My wife absolutely loves offering my services as a matchmaker, job finder and building consultant to her many friends and colleagues and yes, you've guessed it, I don't get paid for any of these favours. Now I think it is fairly clear that when I succumb to my wife's promises and I find myself looking at a wonky wall, badly plastered ceiling or dodgy extension I am not entering into a contract with these people but the current Mrs Vinden (there will be only the one, I hope) might be surprised to learn that I could still be sued if I cock up in the granting of the requested favour. Why is this?
Well, even though there might not be a contract in place, I still owe a duty of care to anybody I have agreed to or been coerced into advising. If a loss is incurred as a result of free but dodgy advice and I am judged to have been negligent, then the person who has had the benefit of the free advice may also be able to sue me to recover any losses incurred as a consequence. Now you know where the saying "don't confuse the law with justice" comes from.
If you don't believe me, read the Court of Appeal's judgement in Lejonvarn v Burgess and another. The facts of the case are that Mrs Lejonvarn agreed to provide some unpaid project management services for some garden landscaping as a favour to her friends and neighbours, Mr and Mrs Burgess. What a nice gesture. Unfortunately, it appears that things started to go off the rails. The costs of the landscaping works started to escalate and it seems that Mr and Mrs Burgess did not fully approve of the quality of work undertaken by the appointed contractor.
Consequently, Mr and Mrs Burgess decided to dispense with Mrs Lejonvarn's free project management services and brought in another consultant to complete the project. Mr and Mrs Burgess then brought an action against Mrs Lejonvarn in the High Court claiming the increased costs of completing the project.
The High Court decided that no contract had been formed between the parties. This was partly because Mrs Lejonvarn had not accepted payment for the project and there was no "offer" or "acceptance" to be found in the email correspondence passing between the Parties. However, the High Court still decided that Mrs Lejonvarn owed her neighbours a “duty of care” to exercise reasonable skill and care in acting as an architect and project manager and to prevent economic loss.
Mrs Lejonvarn’s duty of care arose because she had “assumed responsibility” for the project. In reaching his decision, the judge noted that Mrs Lejonvarn:
- agreed to and provided a series of professional services over a period of time;
- expressed a degree of confidence in her ability to manage the project and control the budget;
- performed the services “in a professional context on a professional footing”;
- and was, or should have been, well aware that her neighbours were relying on her to perform her services.
Perhaps not surprisingly Mrs Lejonvarn decided to appeal the judgement but that appeal was thrown out by the Court of Appeal.
From now on I will be telling Mrs Vinden to cease and desist from offering my services to friends and colleagues on a pro bono basis. Well, perhaps I won't go that far as the judge was careful to emphasise that the case before him did not relate to “brief ad-hoc advice” but something that started out as a casual conversation between friends at a party and quickly progressed to something which was “akin to a contract”.
If your better half volunteers you to give informal advice in a social context, it is possible, but probably unlikely, that a duty of care will arise if you offer an informal opinion and that advice proves to be wrong. The fact that you have provided the advice for free and there is no contract will not necessarily prevent a duty of care arising. Why take the chance?
So, if you see me at a party, I will be the chap wearing ear defenders, gaffer tape over my mouth, drinking through a straw with the "no free advice given" label stuck to my forehead! Only joking
Peter Vinden is a practising Arbitrator, Adjudicator, Mediator and Expert. He is Managing Director of The Vinden Partnership and can be contacted by email at email@example.com.
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