Why keeping it professional can help avoid negligence claims
A duty of care is owed by a professional when providing services free of charge in the course of a long running friendship.
In Burgess & Anor v Lejonvarn  EWHC 40 (TCC) the subject matter was an informal agreement between a professional consultant who performed various gratuitous services relating to her friend's landscape gardening project. The project did not go smoothly, the relationship broke down and her former friend claimed for the cost of remedial works.
The judge had to decide on a number of preliminary issues, including whether the conduct had given rise to a contract for the provision of services and whether the defendant assumed responsibility for these services and was under a duty of care to the claimant to perform them with reasonable skill and care.
The judge concluded that there was a lack of clarity over the terms (if any) upon which the defendant would provide the claimant with professional services, and that it was plain that there was no contract between the parties. The claim in contract therefore failed.
The court then looked at whether there had been a breach of a duty of care in tort.
The court confirmed that a professional person can owe a duty of care in respect of pure economic loss on a project. It also held that such liability is not restricted to advice given by the professional consultant, but can also cover other services that it performs.
There were a number of factors which pointed to this conclusion, all of which could prove to be decisive:
this was a significant project and not ad hoc advice
the project was being approached in a professional way
the services were provided over a lengthy period
it involved commitment on both sides
it involved significant commercial expenditure.
The case demonstrates the importance of documenting an agreement when providing professional services. A well drafted engagement letter would have brought much needed clarity, not only to the professional consultant’s role, but also to the contractual framework for the project more widely. The defendant failed to select the correct project team, failed to prepare designs that were needed, failed to exercise cost control and failed to inspect the works.
This case also serves as a further reminder to a professional person that they should never advise in a professional capacity without having PII cover in place.