Suspending contracts

To succeed with a negligence claim a claimant will need to establish a duty of care

Author:

Laurence Cobb
Rona Westgate

01 April 2019

Building surveying

Legal

The decision in Lejonvarn & Burgess & Anor [2017] EWCA Civ 254 in the Court of Appeal confirmed that an architect and project manager who provided professional services to friends and without entering a contract will owe a duty of care to carry out those services using reasonable skill and care. But in the attempt to sue for £265,000 for negligence, Mr and Mrs Burgess failed to substantiate their allegations of negligence.

The dispute arose out of a decision by the couple to landscape their garden in Hampstead. An initial quote from a landscape gardener was rejected as too pricey. Mrs Lejonvarn, a professional architect and friend offered to help find a contractor to carry out the works and to provide some project management services for free. It was intended that she would also provide some design for a fee, although she did not as the former friends fell out over the cost and quality of the work. The garden was completed by others and the Burgesses brought proceedings against Mrs Lejonvarn alleging professional negligence.

The court heard evidence from several witnesses before finding that Mrs Lejonvarn had not acted negligently during the project.

The Burgesses were criticised by the court for their 'scattergun approach' and the fact that much of their factual evidence was 'of limited relevance'. Their claim for negligent design and project management also lacked 'credibility and conviction'.

Drawings by Mrs Lejonvarn were not produced negligently, she did not breach her duty by failing to spot defects in the work, and her budget was reasonable and competent. Falling out over the project cost did not mean there was merit in the claim for the actual costs incurred against those the Burgesses said they would have incurred had they hired the original designer.

A particular aspect of the decision was the court's comments that it appeared that the Burgesses had assumed that poor work by the contractor must automatically be Mrs Lejonvarn's fault for not noticing the defect and getting it rectified.

The court noted that a claim against an architect for failure to undertake supervision duties with reasonable skill and care will need to comply with the principles set out in McGlinn v Waltham Contractors Limited [2007] EWHC 149 (TCC), including:

the frequency and duration of inspections should be tailored to the nature of works
depending on the importance of an element of the works, the architect may instruct the contractor not to cover it upuntil after inspection; this was unlikely tooccur in most cases as the architect should have timed inspections so as to avoidaffecting the progress of those works
the fact that work is covered up during inspections was not automatically a defenceto allegations of a failure to inspect, as the work's importance and the architect's reasonable contemplation of works being carried out needed to be taken into account
a reasonable inspection does not need the architect to examine every matter in detail.

The takeaway points from this judgment are as follows.

Evidence is crucial. Aspects of the Burgesses' case lacked credibility and Mr Burgess' evidence was argumentative and inconsistent with the documents.
Contemporaneous documentation is key. The court preferred notes made by Mrs Lejonvarn at the time that enabled her to establish the number of times she visited the garden to inspect progress whereas Mr Burgess gave evidence about what he thought was happening even while he was out of the country.
It is not sufficient to allege that asupervising architect should have spotted defects; there will need to be some evidenceas to the breaches and as to what should have been inspected, and when.
To succeed with a negligence claim a claimant will need to establish a duty of care and also demonstrate breach of that duty and that the breach caused a loss. There has to be linkage between the losses claimed and the alleged breaches.
Falling out over money by itself does not mean there has been a breach of duty.