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Mr Domenico Padalino
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
DOMENICO PADALINO (061907H)
Held on
30 September 2024 to 11 October 2024
At
National Council for Voluntary Organisations (NCVO)
Regents Wharf,
8 All Saints St,
London N1 9RL
_______________
Present:
Margaret Obi (PCC Chair)
Stuart Carr (PCC Architect Member)
Rachel Childs (PCC Lay Member)
_______________
The Architects Registration Board (“ARB”) was represented by Mr Jean-Jack Chalmers (“the Presenter”) of 2 Dr Johnsons Buildings instructed by Kingsley Napley LLP.
Mr Domenico Padalino (“the Registered Person”) attended the hearing and was represented by Mr James Hatt of 4 Pump Court instructed by Beale & Co.
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The Professional Conduct Committee (‘the Committee’) found the Registered Person guilty of unacceptable professional conduct (“UPC”). It did so, having found the following particulars of the Allegations proved: Melton Complaint Eagleston Complaint Savage Complaint and that by doing so, he acted in breach of Standard 4.4 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”). The sanction imposed is a Reprimand. |
Allegation
Matter 1 – the Melton Complaint
1.The Registered Person sent a letter dated 18 October 2018 in respect of Party Wall Matters to potential Adjoining Owner(s) in terms that:
a. did not adequately explain that an Adjoining Owner may consent in writing to a notice and allow the works to continue without the need for surveyors to be appointed and an award to be made;
b. did not adequately explain that an Adjoining Owner can consent to a Notice served on them without losing their rights under the Party Wall etc. Act;
c. did not adequately explain that once appointed a Party Wall Surveyor’s Appointment cannot be rescinded.
2. The Registered Person sent a letter dated 30 October 2018 to the Building Owner in which he said he had been appointed by both Adjoining Owners when this was not the case;
3. The Registered Person’s actions at particulars 1 and/or 2 demonstrate a lack of integrity.
Matter 2 – the Eaglestone Complaint
1. The Registered Person did not provide any and/or any adequate written terms of engagement to his client, contrary to standard 4.4 of the Architects Code, in respect of:
a. Phase 1 of the Project [amended by deletion]
b. Phase 2 of the Project.
Matter 3 – the Savage Complaint
1. The Registered Person failed to provide his client with adequate terms of engagement;
2. The Registered Person failed to provide his client with competent and/or adequate professional services in that he:
a. Failed to carry out research and due diligence on a project site;
b. Failed to provide adequate drawings and site plans. [discharged following a No Case to Answer application]
Background
1. The Registered Person is a registered Architect and director of DPA Limited. The background circumstances, as set out below, are based on the Agreed Facts.
2. The following matters are agreed between the parties:
Matter 1 – the Melton Complaint
3. On 6 October 2019, ARB received an email from Mr Joe Melton providing a decision of the Faculty of Party Wall Surveyors (“FPWS”) following an investigation by them in respect of the Registered Person.
4. ARB wrote to the Registered Person to obtain further information regarding the circumstances of the FWPS investigation and the Registered Person provided that information.
5. On 2 December 2019, ARB notified the Registered Person that it was raising an allegation against him in respect of Party Wall matters. ARB advised the Registered Person:
“I have taken time to read the documents you have provided and have decided to raise the following allegation that you:
1. Acted without integrity in respect of Party Wall matters. You sent misleading letters to Ms Helen Tranter and Mr and Mrs Kealy in respect of the Party Wall Act. In doing so you failed to make it clear it (sic) that work could proceed lawfully without the need for a Party Wall Surveyor, and this is supported by the decision of the Faculty of Party Wall Surveyors.”
6. The Registered Person was invited to provide written representations. He provided written representations to ARB on 8 November 2019 and 9 January 2020.
7. The matter was considered by the Investigations Panel who issued their decision to refer the matter to the Committee on 10 March 2020.
8. The allegation referred by the Investigations Panel was: The Registered Person acted without integrity in respect of Party Wall matters.
9. On 10 March 2020, ARB wrote to the Registered Person to advise that the case had been referred to the Committee.
10. On 14 August 2023, ARB wrote to the Registered Person confirming that the ARB’s intention was that the Melton matter was to be heard with the Eaglestone and Savage matters.
Matter 2 – the Eaglestone Complaint
11. On 10 April 2020, ARB received a complaint from Mr Lawrence Eaglestone.
12. On 18 September 2020, ARB notified the Registered Person of the complaint and advised it was raising allegations against him.
13. The Registered Person was invited to provide written representations. He provided written representations to ARB on 13 November 2020 and 21 January 2021.
