Burgess & Anor v Lejonvarn, Court of Appeal - Technology and Construction Court, November 26, 2018, [2018] EWHC 3166 (TCC)

Resolution Date:November 26, 2018
Issuing Organization:Technology and Construction Court
Actores:Burgess & Anor v Lejonvarn
 
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Case No: HT-2015-000090

Neutral Citation Number: [2018] EWHC 3166 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 26/11/2018

Before :

MR MARTIN BOWDERY QC

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Between :

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Mr Seb Oram (instructed by Mayo Wynne Baxter Solicitors) for the Claimants

Mr Louis Flannery QC and Mr David Sheard (instructed by Stephenson Harwood Solicitors) for the Defendant

Hearing dates: 16th - 19th and 23rd July 2018

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JudgmentMartin Bowdery QC:

1. This Judgment is made up of six sections:

1. The Introduction;

2. The Preliminary Issues as reviewed and determined by the Court of Appeal;

3. The Evidence;

4. The issues of alleged breach by the Defendant;

5. The loss and damage allegedly caused by the alleged breaches;

6. Conclusions, Findings and Orders

1. Introduction

2. The Claim made in these proceedings has been the subject of two Judgments in relation to preliminary issues:

i) The Judgment of Alexander Nissen QC sitting as a Deputy High Court Judge [2016] WHC 40 (TCC) dated 15th January 2016;

ii) The Judgment of the Court of Appeal [2017] BLR 277 dated 7th April 2017.

3. The general background to this claim was summarised in the Judgment of Lord Justice Hamblen where, in paragraphs 1 to 5 of that Judgment, it was recorded that:

``1. 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.

2. 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 one project performed for Mr Burgess's firm, Retail Human Resource plc (``RHR''). By spring 2013 she had decided to work on her own account and had adopted a trading name of Linia Studio.

3. 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''

4. 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 exceeding the cost of the Defendant's original budget for the works. Their claim was originally advanced in contract and 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.

5. During the five day trial, I heard the evidence from the following people:

The Claimants' Factual Witnesses

Peter Burgess

Robert Carr

Lynn Burgess

Martin Platt

Philip Ellis

Robert Strong

Ivor Schlosberg

Adam Evans

Russell Pigeon

The Claimants' Expert Witnesses

Murray Armes a Chartered Architect

Philip Ellis a Chartered Quantity Surveyor

The Defendant's Factual Witnesses

Basia Lejonvarn

Przemek Kordyl

The Defendant's Expert Witnesses

Robert Evans a Chartered Architect

Mark Pontin a Chartered Quantity Surveyor

6. I also had the benefit of reading an Expert Report from Christopher Milnes, a Chartered Building Surveyor, jointly instructed by the parties to prepare a report regarding ``the existence on or before 9 July 2013 of defects and non-conformances at 11 Highfields Grove London N6.'' Neither party chose to call Mr Milnes for cross-examination.

7. I have also had the benefit of a site visit to see what is now a quite spectacular garden. The Claimants are rightly proud of the finished product which is beautiful and has been impeccably maintained.

2. The Preliminary Issues as reviewed and determined by the Court of Appeal

8. By an order dated 10th July 2015, Mr Justice Edwards-Stuart ordered that there be a trial of the following preliminary issues:

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 9th 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 Particular 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 5th July 2013, and if so when?

9. Paragraphs 21 to 23 of the Particulars of Claim (as originally pleading) provided as follows:

``E. The Garden Project: The Defendant's contractual duty

21. The conduct and exchanges of the parties set out above in paragraphs 9 to 13 above [sic], gave rise to a contract between the Claimants and the Defendant (``the Contract''). The Contract came into being on or around 15 May 2013, alternatively 28 April 2013, as a result of the matters pleaded in paragraphs 13 and 12 respectively.

22. By that Contract the Defendant agreed, in consideration of remuneration that she would draw out of the Cost (whether in the first phase or subsequent phases of the Garden Project), alternatively of the financial benefit that the Defendant would receive from her engagement on the Office Project:

22.1 to act as architect and/or project manager on the Garden Project, and to perform the services set out in paragraph 14 above; and

22.2 to procure the design and construction of the Enright Design at the Cost (allowing a reasonable margin as set out in paragraph 18.2).

23. It was an implied term of the Contract that the Defendant would exercise reasonable care and skill in the performance of those services, that term to be implied: by section 13 of the Supply of Goods and Services Act, because the Defendant was acting in the course of her business as Linia Studio; alternatively, because it was obvious, or necessary to give business efficacy to the contract.''

10. Paragraphs 14 and 15 of the Particulars of Claim provided 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 the 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 a steel structural support and bolting vertical sleeper [sic] 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 paragraphs 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.''

True copies of the Drawings and email referred to in this paragraph are attached to these Particulars of Claim as Appendix E.

11. At paragraph 206 of his Judgment, Alexander Nissen QC sitting as a Deputy High Court Judge answered the preliminary issues as follows:

``Summary and Conclusions

206. For the reasons set out above, I answer the preliminary issues in the following terms:

i) No.

ii) Not applicable.

iii) 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) 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.

vi) Yes, on both...

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