Free Advice – But Can You Prove Breach Of Duty?

The Technology and Construction Court (TCC) has dismissed a well-publicised claim for professional negligence brought against an architect, Mrs Lejonvarn, who agreed to supervise a garden-landscaping project for free for her friends. In 2017, during a trial of preliminary issues, the Court of Appeal had determined that a duty of care had arisen to supervise the project and oversee expenditure against the budget, despite the informality and gratuitous nature of the instruction. The case had served as a reminder and warning to professionals that even when they offer advice for free, they can still be subject to a duty of care.

Now though, having heard all the evidence during a full trial, the TCC has dismissed the claim on the basis that while Mrs Lejonvarn might have owed a duty of care to the Burgesses, she did not breach it.

Breach of duty

The Court of Appeal had previously found that Mrs Lejonvarn did not have to provide any services to the Burgesses at all, but where she had provided services, she was obliged to perform them with reasonable skill and care. In particular, the Court of Appeal had held that Mrs Lejonvarn owed a duty to exercise reasonable skill and care in respect of:

Project managing the project and directing, inspecting and supervising the contractors; Preparing designs for a budget to be estimated; Advising and directing the Burgesses regarding payment; Exercising cost control by preparing the budget and overseeing expenditure. Mr Bowdery QC could not, on the evidence, find that Mrs Lejonvarn had in fact breached the duty of care she owed to the Burgesses in this regard.

While Mr Bowdery QC found that Mrs Lejonvarn had overstated her skills and experience to the Burgesses before the project, she was an honest witness and he considered that the Burgesses had tried to blame her for every conceivable defect. The Burgesses alleged that Mrs Lejonvarn's duty to inspect the site extended to inspecting the structural work and groundwork for non-compliance. In reality, she only attended the site eight times after the project began and this was mainly to discuss the removal of birch trees, the lawn, the general progress of the project, and the contractors' invoicing, all of which, the Court found, she had performed entirely competently. Her recommendations to the Burgesses to pay contractors had also been reasonable.

The Burgesses, despite having finished the project and having had five years to prepare their claim, could not...