29 January 2019

Am I liable if I provide professional expertise free of charge?

Yes and no…

The Technology and Construction Court (TCC) recently handed down what should be the final judgment in a long running dispute between an architect, who provided professional services free of charge, and her friends, the claimants. The claim ultimately failed as it was not proven that the duty of care owed by the architect was breached or caused any loss. However, the finding that a professional offering free services can owe a duty to exercise reasonable care and skill is noteworthy and should act as a cautionary tale.

One friend helping another – and how it went wrong

The parties had been friends for many years and had done various free ‘favours’ for each other during this time. Mrs Lejonvarn, an architect and project manager, provided services in relation to a garden landscaping project at the claimants’ home. The project was delayed and required significant remedial work, resulting in increased overall costs. The claimants sued Mrs Lejonvarn for the costs incurred in completing the project and putting any defective work right.

At first instance (at a preliminary hearing) the court held that there was no contract between the parties. However, given the history of providing professional favours and the formal nature with which the parties approached the project, it held that Mrs Lejonvarn owed a duty of care in tort. This decision was later upheld by the Court of Appeal. Mrs Lejonvarn had assumed a responsibility for performing her professional services and to exercise reasonable care and skill in doing so, and the claimants had relied on this.

When free favours cost more

At the third (and most recent) hearing, the TCC found that Mrs Lejonvarn had not breached the duty she owed and that the claimants could not prove that any loss had been caused. The case ultimately fell apart for the claimants due to their “scattergun approach” and the insufficient evidence they provided to the court.

It is also significant that the TCC found that Mrs Lejonvarn’s duty when providing the professional services was more limited than if they were provided in return for money. She could only be liable for what she actually did, rather than what she failed to do. This affirmed the earlier finding of the Court of Appeal.

The claimants had failed to identify what actual losses were suffered as a result of the alleged breaches. Where any underlying workmanship was considered defective, it did not follow that Mrs Lejonvarn was at fault for failing to spot this. It was for the claimants to identify what should have been spotted by Mrs Lejonvarn, and at what stage of the project she should have spotted it.

Beware when offering your services free

It is particularly true with professional negligence cases that each case turns on its own specific facts and with the evidence presented. Despite this, it is very unlikely that a similar duty of care would arise for someone giving free advice in a social setting. In Burgess v Lejonvarn, the commitment displayed to the project by both parties and the period over which services were provided meant that a duty of care was established.

When offering services for free, you should be aware that a contract may still arise if the relevant elements (e.g. offer, acceptance, consideration, intention of the parties) are made out. Even if not, a professional may still be under a duty of care in tort not to cause any loss to their ‘customers’. On the other hand, establishing a duty of care is only one part needed to prove professional negligence. This case shows that anyone seeking to sue for free but negligent work must make out all the requisite elements (e.g. duty of care, breach, causation) in order to be successful.

For further advice on potential liability when providing professional services free of charge, and all other litigation and dispute resolution matters, please visit our page here: https://www.hcrlaw.com/service/dispute-resolution/

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About the Author
Marc Lazarus, Partner
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