Friday, 4 January 2019

Burgess & Anor v Lejonvarn (UK) Ltd

[2018] EWHC 3166 (TCC)

We reported on this case in Issues 188 and 203.  The Burgesses had asked Mrs Lejonvarn, a friend and former neighbour, to assist with a landscaping scheme. These decisions established that a duty of care may be found to arise even in circumstances where services are performed gratuitously and in the absence of a contract. However, the decision had not actually considered whether or not Mrs Lejonvarn had breached that duty of care. Judge Bowdery QC noted that the CA had: “made it clear that a professional providing gratuitous services was liable for what he or she does but not for what they fail to do”.

After hearing the evidence, the Judge was clear that the case against Mrs Lejonvarn should be dismissed. He was critical of the “scattergun approach” to the claims and evidence taken by the Burgesses, noting for example that they had been unable to identify any drawings produced by Mrs Lejonvarn which had caused any defective construction or any advice which was given negligently. Further, Mrs Lejonvarn was “not a design and build main contractor subcontracting the construction work to JL4 and, in turn, London Piling. She was an architect fully entitled to let them get on with their works to produce the necessary retaining walls and finished levels.” Although the case was dismissed, the Judge went on to consider the loss and damage allegedly caused by the alleged breaches. It is worth noting his comments on what turned out to be a global claim:

“I consider that the Claimants could and should have attempted to identify what actual, if any, losses were suffered as a result of the breaches alleged. To claim that the Defendant is liable for this global claim offends common sense and I find it wholly unsupported by the evidence which I have heard and read. The agreed budget was a realistic and practical budget. When the Defendant left the project, I have seen no convincing evidence why the Defendant, if allowed to finish the project, could not have completed the garden within budget with any changes and variations priced separately and to the satisfaction of the Claimants. The Defendant had the experience and expertise to comp[l]ete this project if the agreed budget had been respected and had been acknowledged by the Claimants.”

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