The pitfalls of friendly advice…
Burgess & Burgess vs Lejonvarn  EWHC 40 (TCC)
Ms. Lejonvarn, an Architect and the defendant in this matter, gave the Burgesses, her neighbours and (presumably former) friends, architectural and project advices in the revamping of their garden. The project was less than successful and the Burgesses sued Ms Lejonvarn claiming that she was legally responsible for architectural design, procurement, project management and supervision, budgeting and cost control of the project and that the services provided were defective and claimed damages. The claim was founded on the dual theories of contract and tort. Ms Lejonvarn, less than pleased that her generosity of neighbourly spirit was being used as the proverbial stick to beat her, denied the claim.
In relation to the claim in contract – where the predominance of the evidence was in the form of email exchanges between the parties – the Court found as follows:
- The email exchange had not concluded in a contract.
- There was no clear form of offer or acceptance
- There was no clear basis upon which the defendant was being retained by the claimants where there was no discussion of the duration of the services, how they might be terminated, or the presence of other clauses typically found in the terms of engagement of a professional.
- There was no evidence of an intention to create legal relations where the parties did not discuss entering into a contract.
- There was no discussion about present remuneration (the Court particularly emphasised the basic legal tenet that a promise is not binding as a contractual obligation unless it is supported by consideration); although, there was some discussion in the emails as to payment for future services to be provided.
- The claim in contract, therefore, failed.
Concerning the claim founded in tort, the Court opined as a foundation principle that, since the losses claimed were purely economic losses, in order to succeed with the claim, it would have to be established that Ms. Lejonvarn had assumed responsibility in respect of the services and that the Burgesses had relied on Ms. Lejonvarn to provide these services with reasonable skill and care.
The Court, referring to Henderson v Merrett, found that no distinction should be drawn between the provision of advice and the provision of services where a special skill is exercised and that a duty of care may be found to arise even in circumstances where services are performed gratuitously and in the absence of a contract. However, in the absence of a finding of contract, the authorities stress the importance of exercising greater care in distinguishing between social and professional relationships.
Adopting the terminology of Mr Justice Akenhead in Galliford Try Infrastructure Ltd v Mott MacDonald Ltd (2008) 120 Con LR 1 (TCC), the Court concluded that “the relationship between the parties was akin to a contractual one even though no contract had been concluded” where the Burgesses were Ms. Lejonvarn’s “clients”, albeit not in a contractual sense, and there was an obvious and sufficient relationship of proximity between them as a result and where Ms. Lejonvarn was and/or should have been, well aware that the claimants were relying on her to perform those services properly.
The case emphasises the nuggets of wisdom contained in Frost’s poem “Mending Wall”. Click here for some uplifting genius.