In Lejonvarn v Burgess [2017] EWCA Civ 254, the Court of Appeal upheld the decision of the High Court on a preliminary finding that, despite the absence of a contract between the parties, a qualified architect who had provided her former neighbours (and now likely former friends) with free professional services was required to carry out her work with reasonable skill and care. The duties arose in the tort of negligence because the defendant had a ‘special skill’ and had assumed a responsibility on which the claimants had relied.
The Court of Appeal clarified that the duties found were not a positive obligation to carry out the professional services but rather to exercise reasonable skill and care in carrying out the professional services undertaken.
Background
The claimants, Mr and Mrs Burgess, own a residential property in North London. In 2012, they decided to carry out landscaping to the garden of the property. Having initially rejected a quotation of £155,837 plus VAT and a planting budget of £19,785 plus VAT from another company, the claimants asked the defendant – their friend, former neighbour and US-qualified architect, Mrs Lejonvarn – for assistance.
Having secured a contractor to carry out earthworks and hard landscaping, the defendant had intended to provide and charge for the subsequent design work for the ‘soft’ elements of the project. However, it did not proceed to this chargeable stage, because Mr and Mrs Burgess were not happy with the quality and progress of the defendant’s work in providing design and project-management services.
Mr and Mrs Burgess brought a claim for £265,000 (for the increased cost of completing the project, including remedial works), alleging that much of the work done by the defendant was defective.
At a trial of preliminary issues in the High Court, the judge found that there was no contract for the provision of services but, in any event, the defendant still owed a duty of care to the claimants in tort. The defendant appealed the decision.
Legal issues
The key components of an enforceable contract are well established at common law. That is, there must be a clear offer and acceptance, consideration and an intention to create legal relations. In this case, the High Court had already determined that there was no contract. Citing Customs and Excise Commrs v Barclays Bank plc [2007], the Court of Appeal agreed that the appropriate test to determine whether the defendant owed a duty to act with reasonable skill and care was whether there had been an assumption of responsibility. The Court of Appeal found that the absence of a contract (and its key components) was relevant but not determinative to this issue.
Citing the Barclays Bank case and White v Jones [1995] 2 AC 272, the Court of Appeal also noted that, on the facts of this case, the defendant was “voluntarily tendering skilled professional services in circumstances where she knew [the claimants] would rely on the proper performance of those services.”
A timely warning to professionals
It is matter of policy for some companies’ staff to provide pro bono/free advice to clients. This could be for charitable and PR purposes or, as a business development strategy, to obtain future clients. This case serves as a useful reminder to professionals (legal, accountancy, agricultural, medical and others) that, even if their advice is free, they can still be exposed to liability for professional negligence.
An important consideration when carrying out free or pro bono work should be the scope of responsibility being assumed by the individual or firm and whether these services are being provided in the course of business. It is not outside the realm of possibilities that a professional could be found liable for negligent advice and for such liability to fall outside the coverage of a professional indemnity policy, in the absence of a formal retainer.
The decision is in line with the previous case law authorities. The court was not imposing a positive duty to carry out services in the absence of a contract. There is a clear distinction between finding a duty to carry out services and finding that, if a person chose to perform services, then they must act with reasonable skill and care when doing so.
Which reminds us…
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For more information on any of the issues raised in this article, please contact Thomas Wheeler in the Commercial Litigation team by emailing [email protected] or calling 0117 904 5768.
