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Architect awarded at least £400k from neighbours after failed legal spat

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An architect is to be paid at least £400,000 in legal costs after being unsuccessfully sued by her former neighbours for providing free advice on a garden project

Basia Lejonvarn was awarded the initial six-figure sum in costs after a long-standing legal battle with her former neighbours in Highgate, north London. The total costs have now been set at the punitive, indemnity rate and are expected to be worked out by the end of the year, meaning the figure will rise further. 

The American-qualified architect was sued by her neighbours Peter and Lynn Burgess after providing free assistance in 2013 in a ‘non-commercial, informal and social context’ for a major landscaping project at their home.

Lejonvarn, who had lived next to the couple’s previous address in Highgate, initially became involved in the project after the couple had sought quotes from landscaping experts which valued the project at £175,000 (excluding VAT). They believed the price was too high.

The architect agreed and offered to help her friends on a casual basis finding other contractors who could deliver the scheme at a lower budget of £130,000.

But, according to the judgement papers, after piling and earthworks were carried out at the site the Burgess’s became concerned about the budget. 

At a meeting in July, Peter Burgess said he had understood the budget to be £78,000 and denied that he had ever agreed the £130,000 figure.

As a result, the architect terminated her relationship with the respondents. At no stage did she make any claim for fees in connection with the garden project which subsequently ran over budget, was blighted by problems and eventually had to be completed by the original landscape contractor.

Following the disagreement in 2015, the couple began High Court proceedings for breach of contract and negligence, claiming up to £300,000 in damages.

Three weeks after the start of legal proceedings, Lejonvarn made an early offer of £25,000 to settle out of court, known as a Part 36 offer. However that settlement offer was rejected with the couple offering a counter-offer of £220,000 in damages.

At a preliminary High Court trial, Lejonvarn had been found to owe the couple a duty of care – a duty that was also held to exist when Lejonvarn appealed.

However when the specific issues of the case were then reheard at High Court, the judge concluded that the duty of care was limited only to the services which the architect provided and that on the substantive issues the claimants had failed. 

The judge found that the couple’s ‘claim for negligent design and project management [lacked] credibility and conviction [and], in any event, the claimants [were] unable to identify any drawings produced by the defendant which caused any defective construction or any advice which was given negligently’.

The couple therefore recovered no damages.

Over the course of the lengthy legal action, lawyers acting on behalf of Lejonvarn stated the full indemnity costs at an ‘eye-watering’ £724,265.

In his conclusion on the issue of whether Lejonvarn was entitled to standard or indemnity costs, Court of Appeal, judge Justice Coulson stated last week that the legal action bought by the Burgesses was linked to ‘an irrational desire for punishment unlinked to the merits of the claims themselves’ and was considered conduct that was ‘out of the norm’.

Coulson stated: ‘In my view, the central element of this debate is whether or not, prior to trial, the respondents (or their advisers) should have realised that these were speculative/weak claims which were most unlikely to succeed and that, in pursuing them to trial, their conduct was out of the norm and should have been recognised by an award of indemnity costs in favour of the appellant.

’I would order indemnity costs in favour of the appellant from 7 May 2017, being one month after the Court of Appeal judgment. The appellant’s costs prior to that date will be assessed on the standard basis.’


Readers' comments (9)

  • A sobering story - particularly when the landscaping costs at the root of the dispute are compared to the 'eye-watering' indemnity costs.

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  • Industry Professional

    Back in the 1990s, my manager was involved as an expert witness for the defence regarding an underpinning project that went wrong. The defendants made an offer to settle but the other side wanted their day in court. When it came to the crunch, the judge said that the defendants were in the wrong in terms of the original work but did consider that they had made a reasonable offer to settle. Hence, while the defendants lost, the "winner" was not awarded any costs. Hence, the "winner" had a shallow victory, ending up way out of pocket by having to pay for their own costs. The judge's view was that cases should be settled as often as possible before coming to court and he penalised the "winner" for wasting the court's time. There seem to be parallels with this case.
    I find it reassuring that reasonable behaviour is rewarded.
    Jeffrey (an engineer - comment made via the IHS)

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  • 'An irrational desire for punishment' often seems to inform ARB cases where disgruntled clients pursue architects in a vindictive manner. The board ought to be mindful (a) that such people exist; (b) that if they haven't been to court their claims should be treated with extreme suspicion; and (c) that architects should not be presumed to be guilty unless they can prove otherwise. That 'irrational desire' sometimes seems to inform ARB's procedures.

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  • The ARB seems to be not that much more than a government fee collection agency that's achieved the magic status of having many architects believe they need to stick 'ARB' after their name.
    If they're qualified to practise as architects they don't, and arguably shouldn't.
    Some years after I'd decided to stop paying for the honour of being able to call myself an architect they issued me a formal warning for having been referred to as the architect in a building materials manufacturer's advertising, and it does seem to me that the ARB suffers from delusions of grandeur - I probably shouldn't subscribe to the AJ.

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  • Very telling that I didn’t get an email from the ARB informing me that the architect had been vindicated!

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  • The case was heard in 4 courts in succession. The first was in the TCC where the breach of contract claim was dismissed but a duty of care in tort was upheld. This judgement allowed that a tortious duty of care could embrace both acts of commission and of omission. At appeal, the judgement was qualified to exclude liability in tort for acts of omission. The claim was, at that time, largely based on assertions that the defendant was negligent for not doing things that were promised or which an architect ought to have done.

    By thus qualifying the 1st judgement, the Court of appeal removed the basis for pursuing the claims in negligence for what the defendant did not do. Nonetheless, claims of negligent omissions were, with some rephrasing, maintained. For example, the claimants originally said there was no fault in the defendant’s drawings but that she was negligent for not producing technical drawings. They then rephrased the claim averring the drawings were technical drawings and as such were defective in that they lacked construction details. A similar reversal was in the budget argument. Originally the claimants denied being told the budget was £130,000 and that, had they been told this, they would not have proceeded. The first court found it evident that they were advised more than once of the budget. In response they changed the claim to be that they relied on the advice that the budget was £130,000 and that this was a negligent underestimate of cost.

    The dispute returned to the TCC where the claim was dismissed after some 6 days of examining lay and expert witnesses. Cost were awarded to the defendant on the standard basis and subsequently revised on appeal to be partly on the indemnity basis.

    It is natural to help your neighbour without setting out written terms and confirming everything done in writing. In this case, it cost the good neighbour substantial legal fees and time for which indemnity costs does not fully compensate.

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  • @Paul Finch
    @Robert Wakeham
    The article does not mention the ARB.
    If you have further info please publish it.
    Otherwise stop using any pretext to complain about ARB.

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  • 'Omerta', Mr Berridge?

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  • As none of the parties to the dispute were ARB registered, the ARB had no jurisdiction.

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