Mr Daniel Marçal
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Daniel Robert De Almeida Marçal (072365G)
Held as a video conference
5-8 October 2020
8 January 2021
1-5 and 8-10 February 2021
8-10 and 26 March 2021
20 April 2021
13 and 24-25 May 2021
12 and 13 July 2021
Emma Boothroyd (Chair)
Roger Wilson (PCC Architect Member)
Martin Pike (PCC Lay Member)
In this case, the ARB is represented by Ms Kathryn Sheridan of Kingsley Napley LLP.
Mr Daniel Marçal has attended part of this hearing and is assisted by McKenzie Friend Mr Ian Salisbury.
1. did not provide adequate terms of engagement contrary to standard 4.4 of the Architects Code;
2. did not produce an adequate design in line with: (b) Building Regulation requirements;
3. did not have effective systems in place to ensure that his practice was run professionally and that projects were regularly monitored and reviewed, contrary to Standard 4.1 of the Architects Code;
4. did not ensure that he had adequate and/or appropriate professional indemnity insurance;and that by doing so, he acted in breach of Standards 4, 4.1, 4.4, 4.5 and 8.1 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).
The sanction imposed is a 12-month suspension order.
- In this matter, ARB was represented by Ms Sheridan. Mr Marçal (the “Respondent”) attended and was represented by Mr Salisbury.
- The Respondent faces the following allegation:
That he is guilty of unacceptable professional conduct.
The particulars in support of that allegation are as follows:
- The Respondent did not provide adequate terms of engagement contrary to Standard 4.4 of the Architects Code;
- The Respondent did not produce an adequate design in line with:
- The client’s requirements and/or brief
- Building Regulation requirements
- The Respondent did not have effective systems in place to ensure that his practice was run professionally and that projects were regularly monitored and reviewed contrary to standard 4.1 of the Architects Code;
- The Respondent did not ensure that he had adequate and/or appropriate professional indemnity insurance;
- The Respondent placed himself in a position of conflict of interest by soliciting money from potential suppliers without the knowledge or consent of his clients;
- The Respondent’s actions at particular 5 were dishonest and/or lacked integrity.
- As a preliminary issue, the Committee considered the application of Mr Salisbury whether it had jurisdiction to consider the allegation.
- Mr Salisbury made lengthy submissions to the Committee. In summary Mr Salisbury’s submissions were that the procedure followed by ARB and the Investigating Panel was not permitted by the Architects Act 1997 (the Act) and as a result the PCC did not have jurisdiction to hear the matter because the referral of the allegation was ultra-vires. He relied on two main particulars, firstly, that in seeking the input of Mr A and Ms B (the “Complainants”) who were the clients of the Respondent, ARB had acted outside the powers granted to it by the Act and had effectively “coached” or “schooled” them into making a complaint. Secondly, the Investigations Panel (IP), when deciding to add two further particulars to the allegation to be referred to the PCC, had acted outside the powers conferred on it by the Act. There was no effective “report” to the PCC by the IP of a case to answer and therefore the whole process was effectively “ultra- vires”. The application made by Mr Salisbury was that for these reasons the PCC could not proceed to consider any of the allegations.
- Ms Sheridan set out her argument in a skeleton argument which was provided to the Respondent and his representative in advance of the hearing and also to the Committee. In it, she set out the arguments and examples which, she submitted, demonstrated that Mr Salisbury’s interpretation of the Act was incorrect and that ARB had acted properly and in accordance with the provisions of the Act and the rules made pursuant to the enabling provisions. In her submissions she expanded on the points made within the skeleton and replied to the submissions of Mr Salisbury.
- After the Committee retired to consider its decision but before the decision was handed down, Mr Salisbury submitted that he had further submissions to make regarding the abuse of process implications of his submissions. Mr Salisbury stated that he had now had time to reflect upon the cases that were cited by Ms Sheridan and referred to by the Legally Qualified Chair; he had further points to make about the effect of those cases. He submitted that the Respondent had been disadvantaged as Mr Salisbury was unfamiliar with the cases and had not had an opportunity to consider them.
- The Committee determined to allow Mr Salisbury to make further submissions and gave Ms Sheridan an opportunity to reply.
- Mr Salisbury submitted that ARB had engaged in prosecutorial gross misconduct in the way it had acted in bringing the case to the PCC. In his submissions he listed the areas in which he stated this gross misconduct had occurred which can be summarised as follows:
- Approaching Ms B and Mr A to make a complaint;
- Acting outside its powers conferred by the Act in so doing;
- Flawed referral to the Investigations Panel (IP) as it was disingenuous;
- Improper consideration of the evidence by the IP in breach of the rules;
- Addition of allegations by the IP outside its remit;
- Flawed referral to the PCC by the IP;
- Correspondence between ARB and the PCC Chair.
- In respect of (vii) Mr Salisbury conceded that this had not resulted in any prejudice to the Respondent. When asked by the Chair for a summary of the prejudice caused by the other matters and the effect on the Respondent’s ability to have a fair hearing Mr Salisbury submitted that if proper process had been followed the allegation may not have reached the PCC. He submitted that the effect of this is that there cannot be a fair hearing of anything that has been improperly brought to the PCC.
- The Committee has considered very carefully whether it should continue to hear the case against the Respondent in the light of the submissions made. In making that decision the Committee accepted the advice of the Legally Qualified Chair and had regard to the relevant cases set out by both parties and the cases on abuse of process referred to.
- The Committee examined the procedure leading to the referral of the allegation to the PCC and had regard to all of the documents in the bundle.
- ARB became aware of a judgment made by the High Court in the case of Freeborn v Marcal in around March 2019. On 12 April 2019 ARB wrote to the Respondent viaemail setting out that having considered the judgment it raised a number of concerns regarding the Respondent’s conduct and/or competence. Further information including documentation was requested from the Respondent before reaching a decision whether to carry out an investigation.
- The same day, less than two hours later, the Respondent set out his response in an email. He explained why he did not agree with the findings of the judge and set out why the judge had made errors of fact and law in reaching the decision.
- On 14 May 2019 ARB sent a letter to Ms B which indicated that ARB considered it was appropriate to consider some of the matters raised in the judgment and to determine whether an investigation should be carried out. The letter went on to ask whether Ms B or Mr A would be prepared to engage with ARB to support the investigation and provide relevant documents.
- On 15 May 2019 the day Ms B received the letter, she responded via email to ARB confirming that she and Mr A would be “happy to support the ARB in the proposed investigation…”
- On 16 May 2019 ARB responded to Ms B and set out a summary of what was required including a request for copies of documents. Attached to that email were a number of information documents about the complaints process and a copy of the Code of Conduct 2017.
- On 19 May 2019 Mr A responded to that email with a copies of the documents requested. The email concluded with the following:“In terms of our complaint against Mr Daniel Marcal, we think there are six areas where he fell significant below the standards that we should reasonable expect from a competent architect: (sic)” The email went on to list 6 areas of complaint including a failure to agree a brief, a failure to manage the project, changing the design without telling them, recommending suppliers and then requesting introductory fees and telling them they could use the cinema even though it wasn’t safe and didn’t comply with fire regulations.
- On 28 May 2019 ARB received a copy of the Respondent’s bankruptcy order and it contacted Ms B to enquire if she was aware of this and whether it affected recovery of the judgment amount. Ms B responded on the same day and stated as follows:“It will have an adverse effect on our ability to receive our court settlement…..Mr Marcal had not insured himself adequately and the amount covered by the insurance was limited to £250,000…We are unlikely to recover anything of the legal fees and only a fraction of the project costs.”
- ARB confirmed to Ms B that as a result of this new information a further allegation would be added for the Respondent to comment upon which was that the Respondent did not have adequate professional indemnity insurance.
- Looking at the events up to this point the Committee could not agree with Mr Salisbury that ARB had done anything that was not permitted by the Act. At the point of receipt of the judgment, it appeared to the Registrar that the Respondent may be guilty of unacceptable professional conduct and on the 19 and 28 May 2019 Ms B and Mr A made such an allegation against the Respondent. Once the allegation is made the Act requires under Section 14(2) an investigation “by persons appointed in accordance with rules made by the Board.”
- On 24 June 2019 the matter was referred to the Investigations Panel (IP) who are the persons appointed to investigate under the rules made by ARB. The background to the referral stated as follows,“On 27 February 2019 a judgment was made in the High Court of Justice Queen’s Bench Division Technology and Construction Court in the case of Freeborn v Marcal (2019). The case came to ARB’s attention following press coverage. After reviewing the judgment, ARB contacted the Architect with allegations derived from the judgment. On 22 May ARB contacted the claimants in the case. The claimants subsequently became the primary complainants in the case, with an additional particular raised on behalf of the registrar.”
- The Committee considered that this was entirely consistent with the correspondence and it could find no evidence that the referral to the IP was disingenuous or flawed or in some way unfair to the Respondent. It did not accept that Mr A and Ms B were unfairly pressured or schooled to make complaints that they did not want to.
- The terms of the Act provide for an allegation of UPC (defined as conduct which falls short of the standard required of a registered person) to be investigated by persons appointed by ARB who are the IP. Mr A made such an allegation in his email of 19 May 2019 in express terms and set out the particulars in support of that allegation. Further particulars of how the Respondent’s conduct fell short were provided in the email of Ms B dated 28 May 2019. The Committee could not see how the referral of this allegation of UPC was outside the powers conferred by the Act or in breach of the Rules.
