Friends become Enemies aka The Dangers of Free Advice

News | Fri 13th May, 2016

We were often warned against giving legal advice to our friends.  As professionals, if we give advice of a professional nature, there is (surprisingly to me) a distinct possibility that it will be relied upon.  This accords with the well-established Hedley Byrne doctrine of liability for the assumption of responsibility.  When giving advice, this liability can arise even if we don’t charge for our services.  Negligent mis-statement is the ground usually pleaded but in the instant case it formed only a part of a Preliminary Issue determination as to the nature and scope of any duty owed by the friend/professional.

The parties were, in the one corner, a married couple and in the other corner, their erstwhile architect friend.  The architect gave recommendations to the couple about their proposed garden scheme.  An issue arose as to what duty she owed at the time (for alleged economic loss) and deciding this involved a full examination of the architect’s role and recommendations.

Given that the judge found it impossible to find the basic elements of a contract in the numerous email exchanges between the parties, and no money was charged or mentioned by the architect, this limb of the claim naturally fell away.  However, he found that the architect still owed a tortious duty of care because her advice had been formal, specialist and extensive.

You might recall from earlier this year that the newspapers seemed to like this story of people falling out over rather expensive landscaping.  Nevertheless, I prefer to think of this case as in the manner in which the TCC judge put it: a ‘cautionary tale’.

(1) PETER BURGESS (2) LYNN BURGESS v BASIA LEJONVARN [2016] TCLR 3