14. The matter was considered by the Investigations Panel who issued their decision to refer the matter to the Committee on 23 September 2021.
15. The sole allegation referred by the Investigations Panel was: The Registered Person failed to issue the client with adequate terms of engagement.
16. A number of other allegations were considered by the Investigations Panel. There was no case for the Registered Person to answer in respect of these allegations and, as such, they were not referred to the Committee.
Matter 3 – the Savage Complaint
17. On 23 April 2020, ARB received a complaint from Shaun Savage.
18. On 18 September 2020, ARB notified the Registered Person of the complaint and advised it was raising allegations against him. ARB advised the Registered Person:
“I have taken time to read the complaint and my assessment is that it is making the following allegations:
1. The Architect failed to provide his client with adequate terms of engagement; The Complainant says that you provided him with engagement letters for all projects you were engaged for. The Complainant says that although these letters covered the scope of works, the contracting parties and chargeable services and fees, they failed to cover key aspects such as the provisions for suspension or termination, the existence of dispute resolution schemes and a complaints handling procedure. The 3 Complainant says that this falls below the standards specified in standard 4.4 of The Architects Code.
3. The Architect failed to provide his client with competent and/or adequate professional services in that he:
b) Failed to carry out research and due diligence on a project site; The Complainant says that you were engaged to attain planning permission for the erection of front wall and entrance gates on a residential property of a project known as the ‘Ridgeway project.’ The Complainant says that whilst working on this project you failed in carrying out the necessary research and due diligence on the project site. He says that this resulted in planning permission being denied on 25 September 2018 due to you not noting that the neighbouring walls, with similar works to that proposed on his project all had active enforcement investigations as they were erected without planning permission. These enforcement notices meant that the proposed works would have never achieved planning approval as similar applications had been consistently refused by the council and he says that this should have been brought to his attention by you before the planning application was submitted. The Complainant says this error was at a cost to him as he had to pay planning fees for the application and was invoiced by you for architectural work on a project which never went ahead.
c) Failed to provide adequate drawings and site plans. The Complainant says that you provided him with inadequate drawing and plans which contained inaccuracies and errors, often leading to project delays or loss of monies. He says that your failure to produce adequate drawings and plans is particularly exemplified through your work on his “Horsham” Project 17.”
19. The Registered Person was invited to provide written representations. He provided written representations to ARB on 13 November 2020 and 5 March 2021.
20. The matter was considered by the Investigations Panel who issued their decision to refer the matter to the Committee on 23 September 2021.
21. The allegation referred by the Investigations Panel was:
“1. The Architect failed to provide his client with adequate terms of engagement;
2. The Architect failed to provide his client with competent and/or adequate professional services in that he:
a) failed to carry out research and due diligence on a project site
b) failed to provide adequate drawings and site plans.”
22. A number of other allegations were considered by the Investigations Panel. There was no case for the Registered Person to answer in respect of such allegations. As such, these were not referred to the Committee.
Registered Person’s Response
Melton Complaint
23. The Registered Person suggested in correspondence with ARB that Mr Melton did not provide sufficient information in his requests to allow them to respond positively to his correspondence with the Registered Person’s office.
24. The Registered Person stated that his initial correspondence to the Adjoining Owners provided enough information to enable the recipient to decide whether they wished to find out more in respect of the Party Wall etc. Act. He also stated that he has never previously received a complaint about the wording of his correspondence and that his initial letters have previously been reviewed by RIBA and the Chair of the FPWS. He has sent thousands of such letters over a 15-year period and only about 3% have resulted in him being appointed as surveyor.
25. The Registered Person provided further documentation requested on 27 November 2019. He then provided further comments on 9 January 2020. Enclosed with those additional comments was a letter from Roger Shrimplin, an architect (instructed as an expert in this case), providing his view on the matter.
26. In his letter of 9 January 2020, the Registered Person noted that Party Wall matters were inevitably contentious. He stated that he had endeavored to resolve matters and had amended his procedures.
Eaglestone Complaint
27. On 13 November 2020, the Registered Person submitted initial representations. In his initial representations, the Registered Person stated that he had worked with Mr Eaglestone on a number of projects and therefore Mr Eaglestone was familiar with his company’s working style. He also stated that he had sent letters of engagement in February 2017, August 2017, and July 2018 for each of the stages of the work (namely planning, appeal and resubmission).
28. On 9 July 2021, the Registered Person submitted further representations. He stated that Mr Eaglestone was a property developer and thus a sophisticated client. He did not accept that the letters did not state the constraints or limitations on the responsibilities of the parties.
