This architect’s negligence claim will no doubt be familiar to insurance, construction and legal practitioners. The matter has gained notoriety as a result of:
- the regrettable factual scenario, involving an offer to provide professional services for free resulting in a previously harmonious relationship between neighbours descending into expensive and bitter court proceedings, and
- a finding at the preliminary issues stage that a duty of care in tort existed where a construction professional was providing gratuitous services in circumstances where there was no underlying legally binding contract.
At trial, the court rejected, on the facts, the claimants’ allegations of negligence and breach of duty in respect of the services the defendant provided (these included design and project management obligations, inspection, preparation of budget and assessing and approving payments - amongst others). The decision that the defendant was not liable to the claimants was a rather spectacular defeat for the claimants, whose case on certain aspects was described as “threadbare” and as offending common sense.
Our previous article setting out the background, with commentary on the Court of Appeal decision confirming the position on the preliminary issues, can be found here. In short, the claimants (Mr and Mrs Burgess) and the defendant architect (Mrs Lejonvarn) had been good friends for a number of years when the defendant volunteered to help the claimants with a significant landscaping project for their garden. She subsequently performed professional services for free between March and July 2013, when the relationship ended badly.
The claimants complained that much of the work was defective and costs were far higher than expected, claiming in contract and tort.
Following the hearing of preliminary issues, it was found that no contract existed between the parties but that the defendant did owe a duty of care to exercise reasonable skill and care in relation to those professional services she provided. This was because the defendant assumed a responsibility to the claimants for performing her professional services, and that the claimants relied on the defendant for that purpose.
Burgess v Lejonvarn: The 2018 Decision
A subsequent hearing took place to determine whether the defendant had in fact failed to carry out the various professional services with reasonable skill and care.
The court considered in detail what the defendant actually did during the course of her involvement in the project to determine whether she acted (as alleged) in a way that was negligent. These services included: project managing; supervising and inspecting the contractor’s works; and preparing designs to ensure a budget estimate could be prepared - all of which had to be performed with reasonable skill and care. All allegations were rejected.
Aspects of the claimants’ case were heavily criticised, as well as their approach to factual evidence, much of which was described as being “of limited relevance”.
The claim for negligent design and project management was criticised for lacking “credibility and conviction”, and the alleged breach of design and project management duties claim was described as “threadbare”.
The court commented that the claimants’ “global claim”, namely a claim for the actual costs incurred versus what they alleged would have been the cost had they proceeded with the original designer, had “many weaknesses” and “offends common sense”, and that the claimants “could and should have attempted to identify what actual, if any, losses were suffered as a result of the breaches alleged”.
Inspection duties - key guidance
With reference to McGlinn v Waltham Contractors Limited, the court referred to a common failing in claims against architects, which is to “assume any claim for bad workmanship against the Contractor must automatically be reflected in a claim against the Defendant on the basis that if there is a defect, then the Defendant has been negligent for not identifying it and having it remedied”.
The key point here being that, in circumstances where the underlying workmanship is defective, it is not automatically the architect’s fault for failure to spot the defect. A claim against an architect in this respect must be far more nuanced and detailed to stand a chance of succeeding. In particular, the claimant must identify what, specifically, should have been identified by the architect, and when.
Following on from this, the court rehearsed some well-established legal principles relating to an architect’s obligation to inspect which are worth reiterating, including that:
- the frequency and duration of inspections should be tailored to the nature of the works on site
- if an element of the works is particularly important, the architect may instruct the contractor to ensure it is not covered up during its inspection, although this is a situation that is “unlikely to arise in most cases”
- a reasonable inspection of the works does not require the architect to examine every matter in detail, and
- the fact that work is covered up during inspections will not automatically amount to a defence to failure to inspect allegations. In these circumstances, matters such as the importance of the work and the architect’s reasonable understanding of what works are being carried out on site are to be taken into account.
Many were somewhat concerned by the finding at the preliminary issue stage that a duty of care in tort existed (see our article here), despite a lack of a contract - and the fact that the defendant was providing free services to her (former) friends.
Although obviously very fact-specific, the court’s later finding that the defendant had not been negligent, coupled with damning criticism of the claimants’ failure properly to particularise and evidence their claim, will be cautiously welcomed by construction professionals and professional indemnity insurers. This decision serves as a useful reminder that:
- establishing a duty of care is just one of a series of hurdles to overcome when bringing a professional negligence claim; considerable leg work is required to demonstrate breach and causation
- claimants have to identify what actual losses were suffered as a result of any breaches alleged, and
- the courts will not automatically find breach in circumstances where workmanship errors were not identified by an inspecting architect - claimants have to give detailed evidence as to what specifically should have been inspected and when.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.