Peter Burgess Lynn Burgess v Basia Lejonvarn
| Jurisdiction | England & Wales |
| Judge | Mr Alexander Nissen |
| Judgment Date | 15 January 2016 |
| Neutral Citation | [2016] EWHC 40 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 15 January 2016 |
| Docket Number | Case No: HT-2015-00090 |
[2016] EWHC 40 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
The Rolls Building, Fetter Lane,
London, EC4A 1NL
Mr Alexander Nissen QC
(sitting as a Deputy High Court Judge)
Case No: HT-2015-00090
Seb Oram (instructed by Mayo Wynne Baxter) for the Claimants
Louis Flannery and David Sheard (respectively of and instructed by Stephenson Harwood LLP) for the Defendant
Hearing dates: 17, 18, 19 November 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Alexander Nissen QC
(sitting as a Deputy High Court Judge)
Mr Alexander Nissen QC:
Introduction
The Claimants, who are married, are the owners of 11 Highfields Grove, London, N6 6HN ("Highfields"). For 10 years or so prior to the events giving rise to this dispute the Claimants and the Defendant were good friends, having been near neighbours before the Claimants moved to Highfields. Sadly, they are now in dispute over the alleged provision of gratuitous professional services by the Defendant for the Claimants. The alleged services relate to a significant landscape gardening project which involved earthworks on a steep site at Highfields. In view of their former friendship and the fact that the services were said to have been gratuitous, the case serves as something of a cautionary tale.
This judgment concerns the trial of preliminary issues set by the Order of Mr Justice Edwards-Stuart at the Case Management Conference on 10 July 2015. I shall explain the nature of those issues in due course. Suffice it to say, at this stage, that the Court was concerned about the disproportionate costs that these litigants would incur if they were required to participate in a full trial of all the issues between them. The Court considered that a trial of preliminary issues would clarify matters and, hopefully, would enable the parties to settle their differences without recourse to a full trial.
General Background
The Claimants, whom I shall describe as Mr and Mrs Burgess or the Burgesses, purchased Highfields in March 2010. Mr Burgess is a director and principal shareholder in a company called Retail Human Resources plc. That company (which I shall describe as "RHR") features, to a limited degree, in the story. Mrs. Burgess is a graphic designer and was brought up in Montreal. Mr and Mrs Burgess came to know the Defendant, whom I shall describe as Mrs Lejonvarn, and her husband because they were near neighbours at their previous address in Cromwell Avenue, Highgate. Mr Lejonvarn works in the financial sector. Aspects of Mrs Lejonvarn's background are an issue in the case and I refer to that below. But it is not controversial that she, like Mrs Burgess, was born in Montreal, obtained a degree in art history from a Canadian University and moved to New York to undertake a Bachelor of Architecture programme at the Cooper Union. On graduation, she was the recipient of the Dean's Thesis Prize. Post degree, Mrs Lejonvarn worked in various architecture firms in New York and Columbia. She then moved to San Francisco to work as an architect, first with Bechtel, then with Skidmore Owings and Merrill, a significant and well known firm, and then a smaller firm. Whilst working for those larger firms she undertook design work for airports in Dubai, San Francisco and Manila. She also worked on designs for tall buildings. Eventually she moved to the UK and stopped work to bring up her children. From 2007 she was working at a local architectural practice until 2010. She then moved to another firm and, eventually, decided to work on her own account. By the spring of 2013 she had adopted a trading name of Linia Studio.
The detailed background of events leading up to the garden project is set out below. By way of introduction, there came a time in 2012 when the Burgesses decided to move forward with a project to landscape their garden at Highfields. I shall refer to this as the Garden Project. They obtained a quote from a well known landscape gardener to carry out the work at a cost in excess of £150,000 plus VAT. Believing this to be too expensive, they decided to ask for professional assistance from their friend and former neighbour, Mrs Lejonvarn. There is an issue between the parties as to whether she was engaged by a contract with the Burgesses and, if so, on what terms. By spring 2013 Mrs Lejonvarn secured the contractor to carry out the earthworks and hard landscaping at Highfields in pursuit of the Garden Project. The works involved the relevelling of the steep slopes, the formation of terraces and banks supported by railway sleepers, and the creation of paths and lawns. Paving and drainage works were also to be carried out. Mrs Lejonvarn's intention was to provide subsequent design input in respect of the "soft" elements of the Garden Project such as lighting and planting, when that stage was reached. For that she intended to charge a fee. Sadly, the project never reached that stage. The earthworks and landscaping were done by the contractor secured by Mrs Lejonvarn. Quite what Mrs Lejonvarn herself did during the earthworks and landscaping phase is in dispute and at the core of the action. In July 2013, the parties sent each other emails, bringing Mrs Lejonvarn's involvement in the Garden Project, whatever it was, to an end. The Burgesses continued with the work using a member of the original workforce but ultimately engaged the specialist landscape gardener who had provided the original quote. It is said that much of the work done during the period of Mrs Lejonvarn's involvement was defective and that she is legally responsible for it. Mrs Lejonvarn denies being responsible for the quality of the works carried out on site. Criticisms are also made in respect of procurement, project management, budgeting and cost control. Mrs Lejonvarn says that she was not responsible for the provision of any of these services. The Burgesses have sued Mrs Lejonvarn both in contract and in tort and claim, as damages, the difference between the actual cost to them of the Garden Project, including remedial works, and that which they told it would broadly cost. The maximum value of the claim is circa £265,000.