- In respect of the particular raised by the Registrar this appeared to the Committee to have been referred to the IP in accordance with the Rules, but as it forms no part of the case before the PCC it is not necessary to address it further in this decision.
- The IP made a determination that the Respondent had a case to answer on the particulars that were referred to it. In addition, when considering the evidence, it raised two further particulars that were contained in the email of Mr A of the 19 May 2019 which related to the Respondent allegedly receiving money for introducing business to his clients.
- Mr Salisbury submits that the IP has no power to raise these additional particulars. In the Respondent’s defence of the 9 May 2020 he sets out his argument at paragraphs
4.10 and 4.11. In essence, it is that these matters were not part of the case referred to the IP.
- The Committee considers that it is clear that the allegation is that the Respondent is guilty of UPC. This is clearly set out at paragraph 1 of the report of ARB’s Solicitor to the PCC. This is consistent with Section 14(1) of the Act. That was the allegation referred to the IP and it was upon that allegation that it made a determination that there was a case to answer. That is the allegation.
- In considering whether there was a case to answer the IP investigated the case as a whole and the particulars that it found proved could give rise to a finding of UPC. A finding of UPC can be made on the basis of more than one set of circumstances. In making a decision on whether there is a case to answer ARB has set out guidance for the IP to consider. It states as follows;“The Investigation Panel will consider the evidence in support of each individual particular of the allegation and the case as a whole including both its strengths and its weaknesses.When coming to its view on whether there is a case to answer the Panel is not restricted to the allegations as drafted by the ARB. It may amend allegations or raise new ones where it considers it appropriate and necessary to do so upon consideration of the evidence before it. Any new particulars will be sent to the architect for response before a case to answer decision is reached.”
- The evidence before this Committee is that a preliminary decision of the IP was sent to the Respondent on 5 August 2019 and he responded on the 9 August. There is no evidence before the Committee that any new particulars were not raised with the Respondent in that preliminary decision. Further, there is no evidence that he was not able to comment before a decision was reached that those particulars if proved could amount to UPC.
- Mr Salisbury further submitted that the IP acted in breach of its own rules by considering evidence. He refers to Rule 4(e) which states as follows;“Each Investigations Panel will meet in private and not receive oral representations or evidence unless exceptionally it is necessary in the interests of justice to do so.”
- It was clear to the Committee that the ordinary meaning of those words is that the IP would not normally hear oral representations or hear oral evidence. It would frustrate the purpose of the IP and the Act if it were not able to consider any evidence in the case when reaching a decision on whether there is a case to answer. It would be unable to reach a decision on whether there is a case to answer without considering the case and the strengths and weakness of the evidence relating to it.
- Mr Salisbury submitted that there has been no report of a finding of a case to answer by the IP to the PCC as required by s14(2) of the Act. The Committee has not seen the full decision of the IP as it is not desirable to do so. Nevertheless, an extract is contained in the skeleton argument of the ARB which states as follows;“The Panel has considered all of the evidence and whether the issues complained of are sufficiently serious that they could, individually or cumulatively, amount to a finding of unacceptable professional conduct and/or serious professional incompetence.”The implication from that extract is that the finding was made by the IP that there was a case to answer. The report of ARB’s Solicitor to the PCC is further evidence of communication of that finding to the PCC. The Committee does not consider that there can be any unfairness to the Respondent by the absence of an explicit sentence to the PCC that a finding of a case to answer has been made (if indeed one is even required) such to prevent consideration of the allegation against him.
- The Committee has exercised care and caution in reaching its decision and has carefully considered the overall fairness of the proceedings. The Committee was satisfied that the Respondent has been given adequate notice of all the particulars in accordance with the Rules. The Committee was not able to identify any prejudice in the submissions made by Mr Salisbury to the Respondent’s Article 6 rights to a fair hearing. The Committee considers that ARB has acted perfectly properly and in accordance with its own Rules and guidance.
- The Committee could not accept Mr Salisbury’s suggestion of the interpretation of the Act which would run counter to the purpose of the Act and frustrate proper regulation of the profession in the public interest. The Committee did not accept that ARB could not investigate complaints that were “solicited”. In the criminal sphere the Police approach potential victims of crime if a line of enquiry reveals them. Regulators often receive information from sources other than complainants such as the police or other agencies and it cannot be the case that the Act prevents such matters being investigated.
- Similarly the Committee did not consider that during the course of an investigation the particulars were not capable of addition or amendment. It considered that it was in the interests of both the Architect and the public that complaints and concerns were properly investigated and only those matters that would support a finding of UPC were referred for consideration to the PCC.
- The Committee looked very carefully at the submissions made and in particular considered whether the conduct of ARB and the process that had been followed in the Respondent’s case was such so as to amount to an abuse of process. It had regard to the case of R V Maxwell  1 WLR 1837 and in particular paragraph 13 in which Lord Dyson said,“It is well established that the court has the power to stay proceedings in two categories, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial it will stay the proceedings without law. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here, a stay will be granted where the court concludes that in all the circumstances a trial will offend the court’s sense of justice and propriety (per Lord Lowry in R V Horseferry Road Magistrates Court ex-parte Bennet  1 AC 42,74G) or will undermine public confidence in the criminal justice system and bring it into disrepute.”
- The Committee also had regard to the case of Council for the Regulation of Health Care Professionals v General Medical Council and Salujua  EWHC 2784 (Admin). That case set out that it is exceptional to impose a stay and that in the case of entrapment by a third party the relevant panel must consider the case as a whole. Mr Salisbury submitted that ARB had engaged in gross misconduct as an agent of the state in soliciting the complaint.
- For all these reasons the Committee did not accept the submissions of Mr Salisbury that ARB had engaged in gross misconduct or that its actions were such that to continue with the case against the Respondent would offend the Committee’s sense of justice and propriety. It could identify no prejudice to the Respondent that would mean he could not have a fair hearing. He has been notified from an early stage of the allegation and the facts relied on in support. Furthermore he will have an opportunity to test the evidence and cross examine witnesses.
- To accept the submissions of Mr Salisbury would run counter to the objectives of the Act and damage confidence in the profession. The Committee does not accept that ARB has acted outside its statutory powers but even in the event that it has, it can identify no bad faith or prejudice to the Respondent that would prevent this Committee undertaking a fair consideration of the allegation.
- The Committee considered that there was a significant public interest in this matter being determined. In all the circumstances, the Committee considered that it was appropriate for the hearing to proceed.Application to exclude evidence of Carol Norton
- At the conclusion of submissions of no case to answer, Mr Salisbury made an application to exclude the evidence of Carol Norton (the “Inquirer”) on the basis that no express written or oral permission had been given by the Chair to admit it pursuant to Rule 13 of the PCC Rules. Mr Salisbury submitted that the provision of the rule was clear that the evidence shall not be admitted unless the Chair has given permission.
- Ms Sheridan, on behalf of the ARB, stated that the evidence was submitted to the PCC prior to the start of the hearing and permission was implied on the basis that the Committee had gone on to hear the evidence. She submitted that if it was not pertinent or relevant then the Committee could have excluded it.
- The Inquirer’s first report was prepared on 3 February 2020 and it was served on the Respondent in April 2020. On 2 June 2020 Mr Housego, who had initially been appointed as Legally Qualified Chair, dealt with preliminary applications for an adjournment of the substantive hearing, objections to the virtual nature of the proceedings and a jurisdictional challenge. Within that decision, Mr Housego directed, of his own volition, pursuant to Rule 11 and 12 a virtual case management meeting. This did not take place for a variety of reasons and Mr Housego was not available to deal with the case as the matter continued. In August 2020 the current Chair indicated that a case management meeting was desirable to deal with matters of jurisdiction and other issues raised by the Respondent prior to the hearing commencing in October 2020. This was re-stated in a decision of 17 September 2020 to enable the current Chair to give directions for the just disposal of the case.
- There was no case management meeting prior to the hearing commencing in October 2020 and in effect the hearing in October 2020 dealt with all preliminary matters including the jurisdictional challenge, the procedure followed by the ARB in bringing the charge and the lawfulness of the proceedings and abuse of process.
- The Committee handed down its decision in relation to those matters on 8 October 2020. In addition, during the course of the hearing, it was agreed that the unredacted statement of Mr A and the unredacted third addendum of the Inquirer should be adduced before the Committee.
- On 8 January 2020 there was a case management meeting to deal with the issues of timetabling the substantive hearing. The Respondent obtained permission to amend his defence and to rely on additional documents.
- At no stage during these various hearings and meetings has the Respondent, or Mr Salisbury on his behalf, raised any issue with regard to permission for ARB to rely on the evidence of the Inquirer.
- During the hearing in February 2021, Mr Salisbury cross-examined the Inquirer on all of her reports and conclusions and at no stage has he raised the matter that the evidence should not be admitted as permission had not been formally given by the Chair, despite having several opportunities to have done so.
- It appears to the Committee that this is a technical matter that has been overlooked in the context of the significant objections, challenges and applications made during the course of these proceedings.
- Had ARB sought permission at the outset of the hearing in February 2021, or indeed at any point up until the close of its case to correct this technical matter it is beyond doubt that such permission would have been given. It is clear to the Committee that the evidence of the Inquirer is relevant, of assistance to the Committee in dealing with the charges and has been properly disclosed to the Respondent. The Respondent has had an opportunity to test that evidence in cross-examination and to challenge the conclusions expressed in the reports.
