If you don’t charge for your professional services and you don’t have a formal contract of engagement do you still owe a client a duty of care to provide those services with reasonable skill and care? This point was considered in the case of Lejonvam -v- Burgess and Another (2017) by the Court of Appeal.
Facts of Case
Mr & Mrs Burgess (“Mr & Mrs B”) wished to landscape and redesign the garden of a property they owned in North London. Their friend, and at one time neighbour, Mrs Lejonvam (“Mrs L”) had previously provided architectural services to Mr & Mrs B and they decided to proceed with the garden reconstruction under the direction and guidance of Mrs L. Although she was not a registered architect in the UK, Mrs L had qualified as an architect in the USA and had previously worked for two architectural practices in the UK.
Mrs L did not have a contract of engagement and did not intend to charge for the first phase of the professional services, although it was acknowledged that she would receive a fee if the second phase of the project progressed.
Disputes between the parties
As the project developed, disagreements arose between the parties as to the costs of the project and the quality and progress of the work. The relationship completely broke down and the friendship terminated, culminating in Mr & Mrs B commencing proceedings against Mrs L in both contract and tort in respect of the provision of alleged negligent services. The claim in tort was pursued on the basis that Mrs L had “assumed responsibility” in agreeing to provide professional services in her capacity as an architect and a project manager. Mr & Mrs B claimed that she was aware that they were relying on her to provide the services as she had confirmed in an email that she was responsible for acting in their best interests.
At first instance the Court held that although there was no concluded contract between the parties, Mrs L did owe a duty of care to Mr & Mrs B “to exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager”. The relationship was similar to a contractual arrangement, as she was providing professional services in a professional context, albeit without being paid. The Judge concluded “in the provision of supervision services in respect of construction work, a professional usually deploys a special skill and, in circumstances where there is an assumption of responsibility, a duty of care arises”.
Mrs L appealed against the decision that she owed Mr & Mrs B a duty of care and she further submitted that the Judge should have considered whether the loss allegedly sustained by them was reasonably foreseeable in all the circumstances. The Court of Appeal upheld the original Judge’s decision and held that a duty of care was owed irrespective of the absence of a contract or a lack of payment. Mrs L had agreed to provide professional services and had actually done so, and it was therefore appropriate, just and reasonable to find that a duty of care existed, bearing in mind that the relationship between the parties was not informal or social but clearly professional.
The Court clarified that the duty of care related to the services that Mrs L actually provided. Although she was not legally required to provide any services, if she chose to do so, she owed a duty to exercise reasonable skill and care in the provision of those services
Lesson to be learned
The case is a reminder that professional advisers should exercise extreme caution in providing “free” advice, even to colleagues, friends and neighbours. Being removed from the Christmas list is a far less severe sanction than the Court may impose!
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