Mr Daniel Campbell

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

DANIEL HUGH CAMPBELL (094816K)

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Held in person on:

28-30 October 2024

At:

Novotel Hotel Glasgow Centre
181 Pitt Street
Glasgow
Scotland
G2 4DT

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Present:

Martin Winter (Legally Qualified Chair)
Stuart Carr (PCC Architect Member)
Rachel Childs (PCC Lay Member)

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The Architects Registration Board (“the ARB”) was represented by Mr Tom McEntegart (“the Presenter”) instructed by Anderson Strathern LLP.

Mr Daniel Campbell (“the Registered Person”) attended the hearing and was represented by Mr Jonathan Goodwin.

 

Allegation

1. The allegation against the Registered Person, is that he is guilty of Unacceptable Professional Conduct (“UPC”).

2. The particulars relied upon by the ARB in support of the allegation are as follows:

1: The Registered Person failed to appropriately manage a conflict of interest
2: In respect of 1, above:
a. his actions lacked integrity;
b. his actions were dishonest
3: The Registered Person failed to adequately supervise non-registered members of staff in relation to the contract administration of the project.

3. In doing so, it is alleged that the Registered Person acted in breach of Standards 1.3, 3.4 and 6.3, 6.4 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

 

Preliminary Matters – Application to Amend Particulars

4. The Case Presenter referred the Committee to his written application to amend the charge dated 21 October 2024.

5. ARB had reviewed the available evidence following receipt of the defence bundle relating to Particular 2b and had concluded that there was no longer a realistic prospect of the allegation of dishonesty being proved. In summary, ARB conceded that the process of joining the services HOKO Design and HOKO Build was, viewed objectively, unlikely to be considered dishonest.

6. ARB applied to the Committee under Rule 26 of the ARB Professional Conduct Rules 2022 (“the Rules”) to amend the allegation to delete Particular 2b. It was common ground between the parties that no injustice would arise from this amendment.

7. Mr Goodwin for the Registered Person submitted that no objection was taken with the application and agreed that no injustice would be caused by the amendment.

8. The Chair advised the Committee that Rule 26 allowed such an amendment, that there was agreement between the parties that no injustice would be caused and that it was in the interests of the efficient disposal of regulatory proceedings that allegations which had no prospect of success should be abandoned.

9. Having heard submissions from both parties and having received legal advice from the Chair, the Committee allowed the application and Particular 2b was deleted from the charge.

10. The Referrer, Jonathan Rennie (“the Referrer”), sought to develop a property in Giffnock (“the property”) around November 2020. Following an online search, the Referrer contacted the Registered Person, a registered architect, who is the owner and founder of Hoko Design Limited (“Hoko Design” or “HD”). Thereafter, the main contact at Hoko Design was FS, who the Referrer believed was an architect. In fact, Mr FS was not a registered architect but was an employee with Hoko Design and described in correspondence as an “Architectural Director”.

11. The Referrer was advised by Mr FS that Hoko Design worked well with building contractors Hoko Build Limited (“Hoko Build” or “HB”) as they were “in-house”. The Referrer did not have a contractor in mind for the project and states that he did not understand the concept of a conflict of interest arising between Hoko Design and Hoko Build if they both were involved in the project. The Registered Person is the majority shareholder and a director of both companies.

12. A tender process was entered into to find the most appropriate building contractor and eventually the Referrer chose Hoko Build. Mr JD of Hoko Build was the main contact.

13. A professional service contract was agreed between the Referrer and Hoko Design in which Hoko Design would act as contract administrator for the project. A building contract was entered into between the Referrer and Hoko Build for the construction work. The Referrer noted that the liquidated damages clause in the building contract was set at zero. He was concerned that this removed an incentive for the building contractor to make every effort to achieve the agreed completion date.