- The Committee carefully considered Rule 13 and its purpose. It is clear to the Committee that the rule is to be considered as part of the case management process and is designed to prevent unfairness if one party were to produce expert evidence that had not been shared or an opportunity had not been given for proper challenge.
- The Committee could identify no unfairness to the Respondent in these circumstances and there was no good reason for the evidence to be excluded simply on the basis that permission had not been given orally or in writing. No objection to the inclusion of the Inquirer’s evidence on this basis has ever been raised until now. If it had been raised, it would have been corrected and permission would have been granted. This is not a case where had permission been sought it could reasonably have been refused. It would be extremely unfair for the ARB now to be in a situation where, having closed its case it cannot rely on the evidence of the Inquirer.
- The Committee therefore determines to give permission to the ARB to adduce the expert evidence of the Inquirer.No case to answer
- At the conclusion of ARB’s case, Mr Salisbury submitted that there was no case to answer. Mr Salisbury made his submissions on the basis of five limbs. In summary, he submitted that the particulars do not fall within the description of UPC and are in fact matters of competence which should have been charged as Serious Professional Incompetence (“SPI”); the particulars are unsupported by evidence or evidence that is tenuous and unreliable; that certain of the particulars are not so serious as to amount to UPC; and that certain parts of the evidence cannot be relied upon in law.
- Mr Salisbury produced written submissions in support of the application which consisted of 30 pages and detailed the grounds relied upon.
- In response, Ms Sheridan referred the Committee to the test as set out in the criminal case of R v Galbraith  1 WLR 1039. Ms Sheridan submitted that the proper approach to take was to establish whether the ARB case, taken at its highest was such that there was a possibility that the Committee could find the facts proved and that they amounted to UPC. Ms Sheridan submitted that where the matter required assessment of the credibility of a witness or resolution of a disputed fact, as in this case, the Committee should allow the case to go forward. Ms Sheridan also produced 8 pages of detailed written submissions to assist Mr Salisbury and the Committee which fully set out all of her arguments.
- Following Ms Sheridan’s submissions Mr Salisbury requested a right of reply. He stated that he had been taken by surprise in relation to the law cited by Ms Sheridan and wished to have an opportunity to consider the submissions and to make further submissions. The hearing was adjourned to allow Mr Salisbury this opportunity.
- Mr Salisbury made further written submissions consisting of 27 pages that set out in summary that the cases cited by Ms Sheridan did not assist the Committee and should be given little weight, and that her submissions essentially subverted the Galbraith test to a lower test of a “realistic prospect”.
- The Committee has accepted the legal advice given by the Legally Qualified Chair who reminded it of the test and the approach to be adopted as set out in the case of R v Galbraith;i. “(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
ii. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury…. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”
- The Chair set out the approach to be taken by the Committee was to assess all of the evidence that had been presented and to decide whether there was sufficient evidence to provide a realistic prospect of a finding of fact and whether those facts, if proved could amount to UPC.
- The Chair reminded the Committee that what amounts to UPC is a matter for the Committee exercising its professional judgement. In deciding whether the facts found proved amount to UPC the Committee was reminded to have regard to Spencer v General Osteopathic Council  EWHC 3147 (Admin). For a finding of unacceptable professional conduct 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. Any failing should be serious. The Committee was reminded that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.
- Mr Salisbury commented that there must nevertheless be credible evidence to support such conclusions which in this case there was not.
Decision on Case to Answer
- The Committee considers that there is a case to answer on all particulars and UPC. The Committee has considered the submission of the parties and adopted the approach as set out in Galbraith.
- In making its decision, the Committee considered the submission made by Mr Salisbury that there had been no evidence that the Respondent’s conduct was premeditated or that he had any “mal-intent” and therefore it could not be described as UPC. The Committee had regard to the case of Vraniki v ARB  EWHC 506 (Admin), the principles of Meadows v GMC as reaffirmed in the case of Remedy UK v GMC, and Calheem v GMC. The Committee recognises that a higher degree of culpability than mere negligence or carelessness is required for Unacceptable Professional Conduct to be found proved. The Committee has therefore borne this in mind when considering whether the Respondent’s conduct could properly be characterised as UPC.
- However, the Committee did not accept the submission that simply because the Respondent had asserted that he had no “mal-intent” and ARB had not produced any evidence of his state of mind, that this was sufficient to support that there is no case to answer. If this were to be the position, then no case against an Architect could proceed in circumstances where the Architect simply asserted in response that he did not intend to act in the way alleged or had given no thought to the conduct. The Committee considered that it is necessary in such circumstances for the Architect’s actions and intentions to be tested and for the case to proceed.
- Mr Salisbury submitted that in some areas the Respondent’s conduct could more properly be described as SPI. The Committee had regard to the cases above and noted that the same conduct could be characterised or charged as SPI or UPC. The Committee noted that the Respondent is not charged with SPI. Therefore, it considered the correct approach would be to decide whether each factual particular, if found proved, could amount to UPC as charged.
- With regard to particular 1 the Committee considered that this was based not only on the evidence of Mr A but on the emails sent by the Respondent to Ms B at the commencement of the project.
- Mr A’s evidence was that there had never been any formal terms and conditions of business provided to him or Ms B and they had never been asked to sign any terms of appointment. Mr A was cross-examined extensively about the suggestion that he preferred to engage people outside of formal arrangements. Mr A gave evidence that he always obtained a quote and an agreement for the work to be carried out and was not averse to written contracts.
- The Committee was referred to an email which never reached Ms B, which attached RIBA standard terms of appointment which were not tailored to Mr A and Ms B or their project. It was submitted that this was purely an oversight and a typing error in Ms B’s email address. The Respondent always intended to provide only these terms.
- The Committee noted that there was evidence that Mr A and Ms B were not provided with any terms of engagement as required by Standard 4.4 of the Code. The Committee considered that Mr A’s evidence was supported by the documentary evidence. The Respondent has also admitted the factual element of this charge and accordingly the Committee determined there is a case to answer on this factual particular.
- The RIBA standard terms of engagement were not compliant with Standard 4.4 of the Code as they do not set out insurance arrangements, price and scope of the works, a complaints procedure and all the matters required by Standard 4.4 of the Code.
- The Committee considered that this could amount to UPC as without adequate terms and conditions of business Mr A and Ms B were unaware of the limit of the Respondent’s indemnity insurance; they were unaware of his complaints process;
- and that he was registered with ARB. Mr A and Ms B were not provided with the information required by the Code in writing about the contracting parties, scope of works and responsibilities of the parties.
- If found proved, the Committee considers that this could be described as a serious falling short of the standards required as it was a failure to keep the Complainants informed about material information relating to their project and could amount to UPC. The Respondent’s evidence was that this was an error akin to an administrative slip but the Committee noted that he had not yet given evidence about the circumstances of the email. There was no evidence that the Respondent sought to chase up any written terms with the Complainants. Similarly, there was no evidence that the Respondent routinely sent terms of business which would support a conclusion that this was a one-off administrative error. The Committee therefore decided that the facts could be considered to be a serious falling short and were capable of amounting to UPC.
- Looking at allegation 2 (a) the Committee considered that this particular was based on the evidence of Mr A, the drawings and documents provided and the evidence of the Inquirer.
- Mr A gave evidence that neither he nor Ms B ever approved the design they ultimately ended up with. Mr A stated that he did not approve the number of columns supporting the cinema box and was under the impression that there would be four columns against the wall. Mr A was cross-examined on emails and drawings that he saw at the time and he confirmed that the design was never properly explained to him or Ms B and it was never approved. Mr A gave evidence about what he and his wife discussed. The Committee reminded itself that Ms B has not given evidence and so approached this aspect with caution. The Committee looked at the other surrounding evidence and noted that there was no evidence of any approved drawings or evidence in emails that Mr A and Ms B approved the design. There was evidence of a note of a site meeting where designs were discussed but Mr A gave evidence that he was not present at that meeting and was elsewhere at the time. This evidence was consistent with his statement, the evidence he gave during the High Court proceedings and the evidence given by Ms B during the High Court proceedings. The Committee did not consider that it was inherently vague or unreliable and it was consistent with other evidence.
- Moreover this evidence was supported by the Inquirer who gave evidence that she would have expected to see documentary evidence of a client’s approval of the design either in the form of minutes of meetings, emails or other confirmation.
- The Committee therefore considered that there was sufficient evidence that a reasonable Professional Conduct Committee could find this factual particular proved on the evidence submitted.
- The Committee went on to consider whether this failure to produce an adequate design in line with the Complainant’s requirements or brief could be considered to be a serious falling short of the standards required which is so serious as to amount to UPC.
- The Committee considered that a failure to ensure that the Respondent’s design reflected the requirements and brief of the Complainants, if found proved, could be described as a serious falling short of the standards required and could amount to UPC. The Committee considered that it was a matter of common sense that a failure to ensure that the Complainant is aware of, and happy with, what is designed and proposed is a fundamental aspect of the Architect’s role.
- The Committee therefore finds that there is a case to answer in respect of allegation 2a.
- So far as allegation 2 b is concerned, the Committee notes that this is factually admitted. The Committee considered this was supported by the Building Regulations document which set out the relevant provisions that would apply to the cinema box.
