Dispute resolution experts have stressed that lawyers should not fear the implications of a case where an architect was found liable for free professional advice to friends – but they must still exercise caution.
The Court of Appeal will give judgment in coming weeks over a £265,000 claim by a London couple suing their neighbour for allegedly negligent advice on a garden landscape project.
The case, decided in favour of the claimants in the High Court, has set off alarm bells among the professions, particularly as there was no contract involved. The court found in January that the architect, Basia Lejonvarn, owed a duty of care to her friends of 10 years to exercise ‘reasonable skill and care’ in the provision of professional services.
One report said the case may ‘make people think twice’ about free advice, but specialists say lawyers can cover themselves reasonably easily.
Nick Gee, principal lawyer at national firm Slater and Gordon, said the extent of the defendant’s involvement – including costing the project and assembling a team – was unlikely to be matched by a solicitor.
‘She went way beyond a chat in a pub or at a party,’ added Gee. ‘Of course, every solicitor has friends with legal issues from time to time. If you are giving [free] advice you should always couch it by saying “don’t rely on this”.’
But Susan Hopcraft, a partner at Midlands firm Wright Hassall, said the case hinges on whether the professional did owe her friends a duty of care, however ‘informal’ the relationship was supposed to be.
She echoed the High Court judge, Mr Alexander Nissen QC, who called it a ‘cautionary tale’ and pointed out that the absence of a contract was not a protection from liability.
Hopcraft added that ‘advice’ offered to prospective new clients is a particularly risky area: ‘There is always the worry that they will go off and act on it however preliminary or sketchy the thoughts offered.’
Andrew Willan, solicitor in the dispute resolution team at London firm Payne Hicks Beach, said the case provided a salutary lesson for any professional tempted to offer free advice.
He said the boundary between informal advice seemingly given to friends or associates in a social context, and situations where there is an assumption of responsibility by a professional and reliance on their special skills, can become ‘blurred’.
‘It is not difficult to envisage analogous situations arising in the context of professionals voluntarily acting in other unpaid roles.
In another development, solicitors have hailed a Supreme Court decision in a professional negligence case as providing much-needed clarity on their liability when they mistakenly give a client erroneous information.
In BPE Solicitors and Anor v Hughes-Holland (in substitution for Gabriel), five Supreme Court justices rejected an attempt to overturn a decision that BPE Solicitors was not responsible for the entire costs of a disastrous property transaction because it provided allegedly incorrect information after a client had decided to embark upon the transaction.
BPE’s solicitors, commercial firm Beale & Company, said that the decision had provided clarity. ‘There are no longer exceptions to the rule that in information retainers professionals are only responsible for the consequences of their information being wrong,’ partner Rhian Howell said.