14. The Referrer was provided with assurances from Mr FS that these arrangements were usual and he agreed both contracts notwithstanding having some reservations. He stated that the start time for the project had already slipped from September to October 2021 and he felt under pressure to start as soon as possible so that the work could be completed by 1 November 2021. The Referrer had expected to be in alternative accommodation for approximately 4 weeks and needed to move back into the property by the start of November 2021.

15. The Referrer believed that the Registered Person would have oversight of the project and that Mr FS would be reporting back to him on a regular basis. The project commenced but soon fell behind schedule and the end date moved back several weeks causing the Referrer and his family to seek further alternative accommodation with friends and family. The Referrer raised his concerns with the Registered Person.

16. On 6 January 2022 a meeting took place between the Referrer, the Registered Person and Mr FS at the property. By this time Mr JD had left the project and had left Hoko Build. Other trades were then hired by the Registered Person to complete the outstanding work. It was at this point that the Referrer says that he realised the extent of the conflict of interest that had arisen. Hoko Design, through Mr FS, was acting as contract administrator in respect of the building contract with Hoko Build, which was now represented by the Registered Person. The Registered Person was the majority shareholder of both companies. The Referrer then recognised that the Registered Person could not be acting in his best interests whilst also acting for Hoko Build.

17. On 3 March 2022 the relationship between the Referrer and the Registered Person’s companies broke down and the contract was terminated by the Referrer. On 1 August 2022 the Referrer made a formal complaint to the ARB highlighting, among other matters, the poor management of the conflict of interest.

18. During the ARB investigation the Registered Person confirmed that he had three separate businesses (Hoko Design, Hoko Build and Hoko Shop) that existed as separate legal entities but operated in a collegiate fashion to provide a “one stop shop” for clients seeking design, build and shopping resources for small domestic projects. He stated that he believed that he was always acting in the best interests of the client. He emphatically denied acting dishonestly or with a lack of integrity but conceded that he had not managed the conflict of interest properly and had failed to supervise Mr FS effectively in respect of the contract administration of the project.

Findings of Fact

19. The Registered Person admitted factual particulars 1 and 3. The Chair announced those facts as proved by admission in accordance with Rule 25(d).

20. In reaching its decision the Committee carefully considered the submissions made by both parties together with the evidence presented to it.

21. The Committee also had regard to the advice of the Chair that, in respect of disputed issues of fact, the onus of proof was on ARB and that the standard of proof was the civil standard of the balance of probabilities. So, it is for ARB to prove the factual particulars set out in the allegation. It is not for the Registered Person to disprove them. The fact that the Registered Person chose to give evidence does not shift the burden onto him, it remains throughout on ARB at the fact-finding stage. In determining the facts, the Committee considered the evidence in the round and noted that it was entitled to draw reasonable inferences from established facts, but that it was not to speculate.

22. The Committee noted the expert evidence provided by Mr Geddes (the Inquirer instructed by ARB). This expert evidence had been admitted to provide the Committee with information and opinion evidence that is within the witness’s expertise but which may be outside the Committee’s own knowledge and experience. The Committee was reminded that expert evidence was only a part of the evidence as a whole and presented to assist the Committee with particular aspects of the evidence. However, the Committee was reminded that if it does not accept the evidence of an expert, the Committee does not have to act upon it.

23. The Committee had regard to the guidance published by ARB and to the content of the Architects Code. In reaching its decision, the Committee carefully considered the live evidence of the Registered Person, the Referrer and the expert witness Mr Geddes together with documents provided by both parties.

24. The Committee considered the legal advice provided by the Chair, which it accepted. The Committee noted the following authorities in relation to the issue of integrity. Wingate and Evans v Solicitors Regulation Authority (2018) EWCA 366 confirmed that a professional disciplinary tribunal has specialist knowledge of the profession to which the registered person belongs and of the ethical standards of that profession. Accordingly, such a body is well placed to identify lack of integrity.

