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Professionals Need to Think Twice Before Offering Free Services to Friends

Recently a decision was made by the Technology and Construction Court (TCC) that a duty of care was present when a professional consultant performed a gratuitous service for a friend.

Think twice before offering friends free services

The court describes this case as a "cautionary tale", as it shows how a person can be held to account for offering services to a friend.

Arif Khalfe, who is a Partner in the Dispute Resolution team at Simpson Millar, explains this case and what it could mean for you.

What Happened in This Case?

In Burgess and another v Lejonvarn, Alexander Nissen QC, Deputy High Court Judge in the TCC, held that a professional consultant was under a duty of care for the work she had undertaken for a friend.

The consultant was an architect who decided to help her friends with a landscape gardening project for their back garden. Whilst a budget was discussed, it wasn't agreed for the consultant to receive payment for the work.

The project started but it didn't run smoothly; they became worried about the quality of the work, their friendship broke down and they then employed a different person to resolve the problems and finish the work.

A Contract or a Duty of Care?

The court assessed preliminary issues and made the decision that:

  • Any claim in contract could not succeed - a contract had not been agreed by the parties because there was no offer and acceptable or consideration.
  • A duty of care was owed.

The court clarified how this case is different to other situations where a friend offers gratuitous advice:

"This was not a piece of brief ad hoc advice of the type occasionally proffered by professional people in a less formal context. Instead, the services were provided over a relatively lengthy period of time and involved considerable input and commitment on both sides. They also involved significant commercial expenditure on the part of the Burgesses. It would be wrong to categorise this as akin to a favour given without legal responsibility."

Encouraging Mediation for Commercial Disputes

Alternative forms of dispute resolution such as mediation can provide a better way of reaching a solution in some commercial disputes. It was highlighted by the TCC as they concluded the case that they could not think of "a more appropriate case to which mediation is suited".

This shows that the court is becoming more open to trying preliminary issues where there is the potential to settle the dispute. In this case the maximum value of the claim was £265,000, making it a more appropriate case to try mediation.

Our Experts Opinion

"Professionals considering giving free advice to a friend need to think about the extent of the help you're offering. This case has clarified that a line is to be drawn between informal help between friends, and more extensive work that gives rise to a commercial arrangement; if this line is crossed and mistakes are made, you could find yourself held responsible."

Our Dispute Resolution team at Simpson Millar are experts in all types of dispute resolution and can provide the straightforward, concise advice you need if you're facing difficulties. Get in touch today to see how we can help.

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Dated: 04/02/2015

Author: Greg Cox

Landlord - Residential Letting Contract

need advice 0800 195 4319

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