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Proceed with caution when offering professional advice as a favour

An architect who offered advice to friends regarding the redesign of their garden and who was then subsequently sued for costly over-runs and mistakes did not act negligently, the High Court recently ruled.

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The decision, which saw the architect facing a £265,000 claim, is welcome but does not change the law. Whether substantial professional advice is given freely or charged without entering into a formal contract, a duty of care remains.

In 2013 Basia Lejonvarn, a US-qualified architect, agreed to help her friends and neighbours, Peter and Lynn Burgess, with the redesign of their garden in Highgate, north London. She stepped in to help when the Burgesses were unhappy with the £150,000 quote from one of the capital’s smartest landscape gardeners, and to work free of charge — a favour for a friend.

Basia Lejonvarn was taken to court by her former friends

Lejonvarn oversaw the garden project including preparing drawings and design, advising on the procurement of contractors and regular site visits. Yet the relationship soon began to fall apart. The Burgesses issued proceedings against Lejonvarn for £265,000 — the additional costs they claimed to have incurred as a result of her alleged professional negligence.

The court had previously determined whether Lejonvarn owed the Burgessees a duty of care for the services she performed, or whether this might be considered ad-hoc advice without legal responsibility. The court decided that she did owe a duty of care and that it would be wrong to categorise the advice she gave as a favour without legal responsibility because it extended over many months, was provided in detail and involved the Burgesses spending a substantial sum of money. The court had not, however, decided whether she had breached that duty of care and been negligent.

The High Court delivered its decision in November and found that Lejonvarn had indeed acted professionally, had not been negligent and was not in breach of her duty of care. Her case was helped enormously by the meticulous diaries she kept and the credibility of her evidence.

Professionals from all walks of life are often asked for their opinion — whether a friendly chat with a neighbour over the garden fence, a conversation at a dinner party, or with mates down the pub. The conversation that starts “Oh, you’re a construction lawyer . . . .we have fallen out with our builders, what should we do?” will be familiar to many.

This case does provide some comfort here: informal advice given by professionals, even if patently bad advice, is unlikely to result in a claim.

But where that advice is more detailed and involved, a duty of care is owed by the professional. This can, as Lejonvarn discovered, put a professional in a very difficult position particularly as no contract is likely to exist.

It would be a shame if professionals were to feel that they no longer can help friends and neighbours, but they should tread carefully. Confirm in writing or by email what you have agreed to do for your friends or neighbours and keep a diary of activity or advice undertaken. If the worst does happen the most you are likely to lose is a friend and not the shirt off your back.

 

First featured in The Times on 10 Jan 2019.