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Giving free professional advice? You may still owe a duty of care

07 August 2017

In Lejonvarn v Burgess (2017), the Court of Appeal has confirmed that a person who provides professional services to friends might do so on a “professional basis” and thereby assume a duty of care to them.

Mrs Lejonvarn (an architect and project manager) took on management of a project to re-landscape her friends’ garden (Mr and Mrs Burgess). The parties never signed a contract for her services but construction began, which Mrs Lejonvarn supervised.

The project did not go according to plan and the relationship between the parties broke down. Her former friends then claimed against Mrs Lejonvarn for the cost of the remedial works.

In the first instance the court decided that whilst Mrs Lejonvarn had no contractual liability to Mr and Mrs Burgess (because there had been no offer, acceptance or consideration) she did owe them a duty of care in tort that covered the design and management of the landscaping project.

Mrs Lejonvarn appealed against the decision. The Court of Appeal agreed with the first instance judge and held that Mrs Lejonvarn had assumed responsibility for overseeing the project and therefore had provided services to her friends.

Interestingly, the fact that the parties had not concluded a formal contract, and that Mrs Lejonvarn was to receive no payment for this initial stage of the project, did not change the court’s view – the services for which Mrs Lejonvarn had assumed responsibility were clear and identifiable.

Mrs Lejonvarn was only under a duty to perform the services with “reasonable skill and care” and was not under an obligation actually to provide the services. So, if Mrs Lejonvarn performed the services without reasonable skill and care Mr and Mrs Burgess had a claim against her, but if she had not performed the services at all they would not have had a claim.

Although this case revolves around its specific facts, the principles set out in it are important for professionals e.g. accountants, lawyers, architects, surveyors, doctors, dentists, and vets, who might owe a duty of care when giving free advice to friends or family. They could also affect businesses which offer free advice in order to win new custom or improve client relations.

The judgement emphasises that professionals need to take care. Individuals and businesses alike should not assume that they will not incur any liability merely because they provide advice or services for free and outside of a business context. The question will be whether such professionals are using their expertise and whether the person to whom such advice is given will be relying on this.

Sophie Martyn, Legal 500-rated partner in our corporate & commercial department, has a wide experience of mergers & acquisitions, business start-ups, reconstructions, joint ventures, corporate finance and corporate governance. She is praised by clients for delivering an “excellent service” and providing “good solid advice”. 

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