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Giving advice could lead to legal action, even when it is free

Even when it is free, giving advice could lead to legal action

18 April 2019

The idea that giving a friend free advice could land a practice in court might well alarm many architects. But providing advice or assistance without any contractual arrangement is enough on its own to create a professional duty of care.

This was the judgement of the UK’s Technology and Construction Court, a decision upheld when the architect concerned appealed against the original ruling.

However, there was some consolation for architect Basia Lejonvarn in this case: the negligence claim against her that led to this judgement was dismissed on every count in December 2018.

Lejonvarn was not found to have been in the wrong. But the duty of care decision stands, in what the judge accurately described as ‘a cautionary tale’.

The dispute arose over advice given by Lejonvarn to her neighbours and (former) friends the Burgesses concerning a planned garden landscaping project. Lejonvarn had agreed to assist and – for no fee – had found a contractor to carry out earthworks and landscaping.

There was a plan for Lejonvarn to provide some design work at a later stage for a fee, but the relationship had broken down before this happened, following the Burgesses’ complaints about the contractor’s work.

Lejonvarn’s neighbours launched a claim against her over the contractor’s defective works on the grounds that she had assumed responsibility for the provision of professional services as architect and project manager.

Offering free advice can create a duty of care if you are known to possess the ‘special skill’ of a professional in construction.

Claims were brought in contract and in tort (civil law where redress is sought for some sort of ‘wrong’). And while it was clear to the court that there was no contract between the parties, the judge found that Lejonvarn did owe a duty of care in tort to exercise reasonable skill and care in the provision of her professional services, irrespective of the absence of any contract or any payment.

Crucially, the judge found that there is no distinction between the provision of advice and the provision of services where a ‘special skill’ is being exercised, such as the special skill that construction professionals are expected to have.

Commenting on the ruling and the court’s later finding that Lejonvarn had not been negligent, Emily Monastiriotis and Jonathan Spencer of Simmons & Simmons observed that construction professionals can perhaps find some reassurance from the fact that establishing a duty of care is one of many other hurdles a claimant must overcome in order to attempt to win a professional negligence claim. The claimant must also show a breach of that duty of care, and identify actual losses suffered as a result of the breach.

While Lejonvarn was found to have had a duty of care, she was not found to have breached it in this case.

The Court of Appeal also chose to highlight the distinction that the duty of care is not to provide services, but is a duty to exercise reasonable skill and care when professional services are being provided.

Monastiriotis and Spencer offer some cautionary advice to architects.

"As tempting as it might be to offer professional services to friends and family, there is always a risk if the arrangement is not properly formalised or recorded at all," they point out. "As highlighted in this case, construction professionals can still be found to owe a duty of care in tort in the absence of a contractual arrangement."

Their advice is quite simple.

"Regardless of the size of the project, or the ‘client’, construction professionals should ensure that they have a written contract in place. It should clearly set out the terms and scope of their appointment to avoid or narrow the scope of any disputes that may later materialise."

Thanks to Emily Monastiriotis and Jonathan Spencer of Simmons & Simmons LLP.

Text by Neal Morris. This is a Professional Feature edited by the RIBA Practice team. Send us your feedback and ideas

RIBA Core Curriculum Topic: Legal, regulatory and statutory compliance.
As part of the flexible RIBA CPD programme, Professional Features count as microlearning. See further information on the updated RIBA CPD Core Curriculum and on fulfilling your CPD requirements as an RIBA Chartered Member.

Posted on 18 April 2019.


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