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PART 1: Free advice but at what cost?

31st October 2016 by Rob Kelly

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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
  • “Rob Kelly has been absolutely exceptional in resolving this litigation and so thorough in everything and basically gave the opposition a masterclass of his work that he is so good at.”

    Paul Jeffcoate - Contentious Probate Client

  • “I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”

    Dan Collins

  • “ I just wanted to thank you for your great work on the professional negligence case and other cases you have represented Indian Ocean and Tiien through the last few years.”

    Mehdi Vahdati, Director and Proprietor - Indian Ocean (Bournemouth) Limited

  • “A case that was initially very straightforward became difficult and, for me, very frustrating. Rob Kelly's calm, lucid and very professional advice and planning were invaluable and led to a good outcome.”

    Don Young

  • “Their Fee Management was exemplary and the expertise provided by Rob was exactly what we required.”

    Sunseeker London Limited

  • “I've worked with a fair few lawyers over the years and Rob Kelly is the most on the ball and efficient lawyers I've ever come across. I'm looking forward to working together for many years to come.”

    Roger Woodall CEO - Diamond Sporting Group

Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.

Contentious wills, probate and trusts

More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years.  He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.

Rob’s practice embraces:

  • Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
  • Disappointed beneficiary claims
  • Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
  • Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
  • Proprietary estoppel claims
  • Disputes about the proper construction, and rectification, of wills
  • Caveats
  • Professional liability claims arising from the preparation of wills and trusts and the administration of estates

He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.

Property disputes

The other side of Rob’s practice is contentious property work.  This embraces:

  • Residential and commercial landlord and tenant disputes
  • Disrepairs
  • Repairing covenants
  • Possession claims
  • Lease termination and lease forfeiture
  • Dilapidations
  • Service charge disputes
  • Interpretation and enforcement of leasehold covenants

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.

Rob is an Associate Member of the Chartered Institute of Legal Executives.  He holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006, was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice, and is a member of the Civil Mediation Council.

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