with friends like these... burgess v lejonvarn: a parable for construction professionals
Oliver Pearson
Associate, Contentious Construction Berwin, Leighton Paisner LLP
A friend phones you for legal advice. He is in the middle of home extension works and while they started off well, the works are now running well behind schedule and the standard of workmanship is shoddy. What do you do? Hang up in a panic or confidently recite Supreme Court judgments and reassure them that you are happy to help out and advise them for free. They are a friend after all. I found myself in a not too dissimilar position shortly before Christmas. My mother called about a wood-burning stove she had installed in her living room. It had been fitted poorly and was leaking onto the carpet. Before I knew it, I found myself reeling off the various causes of action she could bring in contract, tort and (more exotically) unjust enrichment, citing the pertinent provisions of relevant legislation with bombast and aplomb. Had I read Burgess v Lejonvarn at that stage I would have exercised a little more caution. Burgess v Lejonvarn Mr and Mrs Burgess and Mr and Mrs Lejonvarn had been friends for over 10 years when the Lejonvarns found themselves at the Burgesses’ Olympics-themed party in the summer of 2012. Mr Burgess unfurled a high-level design for a landscape garden he hoped to build in his back garden. The designer had quoted a price of £150,000, a little steep according to Mrs Lejonvarn, an architect and project manager by trade. Things escalated from there and before long Mrs Lejonvarn found herself agreeing that her and her team would carry out the work at a lower price and that, for the early stages of the project at least, she would not charge for her services as project manager. A friendly gesture, though one she probably regrets. The project was a disaster. Mrs Lejonvarn, who had no prior experience managing major landscaping projects, was unable to implement Mr Burgess’s dream design. Costs significantly overran. Relations between the two soured and Mrs Lejonvarn was eventually replaced with the landscape gardener that provided the original design. Mrs Lejonvarn is now defending a claim for £265,000 without any PI insurance cover. The trial was limited to the evaluation of certain preliminary issues:
• Did a contract exist between the parties, and if so on what terms.
• Did Mrs Lejonvarn owe the Burgesses a duty of care in her role as project manager.
The judge concluded that there was no contract between the parties. Basic elements of contract formation were absent, including offer and acceptance, certainty of key terms and consideration. This is unsurprising, given the informality of the parties’ relationship and Mrs Lejonvarn’s decision to provide her services gratuitously.
The law of tort was less kind to Mrs Lejonvarn. After examining the relevant authorities, the nature of her relationship with the Burgesses and the extent of her role in the project, the judge reached a clear conclusion: Mrs Lejonvarn owed the Burgesses a duty of care in tort.