Lejonvarn v Burgess & Anor

Factual and Procedural Background

The Plaintiff Respondents ("the Burgesses") owned a residential property in North London known as "Highfields". In 2012, they sought landscaping services and received a quotation from Company A, which they found too expensive. The Defendant Appellant ("Mrs Lejonvarn"), an American qualified architect not registered in the UK, and a former neighbour and friend of the Burgesses, was engaged informally to assist with the landscaping scheme ("the Garden Project"). Mrs Lejonvarn secured a contractor for earthworks and hard landscaping and intended to provide further design work for soft elements for a fee. However, the project ended prematurely in July 2013 due to dissatisfaction with the quality and progress of the work.

The Burgesses claimed that much of the work done during Mrs Lejonvarn's involvement was defective and that she was legally responsible, seeking damages of approximately £265,000. Their claim was advanced in both contract and tort, alleging that Mrs Lejonvarn assumed responsibility as an architect and project manager.

A trial of preliminary issues was held to determine whether the Burgesses could claim in contract and tort and whether a budget figure of £130,000 was discussed. The judge found no contract existed but held that Mrs Lejonvarn owed a duty of care in tort regarding the professional services she provided. The judge also found the budget figure of £130,000 was discussed twice. Mrs Lejonvarn appealed the decision that she owed such a duty of care.

Legal Issues Presented

1. Whether a contract was concluded between the parties regarding the Garden Project.
2. Whether Mrs Lejonvarn owed a duty of care in tort to the Burgesses in relation to the services she provided.
3. The nature and extent of any duty of care owed by Mrs Lejonvarn.
4. Whether the budget figure of £130,000 was discussed and agreed upon.
5. The appropriateness of applying the assumption of responsibility test versus the threefold Caparo test in determining the existence of a duty of care.
6. Whether specific duties such as supervision, design, cost control, and payment advice were owed by Mrs Lejonvarn.
7. The extent to which the judge's factual findings regarding the provision of services and assumption of responsibility were adequate and correct.

Arguments of the Parties

Appellant's Arguments

• The judge erred in finding a duty of care at common law given that no contract was formed between the parties.
• The assumption of responsibility test was improperly applied; instead, the threefold Caparo test should have been used, which would not support a duty of care in this case.
• The services were provided gratuitously and no contractual framework existed, undermining the basis for a duty of care.
• The judge failed to properly identify or define the scope of the services for which responsibility was assumed.
• It was not fair, just, or reasonable to impose a duty of care given the absence of contract, the informal nature of the relationship, and the fact that the builder owed no such duty.
• The judge wrongly concluded that Mrs Lejonvarn agreed to provide all the professional services alleged.
• The judge's factual findings on the provision of services were incomplete and inadequately supported.
• There was no precedent for imposing a duty of care in relation to supervision of work or design services in the absence of contract.
• The duty found improperly imposed positive obligations more suited to contract law rather than tort.