29. The Registered Person accepted that the terms of engagement letters did not confirm he had insurance in place or that a complaints handling procedure was available on request. In terms of referring to the Code and registration with ARB, the Registered Person stated this was clearly known by Mr Eaglestone as he made a complaint, and his practice website confirms this.
30. Overall, the Registered Person accepted that certain aspects of the terms of engagement fell short of what was required which was an oversight but stated that he has now updated these. He stated the defects were technical or de minimis in nature.
Savage Complaint
31. The Registered Person, in respect of failing to provide his client with adequate terms of engagement, accepted that the terms of engagement were not strictly in compliance with Standard 4.4 of the Code. He suggested that no prejudice arose from any omission and that the terms have since been updated and amended.
32. In respect of failing to carry out research and due diligence on a project site, the Registered Person suggested that adequate due diligence and investigations were carried out. He stated that this was an informal instruction and was a low-cost and low value instruction.
33. In respect of failing to provide adequate drawings and site plans, the Registered Person suggested that a query was raised with Mr Savage regarding the boundaries to the site. He stated that work was carried out in respect of the parking and drainage by specialist consultants, and it would not be fair to blame him for any of their issues.
Application to Amend
34. At the outset of the hearing the Presenter made an application to amend the Allegation in accordance with Rule 26 of the Investigations and Professional Conduct Committee Rules 2022. The Presenter invited the Committee to delete Particular 1(a) in respect of Matter 2 on the grounds that all the evidence before the Committee related to Phase 2 of the project, and no mention was made of Phase 1. Mr Hatt supported the application.
35. The Committee granted the Application to amend. In reaching this conclusion the Committee was satisfied that the proposed amendment more accurately reflected the evidence and would not cause any injustice to the Registered Person.
Admissions
36. The Registered Person admitted the Allegation (as amended) in its entirety at the outset of the hearing save for Matter 1 – Particular 3 (lack of integrity) and Matter 3 – Particular 2(b) (failure to provide adequate drawings and site plans).
Evidence
37. The Committee took into account the documentary evidence contained within the hearing bundle which included:
i. Report to ARB prepared by Kingsley Napley
ii. Witness Statement of Mr Melton dated 27 October 2021
iii. Witness Statement of Mr Eaglestone dated 18 November 2021
iv. Witness Statements of Mr Savage dated 14 December 2021 and 1 March 2023
v. Witness Statement of Ms O’Neill dated 9 August 2022
vi. Witness Statement of the Registered Person dated 13 September 2024
vii. Inquirer’s Report (Mr Robert Morrissey) dated 5 June 2023
viii. Mr Roger Shrimplin’s expert report dated 10 September 2024
ix. Joint Expert Report dated 30 September 2024
x. Registered Person’s various representations
xi. Various email correspondence
xii. Various Drawings and Site Plans
38. The Committee heard oral evidence from the ARB’s witnesses – Mr Savage, Ms O’Neill, and the Inquirer – Mr Morrissey. The Committee determined that it would not be assisted by hearing oral evidence from Mr Eaglestone (even though he attended on Day 2) as he had clearly stated in his witness statement that he does not recall receiving any terms of engagement letters or the separate terms of engagement documents. He does not recall signing any of these letters (and the copies provided by the Registered Person are unsigned) and his business partner also does not recall receiving the documents.
39. The Committee also heard oral evidence from the Registered Person.
No Case To Answer Application
Submissions
40. After ARB closed its case the Presenter informed the Committee that Mr Hatt would be making the following applications : (i) deletion of Particular 2(b) of Matter 3 (effectively on the grounds that there is no case to answer); and (ii) dismissal of Particular 2(a) (which had been admitted and found proved) on the grounds that it would not amount to UPC. The Presenter made it clear that he would not be opposing the applications. He submitted that, taking the evidence adduced at its highest, the Registered Person’s actions (as described in Particulars 2(a) and 2(b)) could be described as below the standard expected of a reasonably competent architect but not seriously below that standard. He further submitted that the ARB had not pleaded from the outset that these factual particulars should be considered cumulatively, and it would be unfair and wrong to invite the Committee to do so at this stage.
41. Mr Hatt submitted that based on the evidence that had been adduced on behalf of the ARB no reasonable committee would be able to conclude that Particulars 2 (a) and 2(b) amount to UPC.
