Francis Ho recites a cautionary tale of how offering free services to friends can land a professional in very hot – and expensive – water

francis ho bw 2017

Oscar Wilde’s creation, Algernon Moncrieff, used to say it was vulgar to talk about one’s business. For Mrs Lejonvarn it would have been difficult to avoid, however, since it was her near-neighbours and longstanding friends, Mr and Mrs Burgess, who were keen to receive her expertise. The Highgate couple were planning to relevel and extensively landscape their garden.

The ensuing fallout has since played out in the press – who have been seemingly unable to resist a sordid tale, told through the courts, of the hapless neighbour who was only trying to help and the death by a thousand emails of a once-close friendship.

The friends had not entered into any written agreement. This left the extent of Mrs Lejonvarn’s responsibility unclear. While her services were gratuitous, Mr and Mrs Burgess sued for approximately £265,000 of cost overruns

Mrs Lejonvarn had attended a party hosted by her friends during the London Olympics, at which their garden project plans became a talking point. A quotation from a well-known landscape gardener was considered too expensive so the Burgesses asked Mrs Lejonvarn, who they understood to be an architect (though not one registered in the UK), for help.

Read more about the Burgess v Lejonvarn case

She volunteered to source builders to carry out earthworks and hard landscaping. This she would do ex gratia, but a subsequent charge for assisting with soft landscaping elements was anticipated. Sadly, her participation was curtailed before that stage, as Mr and Mrs Burgess were unhappy with both the work and a dramatic escalation in construction costs. They blamed Mrs Lejonvarn, and relations swiftly disintegrated. Eventually, they appointed the landscape gardener who had originally quoted.

Understandably, the friends had not entered into any written agreement. This left the extent of Mrs Lejonvarn’s responsibility unclear. While her services were gratuitous, Mr and Mrs Burgess sued for approximately £265,000 of cost overruns.

Mindful to prevent disproportionate legal costs, the Technology and Construction Court (TCC) initially ruled on whether the Burgesses had a claim. The evidence indicated that a contractual relationship had not arisen. Nonetheless, Mrs Lejonvarn was deemed to owe a common law duty of care to her neighbours. By conduct, she had clearly assumed particular responsibilities over the project for which she had provided professional services, and they had relied upon her to exercise reasonable skill and care.

Mrs Lejonvarn appealed. The Court of Appeal upheld the earlier decision, although differing slightly with the TCC’s assessment regarding the nature and the limits of her duty.

Emphasise that any advice given freely is on a non-professional basis and that the recipient may not rely on it without first concluding formal terms and conditions

Last year the saga entered its third (and probably final) round. The earlier judgments having ascertained Mrs Lejonvarn’s tortuous liabilities pertaining to inspections, design, budget and payments, the TCC was now tasked with identifying whether she had breached them. The judge reviewed the correspondence and witness testimony and considered this unfounded. She had competently discharged her duties. (As an aside, it is unfortunate it had taken three trials in as many years to deliberate on such a fundamental ground, although, to be fair, the first instance judge had recommended mediation.)

To hold the proceedings up as a cautionary tale about the perils of doing favours for friends might be overly alarmist. This was not a case of mere ad hoc advice supplied in an informal or social context. Indeed, the parties had historically interwoven personal and professional proclivities. Mr Burgess had presented several opportunities to Mrs Lejonvarn’s then-employer to provide architectural advice to his company. He had given free business assistance when she was setting up her own business and even loaned her and her husband money for a property purchase. The evidence showed that her involvement in the garden project had been substantial.

Mrs Lejonvarn did not carry any professional indemnity insurance. This might have proven invaluable had the Burgesses been successful. Such insurance generally only applies to services rendered during the course of business. The fact they may be complimentary does not necessarily contravene the requirements of cover, but it’s safest to check with the insurer beforehand.

I mentioned the case to a friend and he quickly recalled finding himself once in circumstances not dissimilar to Mrs Lejonvarn’s, as events overtook him. It’s therefore important to be able to establish appropriate boundaries. This may involve carefully emphasising that any advice given freely is on a non-professional basis and that the recipient may not rely on it without first concluding formal terms and conditions.

And if they’re unreceptive to the suggestion? Algernon Moncrieff had an equally dubious answer to that. Whenever he found himself facing an unattractive social situation, he would suddenly find himself summoned to the country by his persistently unwell friend, Bunbury. Bunbury, of course, did not exist. 

Francis Ho is a partner in Penningtons Manches