Professionals offering free services to friends owe duty of care so should think twice, says expert

Litigation law expert Michael Fletcher of Pinsent Masons, the law firm behind Out-Law.com, was commenting after the High Court ruled that an architect and designer owed a duty of care to her former neighbours when she offered free services to them when they undertook a landscape gardening project.

Alexander Nissen QC, sitting as a deputy High Court judge, said that Basia Lejonvarn owed Peter and Lynn Burgess a duty of care to "exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager" on the landscape gardening project.

The Burgesses have claimed that Lejonvarn is legally responsible for "defective" work carried out by contractors on the project during her time of involvement with it. The couple are trying to claim up to £265,000 in damages from Lejonvarn, who denied she was liable for economic loss caused to the Burgesses by the contractors she had identified for them.

Alexander Nissen QC said Lejonvarn's duty of care could be established even though there was no contract between her and the Burgesses.

"It is established that in law a duty of care extends to the protection against economic loss in respect of both advice and any service in which a special skill is exercised by a professional," the judge said. "The duty can extend to negligent omissions as well as the performance of negligent acts. For present purposes, the relevant ingredients giving rise to the duty are an assumption of responsibility by the provider of the service coupled with reliance by the recipient of the service, all in circumstances which make it appropriate for a remedy to apply in law."

"A duty of care may be found to arise even in circumstances where services are performed gratuitously and in the absence of a contract. However ... in the absence of a contract it is important to exercise greater care in distinguishing between social and professional relationships," he said.

Fletcher said the case is "a healthy reminder to all professionals of the dangers of offering a 'freebie' to a friend".

"First, the court found that the emails exchanged prior to works commencing were too unclear to form a contract; they did not discuss remuneration, duration, or many of the other terms on which professionals usually contract," Fletcher said. "Operating without a contract can potentially expose a professional in a number of ways. For example, their liability will be unlimited as there will be no operative limitation of liability clause, which could have been helpful to Lejonvarn in this case given that she was not insured." 

"This further underlines the importance of having terms of engagement in place whenever providing professional advice or services," he said.

In the case, Lejonvarn had claimed that she had not given any advice to the Burgesses in respect to the design of their gardening project. She claimed that she had only performed services and that because she had not provided advice or sought a fee she did not owe a duty of care in respect of the economic losses claimed by the Burgesses.

However, the High Court rejected that argument.

"The judge reaffirmed that a duty of care can be owed whenever a professional exercises a 'special skill' to assist another person, even where no fee is to be charged and where there is no contract," Fletcher said. "He found that Lejonvarn had assumed responsibility for arranging the contractor to perform the earthworks and for project-managing the process, having held herself out as having sufficient expertise." 

"This is a salutary lesson in the dangers of helping a mate informally; even if not providing advice, if you are using your professional skills to assist someone then you could be liable for the economic consequences. The safest advice of all remains 'don’t do it'," he said.