- It is submitted by Mr Salisbury that it is not a serious matter which is capable of amounting to UPC or alternatively, it is a competence issue which should have been charged as SPI. He submitted the lack of a means of escape was easily resolved by the creation of a window in the gable wall which was a simple measure and would have been well within the contingency budget for this project.
- The Committee heard the evidence of the Inquirer who did not agree that the creation of a window was a simple resolution. Her evidence was that this would be impacted by a raised flower bed below. The Inquirer gave her opinion that it was a matter that should have been considered and addressed in the original design and the Complainants ought to have been made aware of the problem.
- The Committee considered that there was evidence that the Building Regulations information had been supplied to the Respondent and there was evidence that this had not been addressed in the design. The Committee considered that there was sufficient evidence to conclude that the Respondent was aware of the Building Regulations requirements but had failed to address them in his design. The Committee considered that this could be seen to go beyond a negligent oversight or a failure to have regard to the relevant provisions as there was evidence they had been specifically brought to his attention. The Committee considered that this could be characterised as a serious falling short of the standards required as it left Mr A and Ms B with a building that was potentially unsafe and unusable and would not be compliant with Building Regulations which could have significant consequences for them.
- The Committee next considered Particular 3. The Committee considered that this was based partially on the evidence of Mr A who gave evidence that he did not get regular updates of information from the Respondent in terms of site visit notes or minutes and that the Respondent’s system was described in the High Court proceedings as a “tumble dryer of information”. The Inquirer gave evidence that she would have expected to see site visit notes minuted and circulated and other important information including drawing schedules to be regularly updated. The Inquirer gave evidence that it was acceptable for this information to be electronic and could be found in emails and zip files. The Inquirer went on to say that she had not seen this evidence as part of her enquiries. The Inquirer gave evidence that different drawings had been given the same drawing number which was likely to cause confusion. The Committee also considered the documents and drawings disclosed by the Respondent and took into account that he had destroyed his own records following the High Court hearing.
- The Committee noted that the Respondent had not yet given evidence about the systems and procedures employed at his practice during this project. It had also not seen any documentary evidence of such systems, as suggested by the Inquirer, that would be expected in a professionally run practice for example, diaries, drawing schedules, site visit minutes or other evidence that projects were professionally managed and regularly monitored or reviewed.
- In these circumstances, the Committee considered that there was sufficient evidence that could support a finding in relation to this factual particular.
- In considering whether, if found proved, this would amount to a serious falling short of the standards required the Committee considered that it would. Clients have an expectation that an Architect will run their practice professionally and ensure that there are systems and procedures in place to ensure all projects are regularly monitored and reviewed. It appears to the Committee to be a matter of common sense that clients would be horrified to learn that an architect had no proper system in place to manage projects or that drawings and other important paperwork was not properly organised, stored and reviewed.
- In relation to Particular 4 the Committee noted that there was a factual dispute about the contract price and what was to be included within the contract. Mr A gave evidence of the amount spent on the project and the amount spent on subsequent litigation and rectification works. Mr A gave evidence that these costs were in excess of the £250,000 that he was able to recover from the Respondent’s insurers following his successful claim in the High Court. The Committee was directed to Standard 8 of the 2010 Standards which states
“You are expected to have adequate and appropriate professional indemnity insurance cover for you, your practice and your employees. You should ensure that your insurance remains adequate to meet a claim.”
The Committee was also directed to the ARB’s PII guidance note dated 2014 regarding insurance provision which states,
“The Board recommends that the minimum limit of indemnity provided by PII should be £250,000 for each and every claim….It is important to note that Architects should maintain sufficient cover to enable them to meet claims arising from professional practice and bear in mind that claims may arise from personal injury as well as loss, damage, delay and additional costs.”
The evidence of the Inquirer, although not an insurance expert, was that it was a matter of common sense that you would be expected to have sufficient insurance to meet a claim from a client and to consult your insurance broker if there was any doubt.
- The Committee considered that there was sufficient reliable evidence that could support a finding of this particular that the Respondent did not have adequate professional indemnity insurance.
- The Committee considered that if such a finding were made it could be characterised as a serious falling short and so could amount to UPC. Mr A gave evidence that they were left significantly out of pocket as they were unable to recover the full amount of their claim and were required to fund costly remedial works. The public would expect Architects to have sufficient professional insurance to cover a claim.
- The Committee next went on to consider Particular 5. The Committee notes that this allegation is based on two emails sent by the Respondent to two different suppliers asking for a “finder’s fee” and “50 for me”. Mr A gave evidence that he did not know about these emails until they were disclosed in the High Court proceedings.
- The Respondent’s evidence is that the “finder’s fee” was an attempt to negotiate a discount that would have been passed on to the Complainants and the second request for “50” was a joke between friends and there was never any money that changed hands. The Committee is mindful that the Respondent has not given any evidence on this matter and so it is untested.
- The Committee considers that there is evidence on the face of the emails, and the evidence given by Mr A that he was not aware of these approaches, that could support a finding that the Respondent placed himself in a position of a conflict of interest by attempting to solicit money from potential suppliers. The Inquirer’s evidence was that this should not be done without informing the Complainant.
- There is evidence from Mr A that the Respondent did not tell the Complainants about these approaches which could support a conclusion that the Respondent had acted dishonestly or without integrity. There is no documentary evidence before the Committee that the Respondent did make the Complainants aware of these approaches and the Respondent has not yet given oral evidence. The Committee therefore considers that there is evidence that the Respondent may have concealed these approaches and therefore could enable the Committee to find this factual particular proved.
- If the Committee found as a fact that the Respondent had placed himself in a position where he was seeking money from potential suppliers for his own benefit without telling the Complainants then it follows that it would be open to the Committee to conclude that such conduct was dishonest or lacking in integrity.
- The Committee considered that it is clear that if the Committee were to find that the Respondent had placed himself in a conflict of interest situation by soliciting money for his own benefit, members of the public would consider that was deplorable and would be shocked. It therefore follows, in the view of the Committee that these are serious matters that if found proved particular 5 and the associated particular 6 could amount to UPC.
- In all the circumstances and for the reasons set out above, the Committee finds that there is a case to answer in relation to all of the factual particulars and UPC.
Decision on facts and UPC
- In reaching its decisions, the Committee has carefully considered all the submissions of the parties, together with the documentary evidence presented to it. The Committee heard live evidence from the Complainant Mr A, Ms Norton as expert for ARB, and the Respondent.
- The submissions on behalf of ARB are set out in two documents dated 9 April 2021 and 6 May 2021, a total of 29 pages. It is not necessary to repeat the arguments in this determination save to say that ARB submits that the facts are capable of proof in relation to all particulars, and individually and collectively each particular amounts to UPC.
- The submissions on behalf of the Respondent are set out in two documents dated 19 April 2021 and 30 April 2021, they are extensive and consist of 100 and 112 pages respectively. In addition, Mr Salisbury on behalf of the Respondent repeats his earlier submissions made in respect of the no case to answer submission. In summary, he submits that the facts that are disputed are not capable of being established on the evidence and even if they were, together with the admitted facts, the Respondent’s conduct does not amount to UPC. Mr Salisbury raises particular objection to the evidence of the Inquirer and submits it should be excluded in its entirety as a matter of law. He further submits that the Committee should not make a finding of UPC in circumstances where, if proved, the conduct is SPI.
- Approach of the Committee
- The Committee accepted the advice of the Legally Qualified Chair and had regard to the matters set out in her advice when approaching its determination on facts and UPC. In particular, the Committee was mindful that the burden of proof is on ARB. The Committee noted that a significant amount of legal argument and disputes of fact have been raised during the course of these proceedings. The documentary evidence in the case is considerable. The Committee has considered everything that it has seen and heard. This written determination will focus upon giving reasons for the conclusions the Committee has reached rather than commenting on every aspect of the evidence.
Evidence of the Inquirer
- As a preliminary matter, the Committee re-considered Mr Salisbury’s objection to the evidence of the Inquirer. Mr Salisbury now amplifies the submission made at paragraph 49 of his no case to answer submissions which was that the Inquirer’s evidence was biased, and no responsible Committee could do anything except throw out that evidence without consideration of it. Mr Salisbury in his closing submissions sets out responses given to his cross-examination by the Inquirer which, in his submission, demonstrates that she was biased and partisan in favour of ARB. He points to her instructions and considers that these render her an inquirer and therefore not an expert. Mr Salisbury submits that the Inquirer gave evidence that was clearly outside her expertise and that she did not exercise her independent judgement. He therefore submits that she is not an expert within the meaning of Part 35 of the Civil Procedure Rules (“CPR”) and her evidence should be excluded or, in the alternative, given no weight as it is unjust to the Respondent.
- The Committee has previously determined that the evidence of the Inquirer should be admitted. Paragraphs 41 to 53 of this determination set out the reasoning of the Committee on the basis of the objection that ARB had not sought the appropriate permission. Mr Salisbury’s now submits, in essence, that the Inquirer’s evidence was such that she is effectively disqualified as an expert and no regard should be had to any of her evidence as a matter of law. In his submission it would be inadmissible in a Court and by operation of Rule 15a of the PCC Rules is inadmissible in these proceedings.
