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PART 1: Free advice but at what cost?

31st October 2016 by Rob Kelly

Categories: What's New?
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The case of Burgess and anor v Lejonvarn [2016] EWHC 40 (TCC) serves as a cautionary tale that even where a professional consultant renders services gratuitously, a tortious duty of care will still arise and continue to be owed to recipients of that professional’s advice or services.

The claimants, Mr and Mrs Burgess, purchased a property in London in 2010.  They were good friends with their former neighbour, the defendant, Mrs Lejonvarn.  The defendant was an architect.  In 2012, the claimants decided to landscape the garden of their property.  The project was split into two phases.  Under phase 1, the defendant procured a contractor to carry out earthworks (and did so gratuitously).  Under phase 2, and for a fee, the defendant undertook design work.  No contract was drawn up to regulate the relationship.  Over time, the claimants became concerned about the escalating costs and the quality of the services provided by the defendant.  Her involvement in the landscaping works was subsequently brought to an end, before phase one was complete, and an alternative landscape designer was brought in complete the works.

The claimants alleged that much of the works performed while the defendant was involved was defective.  They brought a claim against the defendant in contract and in tort for the difference between the actual cost to them of the landscaping works, including remedial works, and that which they were told it would broadly cost.  The maximum value of the claim was around £265,000.

The court held that no contract had been agreed between the parties.  However, by assuming certain responsibilities over the works for which a special skill was being exercised by the defendant as a professional, upon which the claimants had relied, the defendant owed a duty of care in tort which extended to protecting the claimants against economic loss in relation to both her advice and services.

Comment: The court recognised that a professional giving ad hoc advice or services on an occasional basis in an informal context is unlikely to attract the same outcome but the decision highlights the potential risks associated if a professional provides informal advice without entering into a formal contract.  Professionals should exercise great care when offering, in an informal context, what may be construed as professional advice and is, perhaps, more important in relation to domestic situations where this scenario is more likely to avise.

If you would like further information please contact Rob Kelly.

This article provides information and comments on legal issues and developments of interest.  The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such.  Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.

 

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 377871

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Rob Kelly
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Rob is an Associate Member of the Chartered Institute of Legal Executives (September 2009).  Rob also holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme and was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice.

Rob specialises in dispute resolution through litigation, arbitration and mediation, with particular emphasis on contractual disputes, claims involving allegations of professional negligence (which he has prosecuted on behalf of commercial and private clients and defended on behalf of insurers, re-insurers and Lloyd’s syndicates). He is regularly instructed in connection with substantial disputes involving contractual, professional negligence, contentious probate issues.  Rob also deals with contentious property and landlord and tenant issues.

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

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