As published on our Talking Solutions blog, a recent case affirms the age-old cliché that business and pleasure should not be mixed, as it was found that a professional consultant owed a duty of care for gratuitous professional services provided to a friend.
Mr and Mrs Burgess wanted to landscape their garden at their estate in Highfields. Having received a quote from a well-known landscaper in excess of £150,000, they asked for assistance from a friend and former neighbour, Mrs Lejonvarn. Mrs Lejonvarn, an architect by trade, was asked to provide professional services to the Burgess’ garden. The parties never entered into a formal contract but it was suggested at trial that Mrs Lejonvarn planned to charge for detailed design work later in the project – if the project reached that stage.
The project did not go smoothly, the relationship broke down and Mr and Mrs Burgess sued their former friend in contract and tort for the cost of the remedial works in the sum of circa £265,000.
The Technology & Construction Court (TCC) was asked to decide a number of preliminary issues. It was found that no contract between the parties had come into existence because the relationship lacked the essential elements of a legally binding contract (i.e. offer and acceptance and consideration).
However, Mrs Lejonvarn owed Mr and Mrs Burgess a duty of care in tort (a duty of care in tort may be imposed by operation of law between individuals with no current contractual or other relationship that eventually become related in some manner, as defined by common law). Mrs Lejonvarn had breached her professional duty of care in failing to select the correct project team, failing to prepare designs needed for pricing and construction, failing to exercise cost control and failing to frequently inspect works. It did not matter that the services were provided gratuitously as they were all provided in a professional context. It is useful to note that no distinction should be drawn between the provision of advice and the provision of services where special skill is exercised.
The case highlights a risk common to any professional who offers informal advice to friends. The court emphasised that “this was not a piece of brief ad hoc advice”. This was a significant project approached in a professional way, with services provided over a relatively long period.
So if you are a professional consultant involved in providing advice or services, it is important to understand that you will owe a duty of care to those benefiting (or suffering as the case might be) from your advice or service irrespective of the relationship you enjoy with that person.
People seeking professional advice should equally be cautious when taking advice from friends as they risk friendships if a dispute were to arise. In practical terms, it is prudent to enter into formal contracts so both parties understand how the risk in the project is apportioned between the parties.
The case in question also highlights the TCC’s willingness to try preliminary issues that may lead to settlement of the dispute. In this case, the court held that it could not think of “a more appropriate case to which mediation is suited”.
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 Burgess and another v Lejonvarn  EWHC 40 (TCC)