Mrs Basia Lejonvarn v Mr Peter Burgess and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lord Justice Irwin,Lady Justice Gloster |
| Judgment Date | 07 April 2017 |
| Neutral Citation | [2017] EWCA Civ 254 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2016/0721 |
| Date | 07 April 2017 |
[2017] EWCA Civ 254
Lady Justice Gloster
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Hamblen
and
Lord Justice Irwin
Case No: A1/2016/0721
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
MR ALEXANDER NISSEN QC
(Sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Fiona Parkin QC, David Sheard and Louis Flannery (instructed by Stephenson Harwood LLP) for the Appellant
David Sears QC and Seb Oram (instructed by Mayo Wynne Baxter) for the Respondents
Hearing date: 8 March 2017
Introduction
The Claimant Respondents ("the Burgesses") own a residential property in North London called "Highfields". In 2012 they decided to carry out landscaping to their garden. A quotation of £155,837 plus a planting budget of £19,785 (both exclusive of VAT) was quoted by Mark Enright of the Landscape Garden Company Ltd. Although the Burgesses liked the plan produced by Mr Enright they regarded his quotation as being too expensive.
The Defendant Appellant ("Mrs Lejonvarn") was a friend and former neighbour of the Burgesses. She is an American qualified architect although she is not a registered architect in the UK. She worked for two architectural firms in the UK from 2007 to 2013 during which time projects were both discussed and performed for Mr Burgess's firm, Retail Human Resources plc ("RHR"). By spring 2013 she had decided to work on her own account and had adopted a trading name of Linia Studio.
The Burgesses decided to ask for Mrs Lejonvarn's assistance with their landscaping scheme ("the Garden Project"). She secured a contractor to carry out the earthworks and hard landscaping and a quotation was provided. She intended to provide subsequent design work in respect of the "soft" elements of the Garden Project such as lighting and planting for which she would charge a fee. The project never got that far. The Burgesses were unhappy with the quality and progress of the work and Mrs Lejonvarn's involvement came to an end in July 2013.
The Burgesses claim that much of the work done during the period of Mrs Lejonvarn's involvement was defective, that she is legally responsible for it and claim damages of about £265,000. Their claim was advanced in contract but also in tort on the basis that Mrs Lejonvarn assumed responsibility for the provision by her of professional services acting as an architect and project manager.
The trial of preliminary issues was ordered to determine whether the Burgesses could claim in contract and in tort and also whether a budget figure of £130,000 was discussed. After a 3 day trial the judge determined that there was no contract but that Mrs Lejonvarn did owe a duty of care in tort in relation to the provision of various services pleaded. It was also found that the £130,000 budget figure was discussed on two occasions.
Mrs Lejonvarn appeals against the judge's decision that she owed a duty of care in the terms found or at all.
The preliminary issues
The preliminary issues together with the judge's answers to them (in italics) are as follows:
(i) Was a contract concluded between the Claimants and the Defendant, as pleaded in paragraphs 21 to 23 of the Particulars of Claim or otherwise? — No.
(ii) If so, what were its terms? – Not applicable.
(iii) On the assumption that the defects set out in Schedule 1 to the Particulars of Claim existed as at 9 July 2013, did the Defendant owe any duty of care in tort in light of the matters, and in the terms, pleaded in paragraphs 18 to 20 of the Particulars of Claim, or otherwise? — Yes. Mrs Lejonvarn owed a duty of care to Mr and Mrs Burgess to exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager on the Garden Project.
(iv) If so, what was the nature and extent of her duty? — The duty was to provide those services pleaded in paragraphs 14 and 15 of the Particulars of Claim with the exception of paragraph 14.2 and subject to the additional limitations and qualifications identified in the body of this judgment.
(v) Was a budget of £130,000 for the Garden Project discussed between the Defendant and either or both of the Claimants as pleaded in paragraphs 10(1)(e), 11, 16(3), 21(2)-(3) and 29(3)(a)(b) of the Defence at any time before 5 July 2013, and if so, when? – Yes, on both 28 April and 17 May 2013.