25. In Hoodless and Blackwell v Financial Services Authority (2003) (FSMT 0007) the court stated that “integrity involves the application of objective ethical standards. In our view integrity connotes moral soundness rectitude and steady adherence to an ethical code”. The inability to distinguish between what is regarded by ordinary standards as honest conduct is an example of a lack of integrity.

26. In Batra v Financial Conduct Authority (2014) UKUT B30 – Batra was found to lack integrity because he was reckless as to the accuracy of financial information put in mortgage application forms. It was not clear that he knew the amounts were wrong, it was clear that he did not bother to check. As such his disregard for whether the contents of a mortgage application were correct demonstrated a clear lack of integrity. This establishes that recklessness may itself demonstrate a lack of integrity.

27. The Committee was advised of the definition of recklessness set out in R v G (2003) UKHL 50, [2004] 1 AC 1034, where the House of Lords stated that a person acts recklessly when he is aware of a risk that a circumstance exists or a result will occur and it is, in the circumstances known to him, unreasonable to take the risk.

28. In the case of Vukelic v FSA (reported 13 March 2009) – the tribunal concluded that Vukelic had “turned a blind eye” to what was obvious and thus lacked integrity. The tribunal also cautioned against trying to formulate a comprehensive test for lack of integrity observing that it can be readily recognisable by those with specialist knowledge and/or experience in a particular market.

29. This caution was reinforced in the case of the Solicitors Regulatory Authority v Chan (2015) EWHC 2659 (Admin) – in which Davis LJ stated, “want of integrity is capable of being identified as present or not, as the case may be, by an informed tribunal or court by reference to the facts of a particular case”. In that case the Court identified that a heedless indifference to the interests of the client, because of a desire to maximise profits, amounted to a lack of integrity.

30. In Holy v Law Society (2006) EWHC 1034 Admin Holy, a solicitor, had arranged loans between clients without getting the express written authority from both clients. This was held to be reckless disregard for regulations affecting solicitors and lacked integrity.

31. The Committee then went on to consider the remaining disputed particular and makes its findings of fact as follows:

Particular 2a: In respect of allegation 1, his actions lacked integrity

32. The Committee does not find the facts proved.

33. Mr Geddes, was measured and balanced in his evidence which was in all material respects unchallenged. The Committee accepted the Report of Mr Geddes dated 10 July 2024.

34. The Panel found the Referrer to be clear and coherent in his evidence. He appropriately conceded his incomplete memory of some facts (due to the passage of time). Importantly, he confirmed that he had an awareness of the connection between HD and HB through the shared name and the links that were clearly signposted on the Hoko website. There was no suggestion of any subterfuge or attempt to disguise the link. He stated that, although he was aware of the connection, he was unfamiliar with the concept of a conflict of interest, never had this concept explained to him and, therefore, was never able to give informed consent for HB and HD to be involved in his project when a conflict of interest was present.

35. The Committee found the Registered Person to be thoughtful and deliberate in giving evidence and reflective in respect of his practice. His evidence was open and balanced. He readily accepted his failings and was credible in his responses. He showed insight and demonstrated empathy for the plight of the Referrer.

36. The evidence relating to the setting up of HB came exclusively from the Registered Person and was supported by documentary evidence comprising minutes of meetings at HD. The Panel was satisfied that HB was part of the development of the business plans of HD designed to create a better service for clients. Although profit was an inevitable goal, it was not intended to be at the expense of clients’ interests.

37. It was apparent to the Committee that the Registered Person was very enthusiastic about HB and the “one stop shop” business model for homeowners wanting small development projects. This enthusiasm was evident in the minutes where some concern was expressed, by others present at the meetings, that matters might have moved too quickly.

38. The Committee noted the evidence of the Registered Person in relation to how HB would provide tenders to clients first and then seek tenders from other potential contractors. This process was deliberately designed to prevent HB from having an unfair advantage by knowing the value of competitors’ tenders before tendering themselves. This, in the Committee’s view, demonstrated that the Registered Person was trying to behave ethically and was mindful of the need to maintain proper standards when creating HB.