Respondents' Arguments

• Mrs Lejonvarn voluntarily provided professional services akin to those of an architect and project manager, knowing the Burgesses would rely on her skill and judgment.
• The relationship was akin to contract despite the absence of formal agreement, justifying the application of the assumption of responsibility test.
• The services were provided in a professional context, not as a mere favour or social arrangement.
• The Burgesses relied on Mrs Lejonvarn's experience and expertise, particularly given prior dealings demonstrating her capability.
• It was appropriate and reasonable to impose a duty of care to prevent economic loss arising from negligent performance of those services.
• The judge correctly identified the scope and nature of the duties owed, including supervision, design, cost control, and payment advice.
• The duty to exercise reasonable skill and care arises in tort where professional services are provided, even gratuitously, if there is an assumption of responsibility and reliance.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465	Establishment of duty of care based on assumption of responsibility and reliance in provision of professional advice.	The court relied on the principle that a duty arises when a party with special skill undertakes to assist another who relies on that skill, even absent contract.
Murphy v Brentwood District Council [1991] 1 AC 398	Limits on recovery of pure economic loss in negligence, especially relating to builders' duties.	The court distinguished duties owed by professionals from those owed by builders, noting builders generally owe no duty to third parties for pure economic loss.
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145	Clarification of assumption of responsibility in tort and its application to professional services.	The court applied the assumption of responsibility test to find a duty of care owed by Mrs Lejonvarn as a professional providing architectural and project management services.
White v Jones [1995] 2 AC 272	Categories of special relationships giving rise to duty of care, including voluntary assumption of responsibility.	The court confirmed that voluntary provision of professional services with reliance by the claimant can establish a duty of care.
Caparo Industries Plc v Dickman [1990] AC 605	Threefold test for duty of care: foreseeability, proximity, and fairness.	The appellant argued this test should apply; the court held assumption of responsibility subsumes this test in cases akin to contract.
Customs and Excise Commissioners v Barclays Bank plc [2007] AC 181	Use of assumption of responsibility test in cases involving relationships akin to contract.	The court endorsed the assumption of responsibility test as appropriate in cases involving voluntary professional services.
The Zephyr [1985] 2 Lloyd's Rep. 529	Distinction between positive obligations (contract) and negative duties (tort) in negligence claims.	The court acknowledged the importance of distinguishing contractual obligations from tortious duties; the duty found was consistent with tort principles.
Robinson v PE Jones (Contractors) Ltd [2012] QB 44	Professional persons may owe duty of care for economic loss; builders generally do not.	The court accepted that Mrs Lejonvarn, as a professional, could owe a duty of care where the builder would not.

Court's Reasoning and Analysis

The court carefully analysed whether a duty of care arose despite the absence of a concluded contract. It accepted that although no contract existed—due to lack of offer, acceptance, intention to create legal relations, and consideration—the relationship was akin to contract because the services were provided professionally and on a professional footing.

The court applied the assumption of responsibility test from Henderson v Merrett, supported by Hedley Byrne and related authorities. It found that Mrs Lejonvarn, possessing special skill as an architect and project manager, voluntarily undertook professional services for the Burgesses, who reasonably relied on her to perform them with reasonable skill and care.

The court rejected the appellant's submission that the Caparo threefold test should be applied separately, holding that assumption of responsibility subsumes the considerations of foreseeability, proximity, and fairness. It emphasised the importance of detailed factual findings in assessing the existence and scope of the duty.

Regarding specific duties, the court found that Mrs Lejonvarn owed a duty to exercise reasonable skill and care in:

• Project managing the Garden Project, including directing, inspecting, and supervising contractors (albeit periodic inspection, not continuous attendance);
• Preparing designs sufficient to enable a fairly firm budget estimate;
• Preparing designs to enable construction;
• Receiving applications for payment from the contractor and advising the Burgesses;
• Exercising cost control by preparing and overseeing a budget.

The court noted that the duty was limited to exercising reasonable skill and care in the services actually performed and did not impose a general obligation to provide such services. It also acknowledged that the detailed scope and extent of the duty would be clarified at trial on the facts.

The court distinguished the professional duties of Mrs Lejonvarn from the duties of the builder, noting that builders do not ordinarily owe a duty of care for economic loss to third parties, but professionals do assume such responsibility when providing services.

Overall, the court upheld the judge’s factual findings regarding the assumption of responsibility, the professional context of the relationship, and the reliance placed by the Burgesses on Mrs Lejonvarn’s services.

Holding and Implications

The court UPHELD the trial judge’s decision that Mrs Lejonvarn owed a duty of care to the Burgesses to exercise reasonable skill and care in the provision of professional services acting as an architect and project manager in relation to the Garden Project.

The holding clarifies that a duty of care in tort can arise from an assumption of responsibility in the absence of a formal contract, particularly where professional services are provided and relied upon. The decision confirms that such duties encompass supervision, design, cost control, and payment advice services actually performed.

The decision does not impose a general obligation to provide services but limits liability to the negligent performance of services undertaken. No new precedent was set beyond confirming the application of established principles of assumption of responsibility and the scope of professional duties in tort.