When ‘friendly’ advice leads to court

5 February 2019 | By Christopher Reeves

The dangers of mixing work and friendship, particularly without a written contract, were demonstrated in the Burgesses v Lejonvarn case, says Christopher Reeves.

Christopher Reeves

Providing friendly advice to family or neighbours is not uncommon for construction professionals. But the case of Burgess and another v Lejonvarn should give pause for thought.

Architect Basia Lejonvarn advised Peter and Lynn Burgess on landscaping the garden at their £5m London home. But the couple blamed Lejonvarn for defects and cost overruns to the tune of £265,000 – and took her to court.

The Burgesses decided to landscape their garden back in 2012. A quotation of £155,837 plus a planting budget of £19,785 was quoted by Mark Enright of the Landscape Garden Company. The couple liked the plan,but regarded the quotation as being too expensive.

Lejonvarn was a friend and former neighbour of the Burgesses. She is an American-qualified architect although not registered in the UK. In spring 2013, she set up her own practice.

The Burgesses asked Lejonvarn for help. She secured a contractor to carry out the earthworks and hard landscaping and a quotation was provided. She intended to provide subsequent design work for the “soft” elements of the project, such as lighting and planting, for which she would charge a fee.

The project never got that far. The Burgesses were unhappy with the quality and progress of the work and Lejonvarn’s involvement came to an end in July 2013. The dispute went to court in 2016.

The Burgesses claimed that much of the work done during Lejonvarn’s involvement was defective, and that she was legally responsible for it. They claimed damages exceeding their original £130,000 budget for the works. The couple claimed Lejonvarn assumed legal responsibility for the professional services by acting as architect and project manager.

Lejonvarn argued there was no basis for the claim as she provided free advice on a friendly basis, in a “non-commercial, informal and social context”.

The question of responsibility for the advice made its way up to the Court of Appeal before the High Court then dealt with the amount of the claim.

The Court of Appeal decided in April 2017 there was no contract between the parties – but said that where a party voluntarily tenders skilled advice or services, in circumstances where they know that advice will be relied on by the recipient, then liability can arise. However, there were questions over the scope of Lejonvarn’s advice.

In short, the Burgesses needed to set out what services Lejonvarn actually provided. It was not enough to contend that she should have delivered certain services, if these were outside the scope of the retainer.

The case returned to the High Court in late 2018, where the Burgesses failed to make out their case, and could not actually prove that they suffered any loss.

It held that Lejonvarn did not breach any duty owed to the Burgesses, and said the scope of her duty was limited to those services she did provide. It also criticised the “scattergun approach” taken by the couple against Lejonvarn, alleging various breaches of duty, and the unrealistic nature of the claim.

The claim was dismissed, with the question of costs to be determined, unless agreed by the parties.

The case highlights the importance of having robust written appointment documents, as well as the risks in taking on work where the formalities are not clear – even for friends and family.

Christopher Reeves is a construction lawyer and founder of Mediation for Construction

Leave a comment