Architect – Professional negligence – Duty of care — Defendant being involved in landscaping project for claimants – Dispute arising over increasing costs of project – Preliminary issues arising – Whether contract being concluded between parties – Whether defendant owing duty of care in tort to claimants – Nature and extent of any duty in tort – Whether budget being agreed – Preliminary issues determined
The claimants, who were married, were the owners of 11 Highfields Grove, London N6. The claimants and the defendant were good friends, having previously been near neighbours. The defendant had qualified as an architect in New York and provided architectural services in London, although she was not a registered architect entitled to describe herself as such in the UK. The claimants wished to landscape their garden and obtained a quote from a landscape gardener which they thought was too expensive. Therefore they asked for professional assistance from the defendant who helped to arrange for another company (H) to carry out the work at what was estimated to be a lower price. H and its subcontractor commenced work but the claimants emailed the defendant to express concerns about the rising costs of the project. Following an exchange of emails, the defendant’s involvement in the project came to an end. The claimants continued with the work and completed the project.
They then commenced proceedings against the defendant on the basis that much of the work done during the period of her involvement was defective and that she was legally responsible for it. The defendant denied responsibility for the quality of the work carried out and said that she had not been responsible for procurement, project management, budgeting and cost control. The claimants sued the defendnt both in contract and in tort and claimed, as damages, the difference between the actual cost of the project, including remedial works, and that which they were told it would broadly cost. The maximum value of the claim was around £265,000.
Preliminary issues arose for determination: (i) whether a contract had been concluded between the parties; (ii) assuming that the defects specified in the particulars of claim existed, whether the defendant owed any duty of care in tort and, if so, the extent of that duty; and (iii) whether a budget of £130,000 for the project had been discussed between the defendant and the claimants prior to the defendant asking for money for materials and a down payment.
Held: The preliminary issues were determined.
(1) On the evidence, it was impossible to draw out any form of offer and acceptance from the e-mail exchanges between the parties. There had been no agreement. Leaving aside the absence of discussion about remuneration, nothing had been said about duration of services, provision for their termination or any other clauses of the type typically to be expected in a professional’s terms of engagement. Moreover, the parties had not intended to be legally bound by a contractual relationship. Even if there had been an offer and acceptance, there had not been any consideration for such an agreement. There had simply been no discussion about payment. The contention that the parties had concluded a contract was hopeless and the claim in contract failed: G Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd’s Rep 25, Tekdata Interconnections Ltd v Amphenol Ltd [2010] 1 Lloyd’s Rep 357 and Assuranceforeningen Gard Gjensidig v International Oil Pollution Compensation Fund [2014] EWHC 3369 (Comm) considered.
(2) It is clear from the authorities that no distinction was drawn between the provision of advice and the provision of services where a special skill was exercised. It was established that in law a duty of care extended to the protection against economic loss in respect of both advice and any service in which a special skill was exercised by a professional. The duty could extend to negligent omissions as well as the performance of negligent acts. The relevant ingredients giving rise to the duty were an assumption of responsibility by the provider of the service coupled with reliance by the recipient of the service, all in circumstances which made it appropriate for a remedy to apply in law. A duty of care might be found to arise even in circumstances where services were performed gratuitously and in the absence of a contract. However, in the absence of a contract, it was important to exercise greater care in distinguishing between social and professional relationships. On the evidence in the present case, the defendant had agreed to and had provided a series of professional services for the claimants in respect of the project. She had been heavily involved in the project. All the services had been provided in a professional context and on a professional footing. The claimants had freely accepted her services. The relationship between the parties had been akin to a contractual one even though no contract had been concluded. There had been an obvious and sufficient relationship of proximity between them. The defendant had been more than a conduit or facilitator between the claimants and H and its subcontractor. The defendant had assumed responsibility to the claimants for performing professional services in respect of the project, and they had specifically relied on her for that purpose. The circumstances were such that it was appropriate for a tortious remedy to apply in law. The defendant had owed a duty of care to the claimants to exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager on the project: Galliford Try Infrastructure Ltd v Mott Macdonald (2008) 120 Con LR 1 and Robinson v PE Jones (Contractors) Ltd [2011] 1 EGLR 111 applied; Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, Murphy v Brentwood District Council [1991] 1 AC 398, Henderson v Merrett Syndicates [1995] 2 AC 145, White v Jones [1995] 2 AC 207, Storey v Charles Church Developments plc (1995) 73 Con LR 1, Lidl Properties v Clarke Bond Partnership [1997] Env LR 662, Payne v John Setchell Ltd [2002] BLR 498 and Mirant-Asia Pacific Construction (Hong Kong) Ltd v Ove Arup & Partners International Ltd [2004] EWHC 1750 considered.
(3) On the evidence, the defendant had carried out all of the services alleged, except for the planning of site commencement, preliminaries and initial strip out. The defendant had to be judged by the standards of a reasonably competent architect and project manager but not by the standards of a structural or geotechnical engineer as she had never professed to be an engineer and the claimants had known that she was not. To the extent that the services which she had agreed to undertake had involved a degree of specialist expertise beyond the remit of a reasonably competent architect or project manager, the defendant was entitled to rely on the specialist experience of others in respect of such matters provided that she had reasonable grounds for doing so. Furthermore, a budget of £130,000 had been discussed and had been the subject of detailed calculation by the defendant.
Seb Oram (instructed by Mayo Wynne Baxter Solicitors, of Sussex) appeared for the claimants; Louis Flannery and David Sheard (respectively of and instructed by Stephenson Harwood LLP) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read the transcript of Burgess and another v Lejonvarn
