In the recent case of Burgess and Another –v- Lejonvarn, the High Court, in what it described as a “cautionary tale”, held that a professional could be held responsible for work that he does in the course of his business to help out a friend, even though he is not being paid for it.
The professional consultant in question performed various services relating to her friends’ landscape gardening project. The project did not go smoothly. As a result, the relationship between the consultant and her friends broke down. Her former friends sued her for the cost of the remedial works. The consultant defended the claim, on the basis that she was doing this as a favour and wasn’t being paid for her services.
The court found;
- The consultant had no contractual liability, because there was no contract between her and her former friends.
- That nonetheless the consultant owed a duty of care, on the provision of those services. Even though this resulted in pure economic loss, the consultant was held liable. The court went even further, and said that this liability related not only to the advice given, but also to any other services that the consultant performed.
- The court did say, however, that this was not just an ad hoc piece of advice. It emphasised that this was a significant project approached in a professional way, with services provided over a relatively long period and involving considerable commitment on both sides. Evidence was also given that the consultant had hoped to receive payment for services at a later date.
- There is, therefore, a potential loophole in any claim of this nature if the professional has only given ad hoc advice in a less formal context. However, it would be wrong to assume that there is no liability if there is no formal contract.
- The opposite is also true. If you have no formal retainer with a professional when you are the consumer, you may face defence to say that the advice provided was on an ad hoc, informal basis.
From both parties’ points of view, beware “freebies”!
For any queries that you might have in relation to contractual disputes please do not hesitate to contact our experts Mark Hirst (email@example.com) or Rachael Frankland (firstname.lastname@example.org).
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