December 10, 2018

Free advice – but can you prove breach of duty?

The Technology and Construction Court (TCC) has dismissed a well-publicised claim for professional negligence brought against an architect, Mrs Lejonvarn, who agreed to supervise a garden-landscaping project for free for her friends. In 2017, during a trial of preliminary issues, the Court of Appeal had determined that a duty of care had arisen to supervise the project and oversee expenditure against the budget, despite the informality and gratuitous nature of the instruction. The case had served as a reminder and warning to professionals that even when they offer advice for free, they can still be subject to a duty of care.

Now though, having heard all the evidence during a full trial, the TCC has dismissed the claim on the basis that while Mrs Lejonvarn might have owed a duty of care to the Burgesses, she did not breach it.

Breach of duty

The Court of Appeal had previously found that Mrs Lejonvarn did not have to provide any services to the Burgesses at all, but where she had provided services, she was obliged to perform them with reasonable skill and care. In particular, the Court of Appeal had held that Mrs Lejonvarn owed a duty to exercise reasonable skill and care in respect of:

  • 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.

Mr Bowdery QC could not, on the evidence, find that Mrs Lejonvarn had in fact breached the duty of care she owed to the Burgesses in this regard.

While Mr Bowdery QC found that Mrs Lejonvarn had overstated her skills and experience to the Burgesses before the project, she was an honest witness and he considered that the Burgesses had tried to blame her for every conceivable defect. The Burgesses alleged that Mrs Lejonvarn’s duty to inspect the site extended to inspecting the structural work and groundwork for non-compliance. In reality, she only attended the site eight times after the project began and this was mainly to discuss the removal of birch trees, the lawn, the general progress of the project, and the contractors’ invoicing, all of which, the Court found, she had performed entirely competently. Her recommendations to the Burgesses to pay contractors had also been reasonable.

The Burgesses, despite having finished the project and having had five years to prepare their claim, could not explain how Mrs Lejonvarn ought to have acted differently, or how it would have saved them money. The Burgesses were not able to produce any allegedly negligent designs produced by Mrs Lejonvarn which had caused any loss. The designs she did produce, or those of the contractors that she revised, had never been intended to be relied on in the manner alleged by the Burgesses. She had had no reason to challenge the competence of the contractors retained to carry out the groundworks and build retaining walls, or of their designs.

Further, the Burgesses had continued to instruct a sub-contractor engaged by Mrs Lejonvarn after her involvement had ended, alleging, nonetheless, that Mrs Lejonvarn had failed to supervise the quality of that sub-contractor’s work.

The importance of factual evidence

This case illustrates the importance of factual evidence. Mr Bowdery QC preferred the factual evidence of Mrs Lejonvarn in almost every dispute between the parties (often finding Mr Burgess’ evidence inadequate in many respects and contradictory to Mrs Lejonvarn’s contemporaneous notes). Ultimately, the Burgesses, he found, had been recommended a budget of £130,000 by Mrs Lejonvarn and had accepted this, but later claimed that they had thought that the agreed budget was £78,000. This led to them falling out, the end of Mrs Lejonvarn’s involvement in the project and the subsequent claim against her.

Further, the Burgesses had sought to rely on independent factual witnesses, whom Mr Bowdery QC considered to be of limited assistance. They had inspected the site but could not identify which damage was attributable to Mrs Lejonvarn and which was simply unfinished work.

Unsubstantiated losses

Mr Bowdery QC was also highly critical of the way in which the Burgesses had sought to quantify their claim. They had based their losses on the difference between the amount they spent as a result of retaining Mrs Lejonvarn and the quotation they had been provided by the alternative architect whom they had initially rejected on the basis of cost, but whom they later instructed to complete the project after Mrs Lejonvarn had been dismissed, a claim which Mr Bowdery QC concluded "offends common sense". The Court found that the Burgesses had not even attempted to calculate the losses that were said to have flowed from the alleged breaches of duty by Mrs Lejonvarn, and that, “[t]o pursue this claim suggests that the claimants seek to punish the defendant for her alleged negligent mistakes rather than seek fair and reasonable compensation for her alleged mistakes.”

Dismissing her when they did, when the project was still within budget, the Burgesses were incapable of proving that the project would not have been completed within budget in any event.

Comment

Many professionals were worried by the Court of Appeal’s reminder that they could owe a duty of care in circumstances where they offered their services for free. This judgment demonstrates that a duty of care is one thing, but claimants still have an uphill battle in proving a breach of duty and loss, even more so in circumstances where the professional relationship was informal, un-particularised, and where, necessarily, the scope of the duty may be ill-defined.

That having been said, the Court of Appeal's findings as to a duty of care owed where advice is gratuitous should still serve as a warning to professionals that they could be found in breach of that duty and exposed to claims if the facts support it.