A few weeks ago I was having some new windows fitted to my house. The window fitter asked an innocent enough question – what did I do for a living and when I told him I was a lawyer his response was – ‘ah I wonder if you can help me with something. My neighbour has some Japanese knotweed growing in his garden which has spread into mine. Is there anything I can do about this’?
Fortunately I manged to duck the issue by offering to make him a cup of tea (and then shamelessly using my youngest son to deliver the tea!) but as I am sure most people would agree, as professionals, we are often asked to give recommendations or advice in an informal setting or even as a favour. The recent case of Lejonvarn v Burgess could serve as a cautionary tale about against this however.
Mrs Lejonvarn was a Dutch architect living in the UK. In 2012 her neighbours and friends, Mr and Mrs Burgess were planning extensive works to the back garden of their Highgate home. The Burgesses obtained an initial estimate for the works which they considered to be high and Mrs Lejonvarn offered to assist the Burgesses to reduce the costs. She became heavily involved in the project securing contractors and providing project management services at no cost. She had intended to charge a fee for design work at a later stage but her initial advice, sourcing of contractors and project management was done at no charge.
Unfortunately the project did not proceed as planned and the relationship between Mrs Lejonvarn and the Burgesses deteriorated. Mrs Lejonvarn’s involvement in the project ended in July 2013 and the Burgesses engaged the landscape designer who had provided the initial estimate. They then brought a claim against Mrs Lejonvarn for in excess of £200,000, being the increased costs to complete the works (including the cost of rectifying the defective works already performed). It is worth remembering at this point that Mrs Lejonvarn was using her professional experience to try and assist her friends the Burgesses, and had not charged for her involvement in the project.
At first instance the court held that there was no binding contract between the parties. There was no formal offer by Mrs Lejonvarn, no acceptance by the Burgesses and there was an absence of consideration (ie a formal payment arrangement between the two parties). However the court concluded that there had been an assumption of responsibility and that Mrs Lejonvarn did owe a duty of care to the Burgesses to exercise reasonable skill and care in the provision of her professional services.
Mrs Lejonvarn appealed and the appeal was held earlier this month with the Court of Appeal upholding the first instance decision. The Court of Appeal concluded that Mrs Lejonvarn had offered her services to the Burgesses in the expectation that they would rely on her advice and that economic loss would be caused to the Burgesses if Mrs Lejonvarn did not properly perform her services. Mrs Lejonvarn therefore owed a duty to exercise reasonable skill and care in the provision of the services and could be liable in negligence for failing to do so.
The case provides a salutary lesson about the dangers of giving informal advice to friends. The Court did point out that ‘this was a significant project approached in a professional way. This was not a piece of brief ad hoc advice of the type occasionally proffered by professional people in a less formal context. Instead the services were provided over a relatively lengthy period of time and involved considerable input and commitment on both sides’. However the potential dangers are clear and although there not likely to be any liability arising from a brief opinion given in an informal environment, if this develops into the provision of ongoing services where the recipient is relying on the expertise and advice given, there is a potential for liability to arise.
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