The nature and extent of the duty found accordingly reflected paragraphs 14 and 15 of the Particulars of Claim which provide as follows:
"14. Between 6 March 2013 and 9 July 2013 the Defendant performed the following professional services, as architect and project manager, in relation to the Garden Project:
14.1 The selection and procurement of contractors and professionals needed in order to implement the Enright Design, including agreeing the terms on which they were engaged;
14.2 the planning of site commencement, preliminaries and initial strip out;
14.3 preparing such designs as were necessary to enable the Garden Project to be accurately priced and constructed;
14.4 attending site at regular intervals (approximately twice a week) to project manage the Garden Project, and to direct, inspect and supervise the contractors' work, its timing and progress;
14.5 receiving applications for payment from the contractor, and advising and directing the Claimants in relation to their payment; and
14.6 exercising cost control by preparing a budget for the works, and overseeing actual expenditure against it.
15. In particular, the Defendant undertook detail design of Enright Design, and made revisions to that design. The Claimants are aware of the following:
15.1 the Defendant produced a series of drawings dated 15 May 2013, under her professional trade name of Linia Studio, by way of detail design of the Enright Design ("the Drawings");
15.2 around May 2013 the Defendant made a revision to the structural design of the Garden. In an email dated 23 May, timed at 13:52, she told the First Claimant that:
"We are not going to use double layers of sleepers on any other walls than the one at the very front, (the first one) from here onwards, we are using steel structural support and bolting vertical sleeper to that (from behind) to minimise the use of sleepers as they are so pricey."
15.3 the Defendant altered, in the circumstances pleaded in paragraph 16 and 17 below: (i) the shape of the curved lawn in the Enright Design, to make it straight sided; (ii) the levels and design of the terraces in the Enright Design; and (iii) the layout of the paths of the Garden…."
The facts
The primary findings of fact made by the judge are set out in detail at [14] to [136] of the judgment which is reported as [2016] EWHC 40 (TCC). No challenge is made to those findings. In those circumstances it is not necessary to set them all out. We adopt those findings for the purpose of the appeal and will merely summarise the more important.
By way of background, the Burgesses and the Lejonvarns had been good friends for some years. The judge found at [14] that "there were occasions when the Burgesses showed a degree of commercial generosity to the Lejonvarns beyond what some might see as the normal bounds of friendship". He mentioned three instances: providing office space at no cost to Mrs Lejonvarn when she decided to set up her own architectural business; Mrs Burgess, who is a graphic designer, providing some gratuitous design services in respect of the logo for that business; and Mr Burgess lending the Lejonvarns £67,000 for a few weeks to assist them in the purchase of their new home. The judge found that these instances "provide some context to the subsequent decision by Mrs Lejonvarn to offer to provide gratuitous professional services to the Burgesses in respect of the Garden Project as part of her nascent architectural practice."
Some previous architectural services had been discussed or provided by Mrs Lejonvarn to Mr Burgess or his company before the Garden Project. These were what the judge described as the Bank Project, the Kitchen Project, the Little Venice Office Project and Archway Road.
The Bank Project concerned a former bank in Archway Road which was owned by RHR and which it wished to turn into a residential apartment. At that time Mrs Lejonvarn was working for a firm called Papa Architects ("Papa") under the supervision and control of Papa's director, Mr Socrates Miltiadou. RHR entered into a contractual relationship with Papa for the provision of project management and professional services in relation to the Bank Project for a 15% fee. Contrary to Mr Burgess' understanding the judge found that it was RHR rather than Papa who contracted with the contractors for the work itself.
Mrs Lejonvarn was the person most closely involved in the day to day running of the project although this was subject to the supervision and guidance of Mr Miltiadou, even if RHR were not aware of that at the time. Papa were engaged to project manage the project and controlled and supervised the project. The judge found at [33] that Mrs Lejonvarn, through Papa, "was involved in proper project management" and "personally played a considerable role in project managing the Bank Project, monitoring the budget for it, supervising the works (with the exception of specialist trades such as M&E works) and co-ordinating the contractors". He found that, as would have been apparent to Mr Burgess, her experience on the project was that of a project architect and project manager.
The Bank Project ended up costing considerably more than estimated but everyone agreed that the standard of workmanship was good. The judge found at...
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