Burgess & Anor v Lejonvarn

A professional who voluntarily provides services may owe a tortious duty to exercise reasonable skill and care, but the duty extends only to services actually provided. It does not impose a positive obligation to provide further services. The scope of the duty depends on the work undertaken and the facts of the particular project.

An inspecting architect does not guarantee that all defective work will be discovered. Inspection must be assessed against the nature and stage of the works, the professional’s expertise, and the competence of the contractor. A competent professional may rely on a specialist contractor to undertake specialist structural design where that reliance is reasonable.

The claimants engaged the defendant, an architect and project manager, in connection with landscaping works at their home. No contract was found at the preliminary-issues stage, but the Court of Appeal held that she owed tortious duties in respect of professional services she actually provided.

The trial concerned whether the defendant had negligently designed or supervised the works, prepared and monitored the budget, and assessed interim payment applications. The claimants sought the cost of remedial and completion works and a wider global loss. The central issues were the scope of the assumed duties, breach, causation and recoverable loss.

1. Outcome. The claim was dismissed. The defendant was not in breach of the duties identified at the preliminary-issues stage, and the alleged losses were not recoverable.
2. Scope of duty. The Court of Appeal’s reformulation was applied. The defendant owed duties to exercise reasonable skill and care only in relation to professional services she actually provided. She was not under a duty to provide services which she had not undertaken, or to perform a positive act in the future. The court therefore examined what she actually did on the project.
3. Design and specialist work. The defendant’s drawings concerned levels, stairs and landings and were not intended as construction or detailed structural designs. They were not negligently produced. The defendant was entitled to rely on the experience and expertise of the specialist groundwork contractor for retaining-wall and other structural work. No duty required her to warn that further structural designs were necessary in the circumstances found.
4. Inspection. The defendant made periodic visits and reviewed payment applications, but she did not undertake detailed structural inspection of specialist groundworks. The court held that she was not negligent in failing to identify the alleged defects. An architect does not guarantee that inspection will reveal or prevent all defective work; the required inspection depends on the works, their stage, the circumstances and the reasonable limits of professional expertise.
5. Budget and payments. The £130,000 budget was realistic and competently prepared. The defendant was not negligent in preparing or monitoring it, or in advising on interim payments made on a daywork and materials basis.
6. Loss. The global claim included completion costs and expenditure unrelated to any breach. The alleged remedial costs were not shown to correspond to negligent acts or defects for which the defendant was responsible. No recoverable loss, general damages or overpayment claim was established. Unless agreed, costs were to be addressed separately.

The judgment records that the preliminary issues were determined at first instance by Alexander Nissen QC, sitting as a Deputy High Court Judge, in [2016] WHC 40 (TCC). The Court of Appeal dismissed the appeal on the tort duty issue and varied the formulation of the specific duties, as recorded in [2017] BLR 277. This judgment determined the remaining issues after trial.