Last year the future looked a bit grim for Mrs Lejonvarn, a US qualified architect who had agreed to help (free of charge) Mr & Mrs Burgess transform their £5m London home.  In March 2017 the Court of Appeal had decided she owed them a duty of care in the same way as would any professional (doctor, dentist, lawyer, surveyor, financial adviser etc) providing a service to a client. The fact that she had no contract with them and she had not received any payment was irrelevant.

The project had, according to Mr & Mrs Burgess, gone terribly wrong and had cost them some £265,000 more than it should have. Mrs Lejonvarn was at fault and she had to pay them compensation. Mrs Lejonvarn did not agree.

More than 5 years later and following three separate court decisions, Mr & Mrs Burgess have walked away with nothing. Is this, therefore, a good day for the professional seeking to be a good Samaritan or are the press headlines missing something?

The facts (very briefly)

Mr & Mrs Burgess wanted to carry out some landscaping works at their London property.  They had received a quote of £155,837 plus a planting budget of £19,785 from a landscaping designer but considered the price too high.

They then asked Mrs Lejonvarn for help in the landscaping scheme which became known as the "Garden Project".  She secured a contractor who gave a quote for the earthworks and hard landscaping. Mrs Lejonvarn was going to do some of "soft" elements such as lighting and planting free of charge but the Garden Project never got that far because Mr & Mrs Burgess grew unhappy with the quality and progress of the work.  Their relationship with Mrs Lejonvarn came to an end in July 2013.

Mr & Mrs Burgess were clearly upset because they sued Ms Lejonvarn for £265,000 on the basis that she owed them a duty in contract and in the tort of negligence on the basis that she has "assumed responsibility"  for providing professional services as an architect and project manager. And under her watch much of the work done by the landscape contractor was defective. Hence she was liable to them.

At the first trial in November 2015 the judge (Mr Nissen QC) held that while there was no contract between Mr & Mrs Burgess and Mrs Lejonvarn, she did owe them a duty of care, i.e. that she would carry out her services with reasonable skill & care. The judge decided, "Mrs Lejonvarn owed a duty of care to Mr and Mrs Burgess to exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager on the Garden Project".

Mrs Lejonvarn decided to contest this finding so she went to the Court of Appeal which heard her appeal in March 2017. 

Pure economic loss - "assumption of responsibility"

In this case, the claim by Mr & Mrs Burgess was for what English law terms "pure economic loss" and this can only be recovered in certain circumstances. In Mrs Lejonvarn's case it was sufficient that she had assumed responsibility for the provision of advice for a duty of care to arise between her and Mr & Mrs Burgess. This is referred to (unsurprisingly) as the "test of assumption of responsibility".  As Lord Justice Hamblen observed:

"This is a case which concerned Mrs Lejonvarn voluntarily tendering skilled professional services in circumstances where she knew the Burgesses would rely on the proper performance of those services."

The Court of Appeal also concluded that simply because no contract existed did not mean there was no assumption of responsibility by Mrs Lejonvarn.  It also noted that the first judge has given regard to the fact that the Mrs Lejonvarn was giving her services gratuitously but nevertheless they were being provided "in a professional context and on a professional footing" and they were "freely accepted by the Burgesses".  This all gave rise to a "proximity" or closeness between the parties, i.e. Mr & Mrs Burgess were entitled to rely on the advice given by Mrs Lejonvarn.

There was also evidence that Mrs Lejonvarn hoped to be paid for her future work on the Garden Project and that this scheme could also help establish her practice. In other words Mrs Lejonvarn would or could gain some benefit from providing her free advice.

Duty applied only to the services actually carried out

An important caveat to what the Court of Appeal decided is that Mrs Lejonvarn's duty of care only extended to those services she did carry out, i.e. it was not an open ended obligation to carry out all the services of an architect or project manager. If she performed a service she owed Mr & Mrs Burgess a duty of care to do so with reasonable skill and care.

This approach was applied by the Court of Appeal to Mrs Lejonvarn's duty in terms of inspecting the works, producing designs for them to be priced, receiving applications for payment and cost control. In each case, the duty of care was expressed in terms of what services she did perform, i.e. there was no general obligation on her part to do any of this.

The Court of Appeal dismissed Mrs Lejonvarn's appeal by three judgments to nil, i.e. a unanimous decision against her.

So how much did Mrs Lejonvarn's owe Mr & Mrs Burgess?

In the next round of this legal boxing match, Mr Martin Bowdery QC had to decide whether Ms Lejonvarn had breached the duty of care by failing to exercise reasonable skill and care. If she had done so, he had to decide what financial compensation (i.e. damages) she had to pay Mr & Mrs Burgess.

Having considered the evidence before him the judge concluded that there was nothing to suggest that had Mrs Lejonvarn been allowed to continue with the Garden Project it would not have completed within budget. The claims that she had failed to produce an adequate budget were "particularly difficult to understand".

In addition, the judge could not understand how Mrs Lejonvarn could be liable for defective work carried out by the landscape contractor. There was also no evidence that she had failed to spot defects in the works.

As to her drawings the judge rejected the allegation that they had been produced negligently.

In summary the judge took the view that Mr & Mrs Burgess had taken a "scattergun approach" in their criticisms of Mrs Lejonvarn. This seemed to be a claim seeking to punish Mrs Lejonvarn rather than one seeking fair and reasonable compensation. The judge concluded by dismissing Mr & Mrs Burgess's claim and the press headlines followed (free from any mention of Brexit).

Observations

A professional person can owe a duty of care to carry out his/her services with reasonable skill and care even where there is no contract in place and no payment is received. Where the professional person fails to exercise such skill and care s/he will be liable to pay compensation. Mrs Lejonvarn had no contract with Mr & Mrs Burgess but the first judge (as upheld by the Court of Appeal) concluded she did owe them a duty of care in the law of tort.

The duty arises on the basis that the professional person "assumes" responsibility towards for the provision of the services. The other party (Mr & Mrs Burgess in this case) is entitled to rely on the professional carrying out those services with reasonable skill and care.

The duty may only extend to the services actually performed (or assumed) by the professional person and it depends on the facts (as always). For example, if the architect did not actually attend site to carry out any inspection of the works it will be difficult to argue that s/he assumed responsibility to do so. This is different to where a formal contract exists placing a positive obligation on the professional to inspect the works but that was not the case with Mrs Lejonvarn.

Even if the professional does owe a duty of care and did carry out a service you still need to prove that s/he broke that duty. A professional person does not owe an obligation to carry out a service with perfection but rather with reasonable skill and care. This point is sometimes missed by claimants and their advisers. In Mrs Lejonvarn's case Mr Justice Bowdery QC dismissed the Burgesses claim for this reason, i.e. they failed to prove any of the alleged breaches.

Mrs Lejonvarn achieved ultimate victory but this was more than 5 years after she left the Garden Project in July 2013. The time and stress suffered by her and Mr & Mrs Burgess of this 5 year legal boxing match can never be fully quantified. In contrast the financial cost to Mr & Mrs Burgess can be and the next step is going to be deciding what their legal bill is. After three separate court decisions one can assume this will be high, i.e. unless insurers are picking up the legal bill Mr & Mrs Burgess are likely to have to pay their own legal costs and a significant proportion of Mrs Lejonvarn.

As for the modern day good Samaritan while the saga endured by Mrs Lejonvarn has received much positive press coverage it is important to understand that under English law the good Samaritan can still be liable to pay compensation if things go wrong. The fact that there is no contract in place and no payment is received does not mean there is no liability. In conclusion, if you are a professional person do think twice before crossing the road to give some friendly advice to your neighbour.