Freebies for friends? Burgess v Lejonvarn revisited
The 2016 preliminary issue decision in Burgess v Lejonvarn (upheld on appeal in 2017) sparked much interest, holding as it did that an architect owed her friends a duty of care whilst providing services free of charge. The recent decision by the TCC means the Claimant's attempts to recover have been in vain – whilst a duty may have been owed, it had not been breached.
In 2012 Mr and Mrs Burgess (the "Claimants") decided to undertake landscaping work to their garden. They obtained a quotation of approximately £150,000 from a renowned landscaping company. Mrs Lejonvarn (the "Defendant") was an architect and friend to the Claimants. She thought the landscaping work could be completed on a smaller budget.
The Defendant provided her services to the Claimants free of charge, she secured a contractor to complete the ground work and it was intended she would later provide detailed design work for a fee. However, the parties fell out over the quality and progress of the work on site, and the budget and, ultimately, the Claimants brought a claim against the Defendant.
A trial on preliminary issue was held in 2016 and the judgment upheld on appeal in 2017.
The preliminary issues included consideration of whether a contract had been concluded between the Claimants and the Defendant and whether the Defendant owed the Claimants a duty of care in tort.
The judge held that no contract had been concluded between the parties, but that the Defendant owed the Claimants a duty of care in the absence of a contract and even in circumstances where services were being provided free of charge between (former) friends.
The decision attracted plenty of interest, given that it opened up professionals to a claim in tort in what must be relatively common circumstances - where a professional gives friends "a freebie".
Whilst the trial judge was bound by the Court of Appeal finding that the Defendant did owe a duty of care in tort to the Claimants, after a five-day trial he decided that:
1) The drawings produced by the Defendant were not detailed design drawings and had not been produced negligently;
2) The Defendant's inspections were adequate to review the validity of the contractor's applications for payment; she had not failed, negligently or in breach of duty, when inspecting the works for non-compliance; and
3) The Claimants' damages claim was weak and included many matters that the Defendant could not have been liable for, even if the decision on breach of duty had been different.
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