- ARB submits that the Inquirer was well aware of her responsibilities as an expert and refers to the signed declaration dated 21 January 2020 which confirms her understanding of her requirements both as an expert and as required by Part 35 of the CPR. ARB submits that the evidence is admissible as a matter of law and the weight to be attached to it is a matter for the PCC.The Committee does not consider that the Inquirer’s evidence was so biased, partisan or outside the remit of her experience that it should be excluded in its entirety. The Committee noted that on occasions the Inquirer had given evidence that was helpful to the Respondent. For example, in response to a question from the Chair about the alternative factual scenario that the Respondent had meetings and discussed drawings with Ms B, the Inquirer agreed that there would be no criticism of the Respondent. The Committee did not consider that the evidence of the Inquirer was biased or partisan and where it went beyond the realm of her expertise the Inquirer accepted this was the case. Given the Inquirer’s signed declaration in January 2020 confirming her understanding of her duties and responsibilities the Committee did not consider that it was material that the term Inquirer rather than expert was used.
- Taking into account the second part of Rule 15a and considering fairness to the Respondent, the Committee noted that the Inquirer had been extensively cross- examined by Mr Salisbury. The reports and conclusions of the Inquirer had been made available to the Respondent together with information about the documents that had been provided to the Inquirer. In addition, the Inquirer had made some observations that were helpful to the Respondent and supported, in part, his account of events. In these circumstances the Committee could identify no unfairness to the Respondent for the evidence to be admitted.
- The Committee also considered its regulatory purpose and balanced this with the need to act proportionately and fairly. The Committee reminded itself that it was required to consider the evidence as a whole in relation to each factual particular. The Committee considered that there was no justification for excluding the whole of the evidence of the Inquirer which had been properly tested in cross-examination. It did not consider that the Inquirer’s evidence was so biased or partisan as submitted by Mr Salisbury that its prejudicial impact outweighed any probative value. As such, the Committee did not consider that it was inherently unjust or unfair to admit it.
- The Committee considered that the issues raised by Mr Salisbury about the Inquirer’s evidence, were more properly characterised as judgements to be applied by the Committee when deciding what weight to attach to the evidence of the Inquirer. The Committee did not consider that the criticisms submitted by Mr Salisbury were sufficiently made out to justify excluding the evidence as a whole. The degree to which the evidence of the Inquirer was ultimately accepted or relied upon by the Committee is dealt with against each particular.Particular 1 – The Respondent did not provide adequate terms of engagement contrary to Standard 4.4 of the Architect’s Code. Admitted and Found Proved
- The Respondent has admitted that as a matter of fact he did not provide these terms. However, his admission is equivocal and based on a factual scenario that is not accepted by ARB. In these circumstances the Committee considered it was necessary to make a finding on the disputed facts.
- The Respondent explained that he sent an email dated 9 May 2014 to Ms B attaching the RIBA Standard Agreement 2010. The Respondent has explained that a typing error in the spelling of Ms B’s email address meant that these terms never reached her and so they were never provided. The Respondent exhibited the bounce-back email in the High Court proceedings together with evidence that it was never opened and so he overlooked it. The Respondent stated that he later discussed the matter of his terms and asked for them to be signed but he says Ms B showed no interest. The Respondent stated that Ms B and Mr A were averse to written contracts and did not have agreements in place with any contractors who worked on their home. The Respondent stated that Ms B preferred to work on a “trust” basis and this was important to her, rather than relying on written agreements. In his defence documents the Respondent stated that he was told expressly by the Complainants that they did not wish to sign any agreement with him.
- The Respondent states that he intended to be bound by the terms sent to Ms B and that the attachment sent to his email dated 9 May was adequate to comply with Standard 4.4. There is some doubt about what was precisely attached to the email, whether it was the whole of the RIBA standard agreement pack or just the standard conditions for appointment of an architect. Taken together with the exchange of emails sent throughout the project the Respondent states that this was sufficient to explain to the Complainants the information required by Standard 4.4.
- Mr A’s evidence was that he and Ms B were not averse to written contracts. He stated that they had never been asked at any point to sign any written agreement with the Respondent and if he had been asked he would have done so. Mr A stated that he usually proceeded on the basis of a written estimate or quote from contractors.
- The Committee had regard to the Respondent’s handwritten note of his first meeting with Ms B at the property on or around 7 May 2014. There is reference to work under “SFA – Architects time charge.” The note goes on “Suggest trades for client selection based on previous good work rather than working under contract.” The logical interpretation of that note is that the Respondent’s appointment was to be under a Standard Fee Agreement (“SFA”) but this did not apply to the trades.
- On 9 May 2014 the Respondent set out his initial thoughts about the project to Ms B in an email. On 9 May the project was still very much in discussion phase and the cinema room was proposed to be underground in the swimming pool void. The Committee considered the email set out some pertinent information as follows:
I. “I will develop scheme options and a brief…. This will be presented as a series of drawings which I can present to you.”
II. “In terms of my role I would like to design and project manage through to completion. This will include all Building Control matters, site visits etc…How does this sound? I can firm up a programme and fee if you are happy on this basis. Because the works are stage based, we have hold points where we can review my input accordingly and you can decide what suits you best.”
- Around two hours after the email was sent Ms B replied at 1.23 pm as follows, “That all sounds great. My husband is due back tonight so I would like to show him your email and get back to you on Monday if that is ok.” The Respondent then sent the following email attaching the terms and conditions around ten minutes later at 1.34pm “Also.. I forgot to send a moment ago, please find attached as discussed. Can you sign and return?” This email was cc’d to the Respondent’s Hotmail account and there was also an error in Ms B’s email address in that an extra “n” had been typed on to the end.
- The Respondent then sent a further email, to the correct email address at 2.50 pm which states, “Thanks [Ms B], No problem at all. I forgot to mention I also have a quantity surveyor who can help analyse the tender returns….” This appears to be a reply to the 1.23pm email sent by Ms B and it makes no mention of the contract sent an hour before. On 13 May 2014 Ms B replied to the Respondent “We would like to go ahead and I am really pleased that you will be able to design and project manage the whole thing. Let me know what happens next.”
- On 19 May 2014 the Respondent emailed Olive, the AV equipment specialist and stated that he was intending to get together with his client “…to develop a brief regarding the design and construction of a 12 person cinema.” The Committee noted from the email sent by the Respondent on 20 May that there was a meeting or some sort of discussion with Ms B on the 19 May as he stated, “Thanks for your time yesterday.”
- The Committee noted that at this stage the project involved the construction of the cinema room in the basement. It was clear to the Committee that any written agreement relating to professional services entered into at that stage would reflect that project. The letter sent on 9 May 2014 could not have provided adequate information about the scope of works to what became the cinema box on legs. It could not have provided adequate information about the cost or scope of those works as it was an entirely different project that was contemplated at that stage.
- The Committee did not accept that Mr A and Ms B were averse to written contracts. This seemed to the Committee to be at odds with the Respondent’s own contemporaneous note that there was a proposal and agreement to use the SFA at the first meeting. The email sending the agreement to Ms B uses the phrase “as discussed” which would suggest that there was a discussion and agreement about the Respondent’s own appointment. There is no documentary evidence before the Committee that the Respondent sought to chase up the terms or enquire whether they had ever been received. There is no note of any refusal to sign the agreement or indeed a letter or email to Ms B confirming the refusal and explaining any consequences for the Complainants as well as outlining the implications for the Respondent as a professional.
- The Committee considers that it is more likely that the Respondent, having sent the Standard Conditions of Appointment in his email, gave no further thought to his terms of appointment and did not ensure they were adequate. When the scope and nature of the project changed significantly the Respondent did not send a further agreement to cover these matters before undertaking any professional work.
- In addition, in April 2015 the Respondent then changed his invoicing procedure and set out in an email that his fees going forward would be included within Ridlands’ costs. Ridlands were introduced to the project by the Respondent as specialist steel and glass contractors. The implications of this arrangement were not explained to the Complainants and whether it would have any impact on the Respondent’s appointment given he was effectively working for Ridlands and taking instructions from that company.
- The Committee does not accept that the Standard Conditions of Appointment are sufficient to comply with Standard 4 in any event. They do not set out the complaint handling procedures or the requisite information regarding insurance and scope of works as required by Standard 4.4. This was the document the Respondent said in his evidence he attached to the email and the terms he intended. The Respondent could not have included or even fully completed the other documents referred to in the RIBA pack given the information he had on 9 May 2014. On the balance of probabilities the Committee is satisfied that the Respondent did not provide adequate terms of engagement contrary to Standard 4 of the Code.
Particular 2 The Respondent did not produce an adequate design in line with: (a) The client’s requirements and/or brief; – Not Proved
- The Committee considered very carefully the contemporaneous documents, it had regard to the evidence of Mr A and the Respondent. It noted that Ms B had not given evidence to this Committee and in this regard there was only the hearsay evidence of Mr A. The Committee noted the conclusions of the Judge in the High Court proceedings but it took care to reach its own conclusions based on all of the evidence.
- At the outset of the project it was planned that the cinema room would be based within the pool void. That later changed, and some basement works under the kitchen were contemplated. It was accepted that Ms B did not want the kitchen to be disrupted during these works and so that plan was abandoned at the end of October 2014. In a meeting note dated 27 October 2014 the Respondent has recorded, “Not acceptable to disrupt kitchen use. Further options requested.” It appears that at this meeting the concept of the elevated glass box was discussed. In an email to Ms B dated 28 October 2014 the Respondent confirmed that he would meet with Mr R of Ridlands to develop the glass box theme. The Respondent sent Ms B some pictures and confirmed he would work on a 3D rendering. Ms B replied almost immediately to that email confirming she was excited and relieved about the new plan and that she loved the look of the boxes.