39. In respect of the project, the Registered Person conceded that he was unaware of any problems with the progress of the build until 18th December 2021. The Committee viewed this as evidence not only of a lack of supervision of his employee, but also evidence of a failure to be able to manage the conflict of interest, whether he had recognised the existence of the conflict or not.

40. In January 2022, when he stepped into the role vacated by Mr JD of HB, the Registered Person said that he had still not yet recognised the conflict of interest that had by this point crystallised in a very obvious way. He stated that he wanted to address the concerns of the Referrer and achieve completion of the project without any disadvantage to his client. In hindsight, he said, that was when the conflict of interest should have been apparent. The Committee is satisfied that he should have recognised and acted upon the conflict of interest much sooner and should have had procedures in place at the very outset of the contract.

41. The Committee viewed the behaviour of the Registered Person, once the conflict of interest had crystallised, as being inconsistent with a lack of integrity. He tried to manage the situation as best he could with the best interests of his client at heart. He clearly expended significant effort to put matters right such that by the end of January he received effusive thanks, by email, from the Referrer for the efforts he had made.

42. Soon after, however, matters changed and the relationship deteriorated. The Registered Person became more cautious in his dealings with the Referrer as the prospect of potential litigation arose. In March 2022 the contract was terminated.

43. The Committee is satisfied that the breach of Standard 1.3 arose through a mixture of naivety, inexperience and an absence of more experienced figures that might have curtailed the Registered Person’s obvious enthusiasm for the HB project and steered him in the correct direction. The Registered Person misunderstood his regulatory obligations and, by own admission, failed to identify the risk of a potential conflict of interest arising by virtue of the HB and HD relationship.

44. The Committee is satisfied that this was not a heedless disregard for the interests of his client and he was not reckless in his failure to manage the conflict of interest. This was not a case where the Registered Person was aware of the risk that a conflict of interest might arise and then unreasonably took that risk. The Registered Person focussed on the positive outcomes for his clients and his business without proper, or any, consideration of wider risks and the regulatory obligations of Standard 1.3 and the ARB guidance for managing conflicts of interest.

45. That guidance states that “declaring a conflict of interest plays a vital role in ensuring that you are acting with honesty and integrity as a professional person” however it does not follow that failing to declare, or manage, the conflict will necessarily amount to a lack of integrity in every case. The Registered Person, by failing to manage the conflict of interest through proper disclosure of its existence and explaining the potential consequences, could not rely upon such disclosure to demonstrate that he was acting with honesty and integrity, but that does not mean that he was not.

46. The Committee found that there was no clear evidence proving a lack of integrity. There was no attempt to disguise the connection between HB and HD and the Referrer was aware of the link. In fact, the link was part of the attraction for the Referrer who wanted the convenience and efficiency of the “one stop shop” proposal. The Registered Person had put in place procedures to prevent HB from having an unfair advantage in the tendering process. This demonstrated that ethical conduct was being considered by him at the relevant time.

47. The Panel is satisfied that the Registered Person had a genuine, but misplaced, belief that he was acting in the best interests of his client in all respects. In fact, what he demonstrated was a lack of appreciation of what was proper in the circumstances and in accordance with the Standards.

48. The Committee noted that the legal authorities in respect of the issue of integrity confirm that a specialist tribunal is best placed to assess whether a lack of integrity is proved or not. This Committee is not satisfied, on the balance of probabilities, that the Registered Person demonstrated a lack of integrity in respect of his failure to manage a conflict of interest.

49. In conclusion, the Committee finds the facts not proved in relation to Particular 2a.

Unacceptable Professional Conduct

50. The Committee heard submissions from Mr McEntegart on behalf of ARB and Mr Goodwin on behalf of the Registered Person and accepted the advice of the Legally Qualified Chair. The Committee reminded itself that a finding of UPC is a matter for its own independent judgement having regard to any facts found proved. There is no burden or standard of proof.

