total of £175,622, had thought this was too expensive. In casual conversations with Mr and Mrs Burgess, Ms Lejonvarn indicated that a construction team with whom she had a good relationship would be more than capable of carrying out the job and indicated that she could oversee the project in her capacity as an architect. The intention was that she would subsequently provide design work in relation to lighting and planting for which she would charge a fee, but as it transpired matters would not get that far.
In emails exchanged in March 2013, Mr Burgess made it clear that budget was a concern. He discussed in detail with Ms Lejonvarn what the project should entail. In April 2013, Ms Lejonvarn identified a budget of £130,000 plus VAT (despite a previous written estimate of £78,000 plus VAT) and work commenced on 15 May 2013.
In July 2013, Mr and Mrs Burgess began to raise concerns about the progress of the project and about the budget. Mr Burgess denied that a budget of £130,000 had ever been agreed and described the project as "a disaster". On 9 July, he told Ms Lejonvarn that he wanted to call a halt to her involvement. Subsequently the relationship broke down entirely and problems became apparent with the works that had been carried out.
Eventually the project was taken over and completed by Mr Enright.
The TCC's decision
Mr and Mrs Burgess sought the cost of remedial works from Ms Lejonvarn and the trial of preliminary issues was heard in the TCC in 2016.
The judge found that there was no contract between the parties, there being an absence of offer/acceptance and consideration. However, he concluded that Ms Lejonvarn did owe Mr and Mrs Burgess a common law duty of care because she possessed a special skill and had assumed a responsibility for the project, on which the Burgesses had relied. This was despite the fact that the services were provided for free. Though the services were free, this did not mean that they were "informal" or "social" in context.
The Court of Appeal's decision
Ms Lejonvarn appealed against the TCC's decision on a number of grounds. She contended that the TCC had been wrong to find that a duty of care existed at common law and in particular that she was under a duty to supervise the project and to oversee the budget.
The Court of Appeal found that even though there was no contract in place this did not mean that the relationship of the parties was not akin to a contractual one. Although the services provided were free, they were provided on a professional footing not least because Ms Lejonvarn was expecting them to lead to paid work. Though Mr and Mrs Burgess were not contractual clients, they were still clients in a professional sense. Ms Lejonvarn was not under a duty to provide the services, but since she did provide them she was under a duty to provide them with reasonable skill and care.
In terms of budgeting, the Court found that Ms Lejonvarn had been alive to the Burgesses' concerns about costs and that as such it was reasonable to conclude that she owed a duty of care in respect of overseeing the budget.
Counsel for Ms Lejonvarn argued that it would be anomalous to find that Ms Lejonvarn owed a duty of care in relation to the project where the builders who carried out the work did not. Hamblen LJ found that there was a distinction between a builder and a professional, Ms Lejonvarn holding herself out to be the latter, and it was reasonable that a professional was taken to assume responsibility for economic loss.
In concluding, Hamblen LJ defined the actions in which Ms Lejonvarn had owed a duty to exercise reasonable skill and care as follows:
- Project managing the project and directing, inspecting and supervising the contractors;
- Preparing designs for a budget to be estimated;
- Advising and directing the Burgesses regarding payment;
- Exercising cost control by preparing the budget and overseeing expenditure.
It is already established that work carried out for a low sum or fixed fee must be completed to the ordinary standard or care, even if it is unremunerative (Inventors Friend Ltd v Leathes Prior (2011)) Lejonvarn is a stark reminder that the standard of care remains the same even if the advice is given for free.
At first blush the decision to impose a common law duty of care on an individual providing gratuitous services to a friend may seem a little harsh. However, this was not simply an informal piece of ad hoc advice imparted to a friend over dinner. Ms Lejonvarn's involvement in the project was extensive and ongoing over several months, and the intention was that it would lead to paid work. Her role involved sourcing contractors, providing designs, inspecting and supervising the project and exercising cost control. The project involved significant expenditure on the part of Mr and Mrs Burgess.
It is unlikely that an informal conversation with a friend in an entirely social context in which an individual offers their view is likely to result in the imposition of a duty of care (although of course this would depend on the exact facts), even though the person may be a professional. However, here Ms Lejonvarn hoped to gain paid work on the back of the gratuitous services and this crossed the boundary. She was seeking to advance her business which would not normally be the case when offering one-off free advice to a friend.
Although this case concerns a sole practitioner providing advice/services to individuals on a personal matter, there is the potential for these issues to crop up in larger corporate-focussed practices. For example, where a director at a longstanding client of a professional firm rings up the relationship partner and asks for advice or work on a personal matter or on something unconnected to the firm's retainer, either as a favour or for a low fee. In these circumstances, and in one's eagerness to assist a key client, it may be easy to forget that the duties owed to the client in respect of the work will remain the same.
Even where advice or services are provided at no cost, it is still important to take the usual steps in mitigation of risk, such as putting in writing exactly what the professional has and has not agreed to do for the client. Firms might also wish to issue a reminder to fee earners that liability will attach to all work carried out and advice given as a professional, whether as part of their job or whether in a more personal capacity, and they should be aware of the risks involved.