42. Mr Hatt submitted that the evidence of Mr Savage was “incredible” in that during cross examination he questioned the accuracy of his own WhatsApp messages. He invited the Committee to conclude that the evidence of Mr Savage was dishonest and evasive. Mr Hatt submitted that Ms O’Neill was not dishonest, but her evidence contradicted the evidence of Mr Savage and it was clear that she had an agenda. In respect of Mr Morrissey’s expert evidence, Mr Hatt submitted that he made appropriate concessions even before he was cross-examined and based on these concessions alone there was insufficient evidence to amount to a case to answer.
Decision
43. The Committee considered the no case to answer application under its case management powers (Rule 15 of the Investigations and Professional Conduct Committee Rules 2022). The Committee considered Particulars 2(a) and 2(b) separately.
44. The Committee noted that Particular 2(a) had been admitted by the Registered Person and found proved. In considering whether this admitted failing was capable of amounting to UPC the Committee was mindful that at its highest the Registered Person failed to make basic enquiries before submitting a planning application. This has to be seen within the context of an informal instruction and a request for a speedy submission. Furthermore, the Committee noted that there was no indication from the contemporaneous WhatsApp messages and emails that Mr Savage was unhappy with the Registered Person’s approach. The Committee was left with the impression that Mr Savage was keen to find fault and attribute blame in retrospect for reasons unrelated to the planning application.
45. Mr Morrissey stated in his report that “[t]here was a failing on the part of the Architect but not, in itself, a serious failing” and went on to conclude that the Registered Persons actions fell below the standard expected of a reasonable architect. However, he also stated that the ultimate success of the second planning application was “very likely to have been the ‘best’ that could have been achieved for the complainant” by the Registered Person. The Committee took the view that the failure to carry out research and due diligence was towards the lower end of the spectrum for failings of this kind. The Committee concluded that there was no proper basis for any reasonable committee to determine that such a failing falls seriously far below the standard of a reasonable architect. In these circumstances, the Committee concluded that the failing was not sufficiently serious to amount to UPC. The Committee concluded that such a finding would be even more unlikely given the second successful planning application, submitted by the Registered Person on 5 November 2018 at no further cost to Mr Savage.
46. For these reasons, the Committee concluded that Particular 2(a) should be dismissed.
47. The Committee noted that in respect of Particular 2(b) ARB relied on the oral evidence of Mr Savage, Ms O’Neill, and the expert evidence of Mr Morrissey.
48. The Committee noted that Mr Savage was firmly of the view that the drawings and plans contained inaccuracies and errors and that the Registered Person was to blame for this. It was brought to the attention of Mr Savage, during cross examination, that he had appointed Robyland as a design and build contractor to complete the design of the Horsham Project and to carry out the construction works. However, Mr Savage refused to accept that that meant that DPA Ltd was not the architect for the Horsham Project in the traditional sense and therefore was not responsible for attending the site regularly to supervise the works, administer the construction contract or certify progress or payments due to the contractor. Although unrelated to the Horsham Project, the Committee also noted that Mr Savage appeared to question the authenticity of his own WhatApp messages and queried any interpretation of the relevant facts which did not accord with his view that the Registered Person’s drawings and site plans were substandard. The Committee concluded that these features of Mr Savage’s evidence fundamentally undermined his evidence as a whole.
49. Ms O’Neill had very little independent recollection of the key events due to the passage of time and the nature of her role as the Property Development Manager meant that she was not required to have any technical knowledge. Although she did her best to assist the Committee her recollection was tainted by her belief that DPA’s drawings were inadequate. During her oral evidence, she contradicted the evidence of Mr Savage with regard to the signing of the contracts. She stated that she would “sit down with Shaun and go through it [the contract]” to ensure that he had everything he wanted but not necessarily page by page. Furthermore, she accepted during cross examination that she had been asked to collate information to show that DPA Ltd had done a bad job.
50. The Committee noted that the Horsham Project was a £5m+ construction project, which involved the conversion of a disused office building to create 102 new residential properties. Mr Morrissey stated in his report that the project was of “considerable size, and, more significantly of considerable complexity.” Nonetheless, he identified only four main areas of criticisms in relation to the work caried out by DPA Ltd (i.e. not Mr Padalino personally): (i) the position of the automatic opening vents (AOV’s) for smoke ventilation; (ii) the complicated drainage design; (iii) the conflict between the window adjacent to the peak of a hipped roof in a third floor flat; and (iv) the ground floor window-to-floor junctions. At the outset of his oral evidence Mr Morrissey (to his credit) acknowledged that there were no serious failings with regard to the Horsham Project. He went on to make further concessions during cross examination. The Committee also noted that Mr Morrissey appeared to have overlooked the significance of the Design and Build contract, that Mr Savage had signed with Robyland, in assessing the degree to which DPA Ltd was responsible for the final drawings and site plans. He also appeared to conflate the Registered Person’s accountability as the director of DPA Ltd with his responsibility for ‘errors’ made by members of his staff.
