Blured text with focus on RECCOMENDATION

Consider the following scenario. A qualified architect recommends a building company to some old neighbours with whom she has been good friends for around 10 years, for the purposes of some landscaping work which they wish to carry out in their garden. She gives advice on the costs which will be involved and the scope of the works which the company will need to carry out. She doesn’t make her recommendations as part of any contractual relationship. She isn’t paid by the friends for the recommendations or, for that matter, by the company. Over the time that she has known them, the friends have displayed their generosity to her in what may be thought of as equivalent ways, helping to provide office space for her new architectural venture and the graphic design for her new business’ logo, all at no cost. On the face of it, this may sound like an example of someone giving an informed recommendation and advice to some friends who lack the same experience in such matters and who appreciate what help they can get, without creating the sorts of rights and obligations enforceable in a court of law. But in legal terms, the relationship is actually not so straightforward. In a recent case with these same facts, the architect was found to owe a duty of care to her friends, which meant that they could pursue a negligence claim against her when the construction works ran into trouble and exceeded budget[1]. As the judge pointed out in the opening of his judgment, “the case serves as something of a cautionary tale.

The friends in this case were a couple who wished to landscape their garden in North London. They had a quote from a landscape gardener which they found too expensive. They therefore approached their old neighbour and friend, who had some prior experience working as an architect, and who, at no charge, secured a contractor to carry out earthworks and hard landscaping. It was anticipated that she would help with some soft landscaping design works at a later date in return for a fee. However, the project did not get that far. The friends were not satisfied with the building works and they were shocked at the escalation in costs. The court had to consider whether the relationship and conduct between the architect and the friends gave rise to a duty of care, notwithstanding its finding that there was no contract. The architect argued that she was merely involved as a friend who happened to have a professional background. The friends contended that in fact, the advice and recommendations amounted to services which had been provided in a professional context and on a professional footing.

The judge found in favour of the friends; that in the circumstances and based on the lengths to which she had gone to secure and manage the work in question, the architect owed a duty of care. This was not a case of a brief piece of ad hoc advice of the type occasionally offered by professional people in a less formal contract, and it would be wrong to classify the advice given as akin to a favour. It was also relevant that the architect was not acting purely out of her good nature; she hoped to receive payment for some of her own work in connection with her design services later on in the project.

Some key questions to ask when identifying potential liability in situations of this nature include whether, when viewed objectively, the person providing the advice or service does so by exercising a special skill; whether there has been an assumption of responsibility for the task in question; and whether, but for the absence of payment, there would have been a contract.

The case serves as a reminder that advice or services of a professional nature, even if provided in the course of a friendship and for no charge, can nonetheless give rise to a legal duty of care.

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[1] Burgess v Lejonvarn [2016] EWHC 40 (TCC)

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.