- On the 30 October the Respondent sent Ms B the 3D rendering which appears at page D120 of ARB’s bundle. This shows a translucent box supported on four round, slender columns with an open tread staircase from the swimming pool level. There is no evidence that Ms B responded to that email; nor is there any evidence that she made any comment in writing about this representation. The Committee has no documentary evidence about whether it was discussed with Mr A and what they liked or did not like about this representation.
- In a different email dated 30 October 2014 the Respondent makes reference to attending to see Ms B at 11.30 the following day. It seems likely, that at that meeting the outline ideas for the cinema box were discussed. On 4 November 2014 the Respondent sent an email to Mr R at Ridlands and enclosed a copy of the 3D sketch together with some outline plans. The proposed works were described as follows:“The intention is to create a glass box on legs to house a cinema seating 8 or so people (single skin glass walls supported by glass fins, glass underbelly and solid ceiling. Floor will sit in a steel tray supported by 4no steel pilotis. Access via a stair which I am setting out at the moment.”The meeting was planned for Thursday of that week.
- The Committee has seen a note dated 6 November 2014 which sets out the detail of the Respondent’s discussion with Mr R. The Respondent states that Mr A and Ms B were present. Mr A is clear that this meeting took place in a pub and he was definitely not there. It appears to the Committee from the note of this meeting that the plan as outlined above was the idea that was discussed. The sketch in the note of the meeting is similar to the 3D representation and the columns and steel tray are labelled. It appears to the Committee that whether Ms B and Mr A were present at this meeting is not relevant as the idea that was discussed was the one that had been shown to them. At this meeting there is a note that the glass would be hung from spider bolts. The note also records the arrangement that Ridlands would develop designs of the glass box and ultimately install it.
- On 21 November 2014 the Respondent sent an email to Building Control and copied in Ms B setting out the outline proposals for the works. That email records that the cinema room would be supported on 4 columns. A plan was attached to that email. On the 24 November 2014 The Respondent sent an email to Ms B as follows, “Had a review today on the cinema. I’m sticking with the box, looks much better. I will develop the scheme with the engineer, and we can get a final 3D over to you to give you a good understanding of what the proposal” (sic).
- To that end the Respondent instructed Mr S on the 28 November to produce a 3D perspective and enclosed the drawings he had done to date. On 30 November 2014 the Respondent sent the following email to Mr S “Don’t do any work on the CAD model I gave you. Client meeting yesterday has led to some significant changes. Will give you an update soon.”
- It is clear to the Committee that there was a meeting on the 29 November 2014 at which the plans were discussed. It is equally clear that Mr A was present at that meeting and he agreed in his evidence that he asked for the cinema to be made bigger. There is no note of this meeting. However, it is reasonable to conclude that the initial plans and concept were clearly not agreed and Mr A and Ms B asked for a re-working. The Respondent’s email to Mr R of Ridlands dated 1 December 2014 stated,“ So I met with the clients [Mr A and Ms B] on Saturday and presented the box option. Mr A was concerned the box was too small in its configuration, so I have redrawn the proposal…. The client is interested in removing the supporting columns altogether. I know it can be done but I assume it is dreadfully expensive. We could explore this.”
- The Committee was satisfied that the initial CAD drawing and box options were discussed with Mr A and Ms B at this meeting and they were not happy to go ahead as designed and asked for significant changes. It also seems reasonable to conclude that the Respondent explained that he would need to rework the design and it was not just a case of making the existing design bigger. It seems to the Committee that following this meeting Mr A and Ms B could not now have thought that they would be getting the design as set out in the CAD drawing as they had specifically rejected it.
- The Respondent sent amended drawings to Mr R and copied in Ms B on 1 December 2014. The Respondent also sent an email to Ms B on 2 December which stated, “Sn is going to work on the plans I have submitted to him. He seemed to think a 6 x 4 room would work. Let’s see, fingers crossed.” It was clear to the Committee from this email that the design phase was essentially back at the drawing board.
- There is an email dated 3 December 2014 to Ms B which states, “Further to our telephone conversation I attach plan B proposal. Could you discuss this with [Mr A] and let me know which option you would like to progress?” There is mention within the emails at this time that Mr A and Ms B were considering a separate structure outside the property to house the cinema. The Committee considered that it was clear from the emails that Mr A and Ms B were undecided about what they wanted and did not have a clear intent to progress the glass box proposal in the way that the Respondent had explained to them.
- The Committee considered that it was plain from the emails that Mr A and Ms B did not have a specific brief or requirement about how and where they wanted to house the cinema at that time. The Committee conclude that they did not give specific instructions to the Respondent to go ahead with the proposal as set out in the early drawings and CAD representation or confirm that this was what they were looking for.The Committee accepted the Respondent’s evidence on this point that Mr A and Ms B were unclear about what they wanted.
- It seems that matters were then in abeyance until January 2015. The Respondent sent an email dated 9 January 2015 to Mr R of Ridlands and Mr W of Olive AV stating, “I have been asked by the client to develop the design to construction regarding the cinema box on legs.” On 13 February 2015 the Respondent sent an email to Ms B, “I have submitted cinema plans to Ridlands to develop. I am sitting down with the structural engineer next week to develop proposals.” The Committee considers that these emails demonstrate that the Respondent was working on proposals to present to Ms B for a revised cinema box and layout.
- On 18 February 2015 the Respondent updated Ms B following his meeting with the structural engineer and stated, “We are producing drawings from which Ridlands can go into manufacture… Hope that is ok. Will give you a call shortly.” There was clearly a discussion between the Respondent and Ms B about columns and the positioning of those columns. The Respondent sent the 200 series drawings to Ms B on the 26 February 2015 and asked her to decide whether she wanted the columns hard up against the external wall or inbound. The email went on to record, “I have shown the stair at the gable end wall next to the cinema screen as we had discussed.”
- The Committee considers that these emails demonstrate there was ongoing discussion with Ms B and the Respondent about his design. The Respondent moved the staircase to incorporate the Complainant’s request and suggested alternate options regarding the positioning of the columns. There was ongoing work with the engineer and Ridlands and in March 2015 the Respondent sent an email to Mr R at Ridlands,
“I have just been in discussion with the client and he has requested that we put a “soft” programme and cost together based on the information we have as a matter of urgency. He has requested that he and I reconvene tomorrow morning where I need to present our findings. We will have to base this on [T’s] latest proposal showing 3 pairs of columns either side of the box and a trimmed opening for the stair.”The Committee noted that “[T]” is a reference to the engineer. It appears that Mr A had requested a meeting to discuss costings and a timescale as a matter of urgency.
- A meeting was arranged for 17 March 2015 at 1pm. The Respondent sent an email to both Mr A and Ms B “I attach draft programme regarding design and construction of the cinema room. The programme can be shortened by approximately 4 weeks if the stair is positioned outside the box. I will explain how this could work when we can meet.” There is a note prepared by the Respondent dated 19 March 2015 which is with Mr A although it isn’t clear whether Ms B was present. In that note is a sketch which shows the cranked steel columns. The sketch is tilted on the page and it was the Respondent’s evidence that it was drawn that way to demonstrate to Mr A (sat to the side of the Respondent) how the box would look.
- 141. The Committee considers that this is credible evidence and is in line with the contemporaneous emails. It is clear that the columns were an issue with the design. Prior to this meeting the proposal from the engineer was a design based on 3 pairs of columns. The Committee considers that it was the Respondent’s intention to explain this proposal at that meeting and the sketch is a representation of that. The note goes on “6 Columns ok but push as close as possible to x walls”. The Committee considered this recorded the agreement to 6 columns pushed as close to the external walls as possible.
- The Committee considered that this was likely to be an accurate record of what was agreed and discussed at that meeting. There was no evidence of a formal “sign-off” of drawing or designs. Similarly, there was no evidence that Mr A and Ms B ever set out in writing to the Respondent that they wanted 4 columns as a maximum or fully explained to him what their requirements were. There was no evidence before the Committee of an agreed brief in writing which fully captured the requirements of Ms B and Mr A. On the contrary, the evidence before the Committee in the form of emails during the design process demonstrated that Mr A and Ms B were not clear about what they were looking for. The brief appeared to be fluid and reactive to the designs that were put in front of Ms B and Mr A rather than a clear statement from them of what they wanted.
- The Committee considered that it was extremely unlikely that the Respondent did not discuss the number of columns or the positioning of them or explain to Mr A and/or Ms B the design. In an email dated 29 March 2015 Mr A sent to the Respondent about costs and he stated, “We need to get to a point where we can give permission to proceed with the Cinema but we can’t do that until we understand the costs.”
- The Committee considered that at that stage, Mr A appeared to be content with the design and the critical issue was the cost. There had been some input with regard to the staircase but no questions were raised about the overall look or design and no suggestion that further drawings or designs were needed to be seen before permission to proceed was given. Given the input of both Ms B and Mr A up to this point, the Committee considers that it is simply not credible that the Respondent would proceed to the construction phase with a design that the Complainants were not happy with and had not approved. The Committee considered it was possible that they had not fully understood every aspect of the design or how it might look but nevertheless they were involved and consulted on the design process and agreed the main features.