51. The Committee in considering the evidence adduced in respect of Particular 2(b), concluded that it was so unsatisfactory in nature that no reasonable committee could find it proved. Furthermore, even if the facts are capable of being found proved, no reasonable committee could find that the four issues referred to in paragraph 50 above, could be found to amount to UPC.
52. For these reasons, the Committee concluded that Particular 2(b) should be dismissed.
Decision on Facts
The Committee’s Approach
53. The Chair advised the Committee that the burden of proof lies with ARB and the standard of proof is on the balance of probabilities. The Registered Person did not have to prove or disprove anything.
54. The Chair advised the Committee that the duty to act with integrity requires an ARB registered member to uphold proper standards, comply with the Code and avoid actions which may discredit the profession. This includes dealing with clients fairly and truthfully. The Chair referred the Committee to the key legal authorities including Wingate and Evans v SRA [2018] EWCA Civ 366 where the Court of Appeal stated that:
“In professional codes of conduct, the term “integrity” is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members. …The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards.”
Findings of Fact
Matter 1 – Particular 3 – Found Not Proved “lack of integrity”
55. There was no dispute between the parties that the Registered Person had a professional obligation to act with integrity at all times.
56. On 3 October 2018, Mr Melton submitted a planning application to East Herts Council for a single storey rear extension at his home – Property A (“the Property”). Planning permission was granted on 28 November 2018.
57. On 18 October 2018, the Registered Person wrote to the owners of Property C – Ms TK and Mr JK. The letter referred to the planning application that had been submitted and introduced the Registered Person’s company as Party Wall Surveyors. The letter went on to state:
“We believe that these works are deemed as “Notifiable” works under the Act and may affect your property and would like to offer our services to help safeguard your property against any damage that may be caused by your neighbour’s building work”
58. The letter then set out the requirement for service of a Notice under the Party Wall etc. Act and referred to the option to either consent or dissent. It was noted that the costs would be borne by the building owner. The letter concluded by stating that the Registered Person’s office could be contacted in the event of queries or to find out more and stated that a consultation was free. There was no dispute that the same letter was sent to the owner of Property B – Ms HT. The Committee noted that the Registered Person admitted that the initial Party Wall letter falls short of the guidance issued by the FPWS as it did not adequately explain three matters, namely that: (i) the Adjoining Owner may consent in writing and no surveyors need be appointed; (ii) consent does not affect Party Wall etc. Act rights; and (iii) appointment of a Party Wall Surveyor’s appointment cannot be rescinded.
59. On 30 October 2018, the Registered Person wrote to Mr Melton. The letter stated that the Registered Person had been appointed by Ms HT of Property B and Ms TK and Mr JK of Property C to act on their behalf as Party Wall Surveyor. The letter stated that if any works were “notifiable works” as set out in the Party Wall etc. Act, the Notice would need to be served on any affected neighbouring property prior to commencement of the works. The Registered Person stated that he “would be happy to offer our services as an agreed surveyor and undertake service of Notices and Party Wall Award on your behalf.” The letter stated that Mr Melton could appoint his own surveyor to act jointly with them.
60. As of 30 October 2018, the Registered Person had received signed authority from Ms HT and had a phone call with the owners of Property C who had confirmed that he would be authorised by them. However, the signed authority from them was not received until after 30 October 2018.
61. In addition to the inadequate explanation, ARB’s criticism was that the Registered Person ought to have waited until he had the instruction confirmed in writing before sending the Party Wall letter, dated 30 October 2018, to Mr Melton. The letter sent out in his name was incorrect at the time it was written, and it was submitted on behalf of ARB that the Registered Person’s actions failed to meet the professional standards expected of an architect.
62. In essence, the Registered Person had engaged in speculative marketing of his Party Wall Surveyor services. This was not endorsed by the FPWS. However, the FPWS did not prohibit unsolicited approaches provided that their members complied with the guidance.