51. The Committee noted that UPC is defined in section 14(1)(a) of the Architects Act 1997 as conduct which falls short of the standard required of an architect. The Panel further noted that misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as: “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.

52. In the Registered Person’s case the standards required to be followed by the Registered Person are contained in the Code. 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 result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be considered should it be necessary to examine the conduct or competence of an architect.

53. The Committee had regard to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and noted that for a finding of UPC to be made out “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” is required. The Committee also recognised that any failing must be serious as was confirmed in the case of Vranicki v Architects Registration Board [2007] EWHC 506 (Admin).

54. The Committee also reminded itself of the relevance of drawing a distinction between a single act and multiple acts of concern, and that “mere negligence does not constitute misconduct” and “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions and a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance.” (R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin).

55. The issue for the Committee in this case is whether the failings on the part of the Registered Person were sufficiently serious as to amount to UPC.

56. Mr Goodwin submitted that, notwithstanding the Registered Person admitting UPC in his defence document, this remained a question for the Committee and he asserted that the facts found proved did not cross the threshold of seriousness. He referred to the “positive” comments set out in the finding of facts.

57. Mr McEntegart submitted that the admitted facts of Particulars 1 and 3 demonstrated a serious failing in respect of Standards 1, 3 and 6. He highlighted the impact upon the Referrer’s family and the serious failure by the Registered Person to appreciate or observe the content of ARB published guidance and Standards despite reading them.

58. The Committee considers that the Registered Person’s actions fell short of the following Standards of the Code:

i. Standard 1.3
ii. Standard 3.4
iii. Standard 6.3

59. The Committee finds that Standard 1.3 was breached from the outset of the project and endured throughout. The failure in this regard cannot be regarded as isolated as this was a practice adopted by the Registered Person for all of the design and build projects involving both HD and HB. The failure to recognise the presence of a conflict of interest (whether potential or extant) is a serious failure in the view of the Committee.

60. Standard 3.4 required the Registered Person to ensure clear lines of supervision by an architect were made known to clients for all projects. The Committee finds that the decision to delegate to Mr FS and not make clear to the Referrer the identity of the architect with control and management amounted to a serious failing.

61. The absence of adequate supervision of Mr FS, and an over-reliance on his verbal assurances, compromised the Registered Person’s ability to observe this standard. The impact on the Referrer through delays to the project was significant and, in part, attributable to the lack of supervision and management of the project.

62. The Committee finds Standard 6.3 was breached through the inability of the Registered Person to properly monitor the progress of the project due to the delegation to Mr FS. The Committee is satisfied that the Referrer did not get sufficient information as to progress or issues affecting quality. The Registered Person did not absolve himself of this responsibility through delegation.

63. The Committee has approached the issue of seriousness taking all these factors into account. The Committee is satisfied that the failings of the Registered Person, taken together, are so serious that they amount to UPC.

Sanction

64. Having found the Registered Person’s actions amounted to UPC, the Committee then went on to consider what, if any, sanction to impose in this case.

65. The Committee heard submissions from Mr McEntegart for ARB and Mr Goodwin for the Registered Person and received legal advice from the Chair, which it accepted. The Committee took careful note of the ARB Sanctions Guidance published in 2022.

66. The Committee had regard to the public interest in disciplinary proceedings which includes the need to protect the public, maintain confidence in the profession and ARB and to declare and uphold proper standards of conduct, behaviour and competence. The Committee was mindful that the purpose of imposing a sanction is not to be punitive, although it may have a punitive effect, and that any sanction must balance the rights of the Registered Person against the need to uphold proper standards and protect the public.

67. The Committee first assessed the seriousness of the finding of UPC with reference to the facts found proved during the hearing and by considering the competing aggravating and mitigating factors in accordance with the guidance provided by the case of Fuglers & Ors v Solicitors Regulation Authority [2014] EWHC 179.

