Fallout from failed favours

Words:
Angus Dawson

Remember the architect who did some free work for friends and then they fell out? How did it end?

It’s unfortunate when something that starts out as a favour turns into an ordeal. Following two costly trips to the High Court and one to the Court of Appeal we have finally seen the conclusion of a long running dispute involving a favour that turned into a full on legal saga. 

In 2013 Mr and Mrs Burgess asked Mrs Lejonvarn, an American qualified architect, a friend and former neighbour, for help with the landscaping of their garden. Mrs Lejovarn duly obliged and secured a contractor to carry out the earthworks and landscaping and planned to carry out design work for the ‘soft’ elements (planting and lighting) later on in the project. Mrs Lejovarn’s services for the initial stages were carried out for no fee but it was agreed that Mrs Lejonvarn would be paid a fee for the soft elements. 

Things did not go well. The Burgesses were unhappy with the quality and progress of the work and Mrs Lejonvarn’s involvement in the project came to an end. The works were subsequently finished, but much later and at a significantly greater cost than the Burgesses originally anticipated. The Burgesses tried to recover some of the additional costs from Mrs Lejonvarn.

The first question that came before the courts was whether there was a contract between the Burgesses and Mrs Lejonvarn. The courts decided there was no contract so the breach of contract claim failed. How­ever, in the courts’ opinion Mrs Lejonvarn had ‘assumed responsibility’ for her services and a relationship akin to a contractual one had arisen. While she did not have to carry out the services of an architect and project manager (and could not be required to do so), if she did provide services then she had to exercise reasonable skill and care when doing so. Why? Even though she was not being paid a fee she had agreed to provide services on a professional, rather than informal or social footing, and she knew that the Burgesses were relying on her to perform those services adequately. As a result, she was bound to the same standard she would have been held to if she was being paid a fee. 

Mrs Lejonvarn was bound to the same standard she would have been held to if she was being paid a fee

The most recent set of court of proceedings was to decide whether, on the facts, Mrs Lejonvarn had failed to act with reasonable skill and care when delivering the services she did. A five day hearing and 15 witnesses later the court decided that she had not breached this duty and the Burgesses claim was dismissed. 

As part of the decision, the judge helpfully highlighted that, given the nature of the works involved, Mrs Lejonvarn was entitled to rely on the skill, experience and expertise of the ‘experienced, competent specialist groundworks contractor’ to decide how best to carry out and implement the original garden designer’s design. He also reiterated that un-remedied defective works does not automatically translate into a claim that the contract administrator is negligent for not identifying them and having them remedied.

The latest decision is (another) reminder to avoid blurring the line between friendship and work and, in the work sphere, to document terms of engagement. If you are asked to provide advice or an opinion in a non-work context, be clear that any views/opinions you provide are not in a professional capacity and that they cannot be relied upon. In the professional context, clearly set out the services that will be provided and the standard of care that will be used. If you are expecting remuneration, make that clear too, including the basis on which you are to be paid. Anything which is left unclear may come back to haunt you at a later date, even among ‘friends’. 


Angus Dawson is a partner at Macfarlanes LLP


 

In plain English

Reasonable skill and care

When providing services a consultant is under a duty to act with reasonable skill and care. In a contract this is either because the Supply of Goods and Services Act 1982 implies a term into it or because the contract contains an express provision to this effect. It is possible for the contractual reasonable skill and care requirement to be ‘enhanced’ to what is often called a ‘project specific’ duty of care. So rather than the reasonable skill and care of a reasonably competent person of the same profession it is the reasonable skill and care of a reasonably competent person of the same profession experienced in providing services for projects similar to the project in question. The common law test for negligence provides that a consultant is not negligent if they carry out their work to the same standard that a reasonably competent person of the same profession could have met. Given the reliance of skill and judgment a consultant does not usually guarantee a particular outcome or result (unless there it has agreed to a fitness for purpose obligation). 

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