63. The Committee noted the wider context. The letter sent to Mr Melton was an initial standard letter. It provided the link to the FPWS explanatory booklet, and the tone and content indicated that the recipient was being invited to make contact for a more detailed explanation. The Registered Person informed the Committee, during his oral evidence, that this is precisely what would happen. He stated that approximately 20-30% of the recipients of the letter would make enquiries but only 2-3% would become a confirmed instruction. There was no “hard sell” or scaremongering. Furthermore, the Registered Person stated, during his oral evidence, that he had obtained advice from RIBA about the content of the standard letter. He also stated that the standard letter was issued in his name but was generated by administrative staff within DPA. The Committee noted that this aspect of the Registered Person’s evidence was not challenged. The Committee found the Registered Person’s evidence on this issue to be straightforward and compelling. The Committee accepted his evidence.
64. The Committee concluded that it may have been inadvisable for the Registered Person to engage in this form of marketing. However, the Committee concluded that it fell a long way short of amounting to a lack of integrity. There was no evidence before the Committee that this was anything other than an administrative error in circumstances where a signed authority had been received from the owner of Property B and verbal consent to act had been received from the owners of Property C.
65. For these reasons, the Committee found Particular 3 of Matter 1 not proved.
Decision on Unacceptable Professional Conduct (UPC)
Additional Evidence
66. At this stage of the proceedings, ARB provided the Committee with two additional series of documents: (i) a Consent Order, dated 18 July 2018, which resulted in a Reprimand (“the Consent Order”); and (ii) an Investigating Panel (IP) decision dated 7 October 2015 (“the 2015 decision”).
67. The Consent Order related to failures to communicate adequately, undertake work as a Party Wall Surveyor and to adequately deal with a complaint. The relevant incidents date back to 2015/2016.
68. Although the 2015 decision had resulted in a determination that there was no case to answer the IP issued the Registered Person with advice. The advice stated as follows:
“…the Architect should be guided in his professional conduct and work by the spirit of the Code even where, as in this case, the party concerned is not the client.
It should be noted that this decision is not a disciplinary finding, and that the advice is not a disciplinary penalty. The Panel, may, however, take the circumstances of this case and the advice given above into account in any subsequent matter which it is called upon to consider in relation to the Architect”
The Committee’s Approach
69. The Chair advised the Committee that whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment; there is no burden or standard of proof.
70. UPC is defined as conduct which falls short of the standard required of a registered person. In reaching its findings on UPC, the Committee recognised that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings or a finding of UPC.
71. In deciding whether the facts found proved amount to UPC the Committee had regard to Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It bore in mind in reaching its decision that for a finding of UPC to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. The Committee also took into account the observation made by Mr Justice Kerr in Shaw v The General Osteopathic Council [2015] EWHC 2721 (Admin) that although the conduct in question must be sufficiently serious, it does not need to be of such gravity that imposing an admonishment would be too lenient.
Submissions
72. The Committee found at the fact-finding stage that the Registered Person (i) sent a letter dated 18 October 2018 in respect of Party Wall Matters which did not adequately explain key terms; (ii) sent a letter dated 30 October 2018 to the Building Owner in which he said he had been appointed by both Adjoining Owners when this was not the case; (iii) failed to provide adequate written terms of engagement to Mr Eaglestone and Mr Savage; and (iv) failed to carry out research and due diligence on the Ridgeway Project.
73. The Presenter did not seek to persuade the Committee that the Party Wall letters (dated 18 October 2018 and 30 October 2018) nor the failing in relation to the Ridgeway Project amounted to UPC. He acknowledged the Committee’s decision at the fact finding stage and conceded that the admissions on their own did not amount UPC. However, he submitted that the failure to provide adequate terms of engagement to Mr Eaglestone and Mr Savage demonstrates a pattern of behaviour which should be marked by a finding of UPC.
74. Mr Hatt acknowledged that the terms of engagement sent to Mr Eaglestone and Mr Savage breached Standard 4.4 of the Code and as a consequence were inadequate. However, he invited the Committee to conclude that the failings were not serious for the following reasons:
i. The breaches were minor in nature;
ii. There were mitigations in place at the time the failings occurred. For example, the clients were professional developers who were aware of the need for professional indemnity insurance, were aware of dispute resolution and the Registered Person’s membership of ARB was on the DPA Ltd website;
iii. There were no serious consequences as the failings did not trigger the complaint to ARB; and
iv. The failings have been remedied.
Decision
75. Although the Registered Person provided Mr Eaglestone and Mr Savage with terms of engagement, a number of the requirements set out in Standard 4.4 were missing. For example, he did not: (i) provide a statement that he had adequate and appropriate insurance; (ii) confirm the existence of any Alternative Dispute Resolution scheme and how they might be accessed; (iii) confirm that he had a complaints handling procedure available on request; and (iv) confirm that he was registered with ARB and subject to the Code.
