Why split trials can be a bad idea

Burgess v Lejonvarn [2018] EWHC3166 Bailii BLM TCC

In recent years we have reported both the first instance and Court of Appeal decisions in this dispute between Mr and Mrs Burgess and their next door neighbour Mrs Lejonvarn.  Mrs Lejonvarn was the non-practising architect who offered Mr and Mrs Burgess some advice on their plans to re-landscape their large garden.

The project did not go well, costs escalated and eventually Mr and Mrs Burgess sued Mrs Lejonvarn for professional negligence.  She denied liability and, in particular, denied that she owed a professional duty of skill and care to Mr and Mrs Burgess because she was non-practising.  Both the High Court and the Court of Appeal found against Mrs Lejonvarn that she was nevertheless in a position as an architect to owe duty of care in the law of tort for negligent advice where it was clear that her neighbours would rely upon what she said and did.

This issue had been decided as a preliminary issue split off from everything else, but it did not settle the case.  Mrs Lejonvarn continued to emphatically deny liability and the question of liability and quantum went to a normal trial in the TCC.

Held

Upon the facts, Mrs Lejonvarn had not at all been negligent, nothing that she had said or done had caused any harm or damage to Mr and Mrs Burgess.  This case was entirely dismissed after a very expensive 5 day trial.  Costs against Mr and Mrs Burgess.

Comment

1. Litigation is very expensive. In theory, separating out a key preliminary issue may seem like a short cut to resolving the whole matter. This rarely works in practice.  It was calamitous in this case because, although the Burgesses were successful, over several long and very stressful years, in establishing the principle of liability, they subsequently failed to establish the fact of liability.  It would have been much better for both parties if all the issues had been resolved at the same time.  It also invariably proves very difficult in practice to separate out a single issue without considering the surrounding facts and financial issues to some extent.
2. In consequence, we tend to recommend clients not to agree to splitting issues, unless there is a protocol agreed with the other side, whereby a case can consequently be settled by negotiation or the parties agree to a binding outcome. In this case, only the principle whether a duty of care existed had been established at the split trial.  Whether there had been a breach of that duty was dealt with in the third trial!  In this case both parties must have been seriously out of pocket by these prolonged and complex proceedings, although the judge began his judgement by remarking that he had had a site visit and Mr and Mrs Burgess now had a “quite spectacular garden”

For more specialist legal advice contact our Construction & Engineering team.