The Preliminary Issues
There are five preliminary issues which I have to determine as part of this trial. They 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?
(ii) If so, what were its terms?
(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?
(iv) If so, what was the nature and extent of her duty?
(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?
Since those questions cross refer to the pleadings, it is convenient to set out the relevant paragraphs of the Particulars of Claim and the Defence here:
Particulars of Claim
"D. The Garden Project: The Defendant's duty in tort
18. The Defendant well knew that the Claimants would rely on her professional skill and experience in carrying out the tasks set out in paragraphs 14 and 15 above. In particular, the Defendant well knew:
18.1. in light of the matters set out in paragraph 5, that the Claimants were relying on her to exercise the professional skills of an architect and project manager; in particular those that she had held herself out as having, and had in fact performed, in relation to the Bank Project, the earlier refurbishment of the Property, and the Office Project;
18.2. in light of the matters pleaded in paragraphs 9 to 11, that, had the Defendant been incapable of performing those tasks (namely, those set out in paragraphs 14 and 15 above) competently, so as to procure completion of the Garden Project at the Cost (allowing a reasonable margin for necessary changes in design, and events impacting on construction that were, in each case, unforeseen and unforeseeable), that the Claimants would instead have engaged Mark Enright;
18.3. that the Claimants were not intending to seek professional advice or assistance from any other person in relation to the performance of those tasks; and
18.4. that, if she were to perform those tasks without reasonable care and skill, it was a foreseeable consequence that the Claimants would suffer loss, expense and inconvenience.
19. The Defendant assumed responsibility for the tasks set out in paragraphs 14 and 15 above and thereby came under a duty of care to the Claimants to perform those tasks, and to give such advice, with due skill and care. In particular, the Defendant owed a duty to the Claimants, as architect and/or project manager on the Garden Project, to exercise reasonable care and skill in architectural design, budgeting, procurement, project management and supervision, and cost control, so as to complete the Garden Project at the Cost (allowing a reasonable margin as set out in paragraph 18.2).
20. Further or alternatively, the duty of care arose by reason of (a) the foreseeability of damage to the Claimants in the event of those tasks being...
To continue reading
Request your trial
- Mr Peter Burgess and Mrs Lynn Burgess v Mrs Basia Lejonvarn
-
Ms Basia Lejonvarn v Mr Peter Burgess & Mrs Lynn Burgess
...three separate occasions: by Mr Alexander Nissen QC (sitting as a Deputy High Court Judge) in his ruling on the Preliminary Issue ( [2016] EWHC 40 (TCC)); by the Court of Appeal in their judgment upholding his decision but modifying the duty of care to reflect what the appellant actually d......
-
Joyce, Karl James (A person under disability) by Jacqueline Craig, his mother and next friend v Matthew Bradbury, Northern Ireland Housing Executive, Armoury Demolition and Recycling Ltd, Eastwood Ltd, Robert Rush, Doran Construction Ltd and Highway Barrier Solutions Ltd
...which ends with a similar statement to that found in the te xt, following a reference to the recent case of Burgess v Lejonvarn [2016] EWHC 40 (TCC) . 45 [134] The third legal point is more difficult. The question which arises is that of whether, independently of the analysis above, there i......
-
Mrs Basia Lejonvarn v Mr Peter Burgess and Another
...ON APPEAL FROM QUEEN'S BENCH DIVISION TECHNOLOGY AND CONSTRUCTION COURT MR ALEXANDER NISSEN QC (Sitting as a Judge of the High Court) [2016] EWHC 40 (TCC) Royal Courts of Justice Strand, London, WC2A 2LL Fiona Parkin QC, David Sheard and Louis Flannery (instructed by Stephenson Harwood LLP)......
-
Professional Supervision Services: Negligent And Gratuitous Services
...will be of interest to professionals and professional indemnity insurers. The Case of Peter Burgess and Lynn Burgess v Basia Lejonvarn [2016] EWHC 40 TCC The The Plaintiffs decided to landscape their garden. They obtained a quote from a landscaper. They believed the quote to be too expensiv......