76. The Registered Person had a duty to be aware of and to follow the terms of the Code of his regulatory body. Standard 4.4 sets out clearly what the terms of engagement are expected to include and is a fundamental requirement. Compliance with these expectations protects the client, the Architect, and the public and provides assurances. It is not aspirational; nor is it onerous or difficult to achieve. It is fundamental to professional work as a registered architect that adequate terms and conditions, covering the full scope of the work to be undertaken are communicated clearly to the client, in writing, at the outset of a project. Clients should not have to use their own endeavours to find out information (from a website or elsewhere) in circumstances where the Code states in clear terms that this information should be provided to them as part of a written contract before any professional work is undertaken. This applies whether the client is a professional developer with significant experience of construction contracts or a residential client instructing an architect for the first time. A failure to do so, has the potential to cause delays when disputes arise, undue stress and anxiety, and financial loss. The Committee did not accept the submission, made on behalf of the Registered Person, that the failings were minor in nature. The fact that the complaints made by Mr Eaglestone and Mr Savage did not relate to the terms of engagement and did not result in serious consequences does not mean that the failings are not serious. In the absence of a good reason, the failure to provide adequate terms of engagement and the potential for this to cause harm, is serious. No good reason for the failures was provided by the Registered Person.
77. The Committee concluded that these omissions are serious not only because they had the potential to lead to misunderstanding and confusion about important matters but because they indicate a disregard for the obligations that come with professional regulation. In reaching this conclusion the Committee noted that the Consent Order related to events which occurred around the same time as the Horsham Project when the outcome of that referral was unresolved. Therefore, the Committee concluded that the Consent Order had no bearing on this decision. However, the Committee noted that Registered Person had received advice in the 2015 decision. Although this ‘advice’ was unrelated to terms of engagement it ought to have alerted the Registered Person to the need to familiarise himself with and adhere to the guidance within the Code.
78. The Committee noted that the failings have been remedied. However, the Committee concluded that the factual findings and the corresponding breaches of the Code are sufficiently serious to adversely impact both on the reputation of the Registered Person and the profession generally. In all the circumstances, the Committee concluded that the Registered Person’s failure to provide adequate terms of engagement to Mr Eaglestone and Mr Savage is sufficiently serious to amount to UPC both individually and cumulatively.
Decision on Sanction
Submissions
79. The Presenter did not make a “bid” for any particular sanction and acknowledged that in light of the Committee’s decision on UPC there are no public protection issues to be addressed. However, he reminded the Committee of the need to declare and uphold proper standards of conduct and competence and the principle of proportionality.
80. Mr Hatt invited the Committee to conclude that there was an abundance of mitigating features in this case including: (i) little or no risk of harm; (ii) a ‘virtually’ unblemished career save for the 2018 Consent Order; (iii) evidence of remorse; (iv) admissions at an early stage; (v) timely remedial action; and (vi) positive testimonials from a range of professionals who work within the construction industry.
81. Mr Hatt directed the Committee’s attention to the correspondence between the Registered Person and ARB following receipt of the various complaints. For example, in November 2020 the Registered Person invited ARB to find that there was no basis for a finding of UPC, in respect of the terms of engagement allegation relating to Mr Savage, in light of the “de minimis” nature of the omissions and the remedial steps the Registered Person had taken. In July 2021, in relation to the Eaglestone complaint, the Registered Person confirmed that he had not only accepted his terms of engagement had been deficient but had corrected these deficiencies. Mr Hatt informed the Committee that once the scope of allegations became clear, the Registered Person (through his solicitors) sought to agree a consensual resolution with the ARB. Mr Hatt submitted that the proposed resolution was in line with the Committee’s findings, in that, none of the disputed allegations were found proved. He invited the Committee to take this feature into account in determining what, if any, sanction should be imposed. He drew the Committee’s attention to the impact the regulatory process has had on the Registered Person and submitted that the lengthy process has been a ‘punishment’ in itself.
The Committee’s Approach
82. The Committee took into account its UPC finding and the submissions made by both parties.
83. The Committee also took into account the Sanctions Guidance (“SG”). The Committee was mindful that the purpose of any sanction is not to punish the Registered Person but to protect the public and the wider public interest. The public interest includes upholding public confidence in the profession and declaring and upholding proper standards of conduct and competence.
84. The Committee applied the principle of proportionality by taking into account the aggravating and mitigating factors, weighing the Registered Person’s interests with the public interest, and considering the available sanctions in ascending order of severity.
