PART 2: Free advice – but at what cost?
20th April 2017 by Rob Kelly
On 7 April 2017 the Court of Appeal handed down judgment in Lejonvarn v Burgess and anor [2017] EWCA Civ 254.
This case involved an architect whose good friends and neighbours, Mr and Mrs Burgess (the claimants in the original claim), were planning a landscaping project to their garden. They obtained a quote which they regarded as too high and they asked the defendant, Mrs Lejonvarn, for assistance. Mrs Lenjonvarn secured a contractor to carry out the earthworks and landscaping. She did not charge a fee, although it was her intention to provide design work later on for which she would charge a fee.
The project did not go well and Mr and Mrs Burgess brought a claim against Mrs Lejonvarn in which they alleged that she was responsible because much of the defective work went wrong while she was involved. Mr and Mrs Burgess won at first instance on the basis of the judge’s finding that Mrs Lenjonvarn had assumed responsibility towards Mr and Mrs Burgess in the expectation that they would rely on her advice. The Court of Appeal has upheld that judgment.
The judgment reiterates the need for care when professionals give free advice to friends. Liability is unlikely to arise from informal advice given in passing conversation but if this develops into carrying out substantive work in circumstances where the recipient can be expected to rely on that advice, there is the potential for a duty of care to arise.
If you would like further information please contact Rob Kelly.
This article provides information and comments on legal issues and developments of interest. The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such. Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.
Questions relating to this article should be addressed directly to the author.
Rob Kelly
Senior Associate Solicitor — Dispute Resolution
Direct dial: 01202 377871
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“Rob Kelly has been absolutely exceptional in resolving this litigation and so thorough in everything and basically gave the opposition a masterclass of his work that he is so good at.”
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“I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”
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Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.
Contentious wills, probate and trusts
More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years. He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.
Rob’s practice embraces:
- Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
- Disappointed beneficiary claims
- Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
- Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
- Proprietary estoppel claims
- Disputes about the proper construction, and rectification, of wills
- Caveats
- Professional liability claims arising from the preparation of wills and trusts and the administration of estates
He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.
Property disputes
The other side of Rob’s practice is contentious property work. This embraces:
- Residential and commercial landlord and tenant disputes
- Disrepairs
- Repairing covenants
- Possession claims
- Lease termination and lease forfeiture
- Dilapidations
- Service charge disputes
- Interpretation and enforcement of leasehold covenants
Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.
Rob is a Solicitor. He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006 and is a member of the Civil Mediation Council.
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