68. The Committee considered the following aggravating factors were present:

i. The impact on the Referrer and his family was significant.

69. The Committee considered the following mitigating factors:

i. Demonstrable insight and remedial steps taken at the time and thereafter
ii. Changes to business practice to avoid repetition
iii. Genuine remorse and apology
iv. The conduct occurred at a time of significant personal stress
v. The conduct was not deliberate
vi. Evidence of exemplary character both professionally and personally
vii. Open and frank admissions at an early stage

70. The Committee considered the character references from Mr F and Mr M and viewed them in light of the factors set out at paragraph 5.5 of the guidance on sanctions. The Committee was satisfied that they were prepared for the purposes of these proceedings and inferred that both referees were aware of the allegations against the Registered Person. They provided some assistance is assessing the character of the Registered Person and were consistent with the findings of the Committee in respect of the Registered Person’s entrepreneurial spirit, enthusiasm and endeavour to pursue an ethical approach to his professional life.

71. The Committee was satisfied that this case is at a lower level of seriousness as compared to the range of cases that amount to UPC. There was no finding of a lack of integrity and allegations of dishonesty were not pursued by ARB. This was not a wilful disregard of regulatory obligations but was an error from an architect at the start of his career.

72. The Committee was able to attach significant weight to the mitigating factors and was satisfied that the Registered Person has been able to look back at his conduct with a self-critical eye and that he has acknowledged fault, expressed contrition and apologised. The Committee was satisfied that the Registered Person has understood his failings, the underlying reasons for them, and the impact his actions had on the Referrer.

73. When considering which sanction was most appropriate and proportionate the Committee adopted the approach set out in the case of Rashid v General Medical Council (reported at 2006 EWHC 886 Admin) to consider the least penalty first and to ask itself whether that is sufficient and, if not, then go on to the next, and so on.

74. The Committee first considered whether to take no action other than to mark the finding of UPC. However, to do so would require exceptional circumstances to be present. The Committee is not of the view that the seriousness is so low to justify no sanction. The Committee was conscious that the Registered Person would likely attract a greater adverse reputational impact in light of his public profile, but the requirement to protect the public and uphold public confidence is a priority and the circumstances of this case were not exceptional and a sanction was required.

75. The Committee considered the next available sanction, Reprimand. This sanction is appropriate for cases at the lower end of seriousness. The following factors were identified as being present.

i. There is no evidence that the Registered Person poses a risk to the public; the Committee is satisfied that the Registered Person has learned and corrected his practice
ii. There is evidence of genuine insight and remorse; the Committee has found that the Registered Person has reflected upon his conduct
iii. The Registered Person has taken corrective steps as demonstrated by closing HB and reviewing his practice
iv. There is evidence of previous good disciplinary history
v. The Registered Person’s actions were not deliberate.

76. All these factors are present in the non-exhaustive list of factors at paragraph 6.2.2 of the ARB Sanction Guidance as being consistent with the imposition of a Reprimand. The Committee considered that these factors carried significant weight. The Registered Person gave evidence and his assertions regarding insight and remorse were, in the view of the Committee, genuine and heartfelt. The Committee noted that there was a significant impact upon the Referrer, but this contrary factor was not sufficient to displace the factors that would support a Reprimand.

77. The Committee considered that a Reprimand was an appropriate sanction in all the circumstances. The Committee checked this decision by assessing the factors that would militate towards the next available sanction, a Penalty Order. The Committee was satisfied that none of the factors that would suggest a Penalty Order was the appropriate sanction in this case were present. There was little, if any, financial benefit to the Registered Person from his misconduct, the failings found are not too serious to warrant a reprimand and there is evidence of full insight and remorse.

78. Therefore, the Committee imposes a Reprimand.

79. That concludes this determination.