Decision
85. The Committee noted that the Registered Person’s inadequate terms of engagement had the potential to cause delay, undue stress and anxiety, and financial loss. However, no actual harm was caused to either Mr Eaglestone or Mr Savage and the risk of harm was low. Therefore, the Committee concluded that there are no ongoing public protection concerns. The Committee was mindful that the Registered Person has previously been subject to regulatory action in the form of a Consent Order and non-disciplinary advice but this was balanced against the testimonials from various professionals within the construction and property industries which attest to the Registered Person’s long history of professionalism. The Committee also noted that the Registered Person accepted that his terms of engagement were inadequate at an early stage of ARB’s regulatory process. He apologised and expressed remorse which the Committee accepted as genuine. He also demonstrated insight by taking appropriate steps to correct the deficiencies. The Committee was satisfied that the level and scope of the Registered Person’s insight is commensurate with the seriousness of the failings. Although the failings are serious, they are towards the lower end of the spectrum in terms of omissions of this type. The Committee was also satisfied that the Registered Person now ensures that his current terms and conditions are in compliance with Standard 4.4 of the Code.
86. The Committee noted that the Registered Person had engaged constructively with ARB following receipt of the complaints from Mr Eaglestone and Mr Savage. This is to the Registered Person’s credit. However, the Committee concluded that this should not be characterised as a mitigating factor as there is an expectation of all professionals subject to a regulatory regime that they will fully cooperate with their regulator, in relation to the investigation and the ultimate resolution of any allegations made against them. The Registered Person accepted that obligation when being admitted to the ARB register. The Committee did not accept that the length of the regulatory process was itself a mitigating factor, nor was ARB’s decision to pursue the disputed allegations to a regulatory hearing. ARB was entitled to take the view that the proposed resolution was insufficient to meet its public interest duty to protect the public. The fact that the disputed allegations were not found proved does not undermine the appropriateness of that decision.
In light of the above, the Committee identified the following as mitigating factors:
i. The omissions caused little or no risk of harm;
ii. The expressions of remorse were genuine;
iii. Appropriate steps have been taken to ensure future compliance with Standard 4.4 of the Code; and
iv. The positive testimonials demonstrate a high level of professionalism.
87. The only aggravating factor is the Registered Person’s adverse disciplinary history.
No Sanction
88. The Committee first considered whether to conclude the case by taking no action on the Registered Person’s registration. In doing so, the Committee considered paragraph 6.1.2 of the SG which states:
“In rare cases the PCC may conclude, having had regard to all the circumstances, that the level of seriousness of the architect’s conduct or incompetence is so low that it would be unfair or disproportionate to impose a sanction. Where the PCC has determined a sanction is not required, it is particularly important that it is clear in its written reasons as to the exceptional circumstances that justified imposing no sanction.”
89. Exceptional circumstances are unusual, special, or uncommon. The Committee determined that neither the procedural history of this case nor the specific circumstances that arose, could be properly characterised as exceptional. Furthermore, the Committee concluded that the finding of UPC alone would not be sufficient, proportionate, or in the public interest. In reaching this conclusion the Committee was mindful that the Registered Person’s failings diminish both his reputation and that of the profession generally. The Committee therefore concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction.
Reprimand
90. The Committee considered whether to impose a Reprimand. The Committee took into account the non-exhaustive factors as set out in paragraph 6.2.2 of the SG which indicate when a Reprimand may be the appropriate and proportionate sanction.
91. The Committee noted that most of the factors referred to in paragraph 6.2.2 apply to the circumstances of this case. The Committee was satisfied that there is no ongoing risk to the public and the failure to provide adequate terms of engagement did not seriously affect Mr Eaglestone or Mr Savage as that did not form part of their complaint to ARB. The Committee acknowledged that there was evidence of genuine insight and remorse and appropriate corrective steps had been taken in a timely fashion. The Registered Person has had a long and successful career as an architect and the failings were not as a result of a deliberate attempt to exploit his clients or take advantage of them. In these circumstances, the Committee concluded that a Reprimand would be sufficient to mark the seriousness of the Registered Person’s failings. The Committee was satisfied that a Reprimand would re-affirm to the Registered Person, the profession and the public the importance of complying with the Code and the high standards of conduct expected of Architects.
92. The Committee was mindful that the Registered Person has previously been made subject to a Reprimand and therefore before reaching a concluded view considered whether to impose a Penalty Order. The Committee concluded that a Penalty Order would add nothing of materiality to the need for public censure and would be unduly punitive.
93. Therefore, the Committee concluded that a Reprimand would be appropriate and proportionate.
94. That concludes this determination.