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06 MAR 2019

BURGESS V LEJONVARN REVISITED

James Burgoyne of Brunel Professions flags that the danger highlighted by Burgess v Lejonvarn has not receded, despite Ms Lejonvarn winning her case

This case attracted attention when it arose in 2015, as it involved a professional being sued where there was no contract and no fee was provided for the advice. The latest position is that the Burgesses claim against Ms Lejonvarn has been dismissed.

The Burgesses and Ms Lejonvarn were longstanding friends and neighbours. The Burgesses planned extensive remodelling of their garden, and Ms Lejonvarn, who was a professionally qualified architect, offered to assist them with their project.

The project did not go well, with a significant overspend of £265,000. The Burgesses brought a claim of professional negligence against Ms Lejonvarn for the increased cost of works.

Ms Lejonvarn had not expected to be facing a professional negligence claim and had not arranged professional indemnity insurance.

Defence for Ms Lejonvarn made a preliminary application to the court to rule on whether she owed a legal duty to the Burgesses. The Technology and Construction Court (TCC) found that there was no contract, as many elements required for contract formation were absent (such as consideration, offer and acceptance etc). Critically however the Court found that Ms Lejonvarn DID owe the Burgesses a duty in tort. She was a professional acting in a professional context and the Burgesses had relied on her professional advice and judgement, allegedly to their detriment. As such the necessary components of a tortious cause of action were in place and the TCC allowed the Burgesses action to proceed.

It was this element of the decision which caused such concern, as it had implications for all professionals who gave advice in less formal settings or as a preliminary to an instruction. The sliver of comfort was that the TCC and subsequently the Court of Appeal were not applying this to any advice given in a social setting, but were specifically highlighting where a professional had agreed to provide advice or services on a professional footing, and knew that the recipient was relying on that advice or those services.

The Court of Appeal identified an assumption of responsibility on the part of the professional, which it described as a professional voluntarily answering a question or tendering skilled advice or services in circumstances where they know or ought to know that an identified person will rely on those answers or advice.

The Court of Appeal clarified that such a duty of care did not include a positive obligation to act, but rather an obligation to take reasonable skill and care if a service was actually carried out.

Professional indemnity insurance concern continued also. Professional indemnity insurance is arranged by the firm, rather than by individual persons. As such, if a practitioner becomes caught up in such a less formal situation, the matter may not be considered part of the professional practice of the firm employing them, and as such it may be outside of the cover of the firm’s professional indemnity insurance.

With the cause of action affirmed the latest is that the TCC has now made a decision on the Burgesses claim, and exonerated Ms Lejonvarn. Whilst having established that the architect owed them a duty of care, the Burgesses were unable to demonstrate that she had actually breached that duty and caused them loss. In the event the judge made critical comments of the assertions made, with the claim for alleged negligent design and project management described as lacking credibility and conviction, and problems with the claim for allegedly negligent budgeting highlighted. All in all it is being reported as a sweeping victory for Ms Lejonvarn.

Despite this victory, the cautionary notes remain. Whilst Ms Lejonvarn won her case, it should not be taken that the assumption of responsibility concern has been alleviated. The latest decision did NOT overturn the earlier finding that a duty of care was owed.

As such professionals should continue to consider carefully situations where they are asked for professional comment, and should not feel that they could not face a claim due to the absence of a fee or contract.

As always, and however much it may go against the grain, practitioners should be wary of being too helpful.

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James  Burgoyne

James Burgoyne

Director - Claims & Technical

Jim joined Brunel in 2009 and heads up the Technical and Claims Department. As well as representing Brunel on the ACE PII panel, he writes occasional pieces for us on insurance, risk and associated topics.

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