- Mr A says in his statement that they were not told at any point that there would be 6 columns. The Committee considers it would have been clear to them at the point of construction that there were 6 columns. At no stage in any of the voluminous emails setting out Mr A’s dissatisfaction with the works does he say that the 6 columns were never agreed or that they are unhappy with the look of the box and that it is not what they were expecting. There is no evidence before the Committee that this was raised with the Respondent as an issue. In the circumstances, the Committee considers that the more likely explanation is that Mr A and Ms B knew about the number and approximate location of the columns and had agreed to them at the meeting on 19 March 2015. Although the Committee considered that with all of the later developments it is unsurprising that Mr A could not recall this discussion.
- The Committee accepts the Respondent’s evidence that he took drawings to site and discussed them with Ms B. The Committee accepted that Ms B was the Respondent’s main point of contact and the majority of conversations about the design were with her. Mr A accepts he was initially only concerned with the technical aspects of the cinema room and he only became involved with the design at a much later date after construction had begun. Ms B did not give evidence to the Committee and therefore there was no evidence from her about specific meetings when Mr A wasn’t present. The Committee was not persuaded by the hearsay evidence given by Mr A that important aspects of the design were never discussed with them given the contemporaneous emails which demonstrated regular contact between the Respondent and Ms B. The Committee considered it was likely that the Respondent took drawings to site and they were discussed and explained to Ms B.
- The project was very nearly completed and so the Committee was not persuaded that Mr A and Ms B were re-assured by the Respondent that it “would be ok once it was finished.” At the very end of the project the issues appeared to be around the glass and how it lined up rather than the columns and the overall look of the box.
- As part of the remedial works process it was explored that the beams would be covered up instead of exposed to avoid the issue with the glass meeting the beams. The Respondent explained to Mr A in an email dated 2 March 2016, “The column casing is not my preference, I had originally wished for the steel to be exposed, I like the look of structural steel, leaving it exposed is more minimal.” Mr A did not disagree in his reply or state that the nature and number of columns was never approved or agreed and instead agreed to a trial pillar covering to see how it would look with the glass. This appeared to the Committee to be inconsistent with his evidence that the steels were ugly and never agreed and did not fit with the rest of the house.
- The Inquirer suggested in her report “I do not think the design reflected the client’s requirements or expectations. The finished product does not reflect the quality of finish and ambience of the rest of the house.” The Committee had no documentary evidence about the Complainants’ requirements given to the Respondent at the time but it appeared that they were content with the design as it developed as they did not raise any issues that it was not what they were expecting. The Committee noted that matters were raised later about the quality of the work undertaken by Ridlands and in particular the glass positioning but there is no evidence that Mr A and Ms B ever stated that the design did not reflect the ambience of the rest of the house at the time or that they asked the Respondent to design something that reflected a particular style. These expectations have been assumed and the Committee gives them no weight.
- The Committee noted that also in February 2016 Mr A said he was unhappy that the spider bolts could be seen. In his evidence Mr A stated that the use of spider bolts was never discussed or approved. The Respondent confirmed in his evidence and in emails sent at the time, that this was always part of the design intent and spider bolts were included within the costings. Glass samples were provided and choices were made by Mr A and Ms B. There is no evidence that Mr A and Ms B gave any specific instructions about their requirements or raised with the Respondent that they were not happy with how the glass was connected using these spider bolts. The Committee considers that if spider bolts had never been discussed or approved it is likely that Mr A or Ms B would have raised this at the time. The Committee accepts that they may not have fully appreciated how they would look in situ but it does not mean that they were not discussed or approved.
- It appeared to the Committee from the emails in March 2016 that Mr A’s priority was getting the glass installed such that it lined up correctly and when this could not be done to his satisfaction the project was effectively abandoned. The Committee did not get the sense from these emails that Mr A was so unhappy with the look of the project and how it fitted within his home that it could not be salvaged. This was the position Mr A ultimately took during the High Court proceedings and the Committee could understand his disenchantment and frustration with the project by that stage but it did not accept that it reflected his position at the time.
- From the above the Committee considered that the requirements of Mr A and Ms B were not expressly communicated to the Respondent. Where Mr A and Ms B did express views on the design, for example in relation to the staircase, the Respondent incorporated those requirements. The Committee considered that there was a fluid brief for this project with considerable “scope creep” as identified by the Respondent and it was difficult to tie down the Complainants’ requirements. The Committee considered that ARB had not demonstrated to the required standard that the Complainants’ requirements were communicated and not met.
- Overall the Committee was not satisfied that ARB had demonstrated to the required standard that the Respondent’s design was not in line with the Complainants’ requirements and/or brief.
Particular 2 The Respondent did not produce an adequate design in line with:
(b) Building Regulation requirements – Admitted and Found Proved.
- The Committee noted the Respondent’s admission to this factual particular but, as with his admission to Particular 1, it was made on a limited basis and so the Committee considers it is necessary to make factual findings.
- At an early stage in the design process, the Respondent contemplated the cinema box as a gallery such that for Building Regulations compliance, an alternative means of escape might not be required. The Council’s Building Inspector made that clear in email correspondence of November and December 2014 when he helpfully attached relevant Part B Regulations (Fire). However, that concept was abandoned soon afterwards when it became clear that a solid ‘dark’ box was required to make the cinema operable. From that time onwards, the Respondent’s intention was to have a ‘trap door’ over the staircase that could be lowered into position to prevent light penetration from below. This was to operate mechanically via an electric motor connected to the mains and fire alarm system. In addition, ‘a trap door within the trap door’ was designed to provide a fail-safe means of escape. This device was the subject of some discussions with Mr A, but was never resolved. The evidence of the Inquirer was that neither trap door was compliant with the Building Regulations Part B. There was a further Building Regulations issue relating to the lack of balustrading to guard the opening at the cinema level, but the Committee has seen no evidence of how that was to be resolved.
- In his evidence the Respondent denied that he was responsible for the design of the trapdoor which he says was contracted to a specialist. But there is documentary evidence that the Respondent was involved with and commenting on the design of the trapdoor. The Committee considers, and the Respondent accepts, that as the only Architect involved in this project, he had an overall responsibility to ensure that the proposed design was effective, and met the requirements of Building Regulations.
- The Respondent agrees that as a matter of fact the cinema box did not comply with the relevant Building Regulations. However, he states that the cinema box was not completed and so the issues of the balustrading and the egress window would have been addressed had the building proceeded to completion. It was the Respondent’s case that there was an oversight in the initial design for a secondary means of escape but this was a minor technical error that he had identified and would have corrected if he had been allowed to complete the project. Mr Salisbury on behalf of the Respondent submitted that this was akin to a “whoopsie” that was easily remedied by the construction of an egress window in the gable wall which would have cost a few hundred pounds.
- The Committee had regard to the Inquirer’s evidence which was that this was a “basic mistake” and that it was not straightforward to install an egress window in the gable end wall. The Inquirer stated that it would be usual to design the balustrading with the staircase.
- The Committee did not accept the Respondent’s evidence that he identified the need for an egress window. The Committee did not consider that this was consistent with any of the emails sent during this time. The Respondent’s focus was on the operation of the trapdoor as a means of escape and he made no mention of an egress window. This is particularly striking in light of the email sent by Mr A on 8 February 2016 requesting that the Respondent “come up with a failsafe way of exiting..” The Respondent responded that a break glass panel could be replaced with a timber trapdoor hatch within the main trapdoor. The Committee is not persuaded in the light of this correspondence that it is credible that the Respondent was always intending to install an egress widow at the gable end wall which would provide a compliant alternative means of escape.
- At this stage, the project was in the final phases of remedial works and the relationship with Mr A was already deteriorating as he was unhappy with the quality of the work. The Respondent did not at any stage mention the need for an egress window or highlight that the cinema box was not compliant with Building Regulations without it. The cinema-box was required by Mr A to be performance driven and it appears to the Committee that the insertion of an egress window would be likely to have had implications for the audio/visual performance. Aside from this, the Committee does not accept that this would have been a cheap or straightforward matter to correct at this stage in the project given the nature and operation of the acoustic materials that had already been installed. Further, there was a raised flower bed below the proposed window and the Committee considered that there was no thought given to the means of exiting from that window safely. There was no evidence that this solution had been explored or discussed with Mr A or Ms B.
- The Committee does not accept that it is credible that the Respondent would have failed to mention this important aspect if he had identified it. It is the finding of the Committee that not only was it overlooked within the original design, but that the Respondent never considered an alternative means of escape as required by Building Regulations.
- The Committee has also considered the lack of any balustrading guarding at the cinema level to comply with the Building Regulations Part K. Emails to Ridlands in February 2016 identify a list of snagging items in order to complete the project, but neither the alternative means of escape nor balustrading are mentioned as outstanding. The Committee concludes that the Respondent never gave these matters serious consideration and this was a serious failing on his part.
- Particular 3 – The Respondent did not have effective systems in place to ensure that his practice was run professionally and that projects were regularly monitored and reviewed, contrary to Standard 4.1 of the Architects Code – Found Proved
- The Committee noted that the Respondent explained that his systems were electronic. He explained that he had an electronic filing system which allowed him to access drawings and documents easily via a cloud storage system. The Respondent explained in his evidence that this was the first project he had undertaken as Dan Marçal Architects and it was being undertaken at the same time as his employment with another company. The Committee notes he was also acting as project manager for this project.
- The Committee considered that an electronic filing system could be an effective system and it makes no criticism of the Respondent organising his business in this way. It is entirely appropriate to make use of modern technology and to use different mediums to connect with clients and contractors. The Committee notes that there were emails between the Respondent and Ms B but it also accepts that it is likely there were text messages and telephone calls as well as face to face meetings. The Committee also notes that the Respondent chose to delete his records following the High Court proceedings and there is clearly some documentation that is no longer available. The Committee does not accept the evidence of the Inquirer that it was “extremely unprofessional” for the Respondent to delete information at the conclusion of the High Court proceedings. There is no requirement in the Code to keep records for a period of time and indeed information should not be retained for longer than required under data protection regulations. The High Court case was concluded and the Respondent did not consider he had any reason to retain the information.
- The Committee looked at the documentation that did exist and considered that even allowing for the fact that there may have been additional pertinent information, the Respondent did not have effective systems in place to ensure his practice was run professionally and that this project was regularly monitored and reviewed. Taking as an example the terms of appointment sent to Ms B. The Respondent had no system to monitor these terms to ensure they reflected the scope of the work and that they were updated where necessary. There was no system to check that the terms had been received by the Complainant or to chase up signed copies. There is no evidence that Ms B or Mr A were ever updated with regard to the overall costs and timing of the project at regular intervals either verbally or in writing.
- The Committee considered that more fundamentally there was no system in place to adequately deal with the evolution of the design process. The Committee considered that there was no evidence that the Respondent accurately recorded discussions and captured the Complainants’ requests and sought to agree the way forward with the Complainants by providing them with a summary or minutes of meetings and agreed actions.
- The Committee considered the Respondent’s notes but it did not accept that these were sufficient to demonstrate that he had effective systems in place to monitor and review this project. The Respondent made these notes for his own purposes. There is evidence that the Respondent sent emails to Mr A and Ms B after some of the meetings. It was the view of the Committee that these emails did not effectively record a summary of the agreed actions or adequately explain to Mr A and Ms B what had been decided.
- The Committee noted that the Respondent did not have a schedule to record when drawings had been updated or changed or to whom they had been issued. In a project such as this the Committee considered that it would be necessary to have a record of which drawings had been issued to which contractor and to have a record of when these drawings had been updated. For example, several 200 series drawings had the same drawing reference number but a different depiction and content.The Committee considered that there was no evidence that the Respondent had any effective system in place to allow him to record steps taken in the project. There was no evidence that Mr A or Ms B had formally approved the designs that had been sent to them or discussed with them and no record of their design brief in any of the correspondence. This was a recipe for confusion and disagreement. The Committee considered that the Respondent’s notes were not sufficient for this purpose and did not amount to an effective system to manage the project either as an Architect or with the additional responsibilities of project management.Particular 4 – The Respondent did not ensure that he had adequate and/or appropriate professional indemnity insurance. Found Proved.
- The Respondent states that he obtained the minimum cover of £250,000 as recommended by ARB. In his statement dated 9 May 2020 he stated that in his professional judgement this was sufficient as it represented over 50% of the capital value.
- During the course of the hearing many references were made to the actual contract cost of this project. Mr Salisbury on behalf of the Respondent contented that the contract price was £243,402 which was Ridlands’ costs. Mr Salisbury contended that it was not reasonable for Architects to obtain insurance solely on the basis of the contract costs otherwise Architects would have to obtain insurance for significant amounts beyond the perceived level of risk when working on large projects; in most cases this would be prohibitively expensive.
- The Inquirer in her report somewhat unhelpfully stated “Mr Marçal’s insurance did not cover the full cost of the successful claim against him and was therefore inadequate.” In her oral evidence, she conceded that she was not an insurance expert but in her opinion as an Architect in practice, the contract price would be a useful starting point and it might be prudent to take advice from an insurance broker.
- The Committee had regard to ARB’s guidance note on PII cover dated 2014 which states, “You should always seek advice from an appropriate expert adviser in relation to the insurance cover you intend to obtain including, for example, any exclusions from cover and the limit of any indemnity.”The Guidance goes on to state,“It is important to note that architects should maintain sufficient cover to enable them to meet claims arising from professional practice and bear in mind that claims may arise from personal injury as well as loss, damage, delay and additional costs. Even those architects with limited turnover or engaged in private works….. need to maintain a minimum level of cover.”
- The Committee noted the email sent to Mr A on 7 April 2015 about the costings for the cinema box. It states,“I attach revised summary costings. I make the total as £382,623. This excludes for lighting controls, sockets, floor boxes, door ironmongery and Olive AV equipment…. The above figure allows for the most expensive option on the glass box and for the most expensive fabrics….” (emphasis added).
- Mr A in his evidence stated that the value of the project was £450,000. He set out in his statement that the estimated cost of remedial works were between £200,000 and £300,000. Mr A explained that he was unable to recover his legal costs or the full amount of the judgement awarded.
- The Respondent was unable to meet the judgement from his own resources and was made bankrupt. This has involved the Respondent having to sell his assets, including his home and car and move into rented accommodation.
- The Committee was satisfied that as a matter of fact, the Respondent’s insurance cover was not adequate to meet the claim of Mr A given the subsequent events. The Committee had regard to what was reasonable and appropriate in the circumstances and took account of Standard 8.1 of the Code.
- The Committee considered that the costing of £382,623 which excluded the cinema equipment was a realistic and appropriate starting point. The Respondent’s cover of £250,000 could not be considered adequate or appropriate were there to be a claim.
- The Committee considered that the amount being spent by Mr A and Ms B far exceeded the Respondent’s level of PI cover. There was no evidence before the Committee that the Respondent took any advice from a broker about whether his cover was adequate or indeed whether his judgement of 50% of the contract price was a reasonable one in the context of the risks surrounding this project. In the circumstances the Committee considered that there was no credible evidence that the cover was adequate or appropriate for this project.Particular 5 – The Respondent placed himself in a position of conflict of interest by soliciting money from potential suppliers without the knowledge or consent of his clients. – Found Not Proved.
- The Committee had regard to the two emails relied upon by ARB in support of this particular. The first email dated 18 December 2014 to Mr W of Olive the AV equipment suppliers states as follows, “Morning [Mr W], Could you give me an update on the cinema? Also do I get a finders fee?” ARB submits that on the basis of the evidence of the Inquirer it was unprofessional to even request a finders fee without telling the Complainant and the Respondent placed himself in a position of conflict of interest even if no money changed hands.
- In his initial response to ARB dated 2 August 2019 the Respondent explained that there was no seriousness attached to this comment. It was a friendly comment said in jest. In his oral evidence the Respondent explained that there had been a mention by Mr W of a finders fee at a meeting and he was following up on that comment. The Respondent explained that nothing was ever agreed, there was no response to the email and the Respondent states that no money was ever discussed or changed hands. The Respondent stated that had Mr W agreed to pay a finders fee, he would have passed that on to the Complainants. There is no evidence that any money changed hands and the Respondent’s evidence has been consistent that it did not.
- The Committee had regard to Standard 1.4 of the Code which states as follows,
“Where you make or receive any payment or other inducement for the introduction or referral of work, you should disclose the arrangement to the client or prospective client at the outset.”
The Committee considered that the rule was clear. The making or receiving of payment was the trigger to inform the Complainant of the arrangement. There is nothing to suggest that soliciting the payment is unprofessional or in breach of Standard 1.4. Had ARB wished to prevent architects from ever making or receiving inducements then the rule would be clear that entering into any such arrangement was unprofessional. In the view of the Committee there is nothing in the rules that would prevent an Architect enquiring about an introduction or referral fee provided that it is disclosed to the Complainant when the payment is made or received.
- The Committee considers that it is material that no money changed hands nor was ever agreed to be paid. In these circumstances, the Committee did not consider that the Respondent could be said to have placed himself in a position of conflict of interest, either actual or potential. The Committee had no reason to doubt the Respondent’s evidence that had a finders fee ever been agreed he would have notified the Complainant.
- This reasoning also follows in the case of the email sent to the joiner on the 20 October 2015. The Respondent asked Mr H how much he wanted to charge. Mr H replied “What do you want me to charge here?”. The Respondent replied, “£45 per linear meter = 450 plus 50 for me = 500?” In his initial response to the ARB dated 2 August 2019 the Respondent stated,“Secondly, referring to the £50 applied to a rate this was in connection with design services provided on behalf of the joinery contractor. A detail drawing was required which I prepared in CAD, for which I considered a fee. It transpires no such addition was made anyhow to the invoice, I did not charge for the drawing, and that the resulting invoice is considerably lower than the rate described.”
- Later, in the Respondent’s statement and in the case put to ARB’s witnesses, the Respondent described the interaction as a joke or as banter between him and Mr H. In his oral evidence the Respondent was clearly very upset at the allegation and stated that he never took any kickbacks and there was certainly no payment made to him as a result of this exchange. The Respondent states the invoice sent to Mr A and Ms B did not incorporate a £50 payment for him. Although the Committee has not seen this invoice it has no reason to doubt this statement.
- The Committee was mindful that these proceedings have been ongoing for some time and the allegations relating to “kickbacks” have been robustly and consistently denied by the Respondent. There is no evidence before the Committee that any money changed hands or that Mr H’s invoice was inflated by £50.
- In these circumstances