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19th December 2018

All I want for Christmas…

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...is to win a £265,000 negligence claim against my ex-friend: Claimants lose war in negligence claim against architect friend who provided them with free professional advice.

After having won in both the Court of First Instance and the Court of Appeal, claimants, Mr and Mrs Burgess, ultimately lost their claim for £265,000, an amount that they purported had been incurred as a result of negligent advice from their friend in respect of a bespoke garden project. 

Basia Lejonvarn, a US-qualified architect, agreed to help her friends with their landscaping venture on a gratuitous basis, which saw her, amongst other things, securing a contractor for earthworks and hard landscaping, preparing the site for these initial works, providing an estimate for the project, visiting the site twice a week, and producing drawings under her professional name in order to ensure that the project was priced and constructed accurately.

However, despite a barrage of allegations as to the poor quality of Lejonvarn’s contributions, the court ultimately decided that the defendant’s involvement was not the cause of the claimants’ increased spend (the £265,000 claim represented the difference between Lejonvarn’s estimate for the project and the actual amount incurred).  In short, she had not been negligent in her provision of services.

So, given that the claimants lost, where is the cause for concern? 

Clearly, it is fair to say that the defendant’s services reached far beyond the sort of impromptu “words of wisdom” that one may expect from a suitably qualified friend over a glass of mulled wine and the case made clear that when an individual voluntarily offers advice or services in circumstances where that person knows that such advice will be relied upon, this voluntary assumption of responsibility gives rise to a duty of care to the recipient.

The fact that the extent of the defendant’s contribution to the project was far more integral than a throwaway comment offered in between mouthfuls of mince pie was further cemented by her own references to the Burgesses as her ‘clients’ and to their relationship as one of ‘professional boundaries’.  This evidence was persuasive in the judge’s interpretation, particularly at Court of Appeal stage, that Lejonvarn’s involvement had given rise to a duty of care to the Burgesses.

…But there was no contract between the parties…?

The case emphasised that tortious obligations are necessary irrespective of whether a contract is in place because society demands certain standards of conduct. 

Although the lack of any contractual agreement did mean that Lejonvarn had no positive obligation to provide services as an architect and project manager (and therefore no obligation to offer further advice or warnings), contract or no contract she had a duty to act with reasonable skill and care in performing the services that she nonetheless chose to carry out.  In essence, she was liable for what she did, but not for what she failed to do.

Why was the defendant found not to be negligent?

In terms of analysing the quality of the defendant’s work, this question is not relevant for these purposes.  However, it is important to note that the following behaviour of the claimants during this case was persuasive in the judge’s finding that Lejonvarn had not fallen below the required standard of care:

  1. Whilst the claimants were argumentative and inconsistent, the defendant was composed, clear and concise. 
  2. The claimants’ case was unclear and contained many disputes of fact coming from a scattergun entourage of witnesses whose evidence often proved only peripherally relevant. 
  3. Rather than attempting to identify actual losses incurred as a result of the alleged breaches, the claimants put forward a global claim for compensation that was remote, unquantifiable, and suggested that the claimants sought to punish the defendant rather than seek fair and reasonable recompense.

These three points do beg the question of whether the result in this case may have been different if the claimants’ claim had not been so unrealistic and their conduct had been less disruptive and this is a scary ‘wave-the-red-flag’ reality for individuals who offer free advice to people they know.

What words of warning should we take away?

The claimants did not lose this case because this was deemed to be a “friend helping out friends” scenario.

Even in the absence of a contract, a tortious duty of care will still be established if you offer advice knowing that the recipient will rely on it.  Duties of care can be breached and when this happens, hefty damages can be the price. 

Many would say that providing free professional advice to friends is a minefield that should ideally be avoided.  However, if you do find yourself giving a friend advice over Christmas nibbles this December, keep it merry, keep it bright, but most importantly, keep it light.

For further information contact Joe Taylor or Danielle Eley on 01223 461155 or click to email Joe or Danielle