However, it is also is a very good demonstration of how the TCC will firmly reject a claim against a construction professional in cases where a Claimant fails to properly particularise its allegations and provide evidence in support.
The defendant, Mrs Lejonvarn, is an American qualified architect and had worked for a couple of firms in the UK, though was not registered as an architect in the UK. She had volunteered to assist two friends (the claimants) with a significant garden landscaping project at their residential property in London. She did not charge for her initial advice. The claimants, however, became unhappy with the quality and progress of the work and ended the defendant’s involvement in the project. The claimants subsequently brought a claim against the defendant, in tort and contract, for the increased costs of completing the works in the sum of £265,000.
At an earlier trial of a preliminary issue, it had been established that there was no contractual duty as the relevant elements of a contract were not satisfied – there was no offer and acceptance, no intent to create legal relations, and so on. However, it was held that the defendant did owe a duty of care in tort to the claimants despite the fact she had provided her services free of charge. The Court of Appeal subsequently agreed that a duty of care had arisen as the defendant had assumed responsibility for the project and possessed the special skill of an architect. However, the Court of Appeal held that the scope of the tortious duty in respect of a free service was limited to exercising reasonable skill and care in performing the services the defendant had actually provided. It did not extend to any services she failed to perform.
Having established that a duty of care had arisen, the TCC was asked to decide whether that duty of care had been breached by the defendant. The judge criticised the claimants’ “scattergun approach” to the allegations, noting they “lacked credibility and conviction”. For example, they failed to identify any drawing produced by the defendant which had caused defective construction.
The claimants’ approach to loss was also criticised in that they had failed to identify what actual, if any, losses were suffered as a result of the alleged breaches with the judge commenting “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 claimants’ claim was dismissed as the court held that the defendant had not breached any duty owed to the claimants and, in any event, the claimants had failed to prove that they had actually suffered any loss.
What can we take from the decision?
- The most obvious lesson is the need to be very careful when offering professional advice to friends and family. A duty of care can arise and you can assume responsibility for an economic loss suffered even if you have received no payment for your services. Note, however, that duty of care only relates to positive acts.
- The absence of a formal written contract does not mean a contractual duty cannot arise. It can if the relevant elements of a contract can be satisfied.
- Claimants need to be specific when quantifying the losses they allege flow from the breaches alleged.
- The decision serves as a reminder of the principle set in McGlinn v Waltham Contractors Limited i.e., if workmanship is not identified by an architect during an inspection this does not automatically imply a breach of the architect’s duty of care. Proper particularisation of what should have been identified by the architect during inspection is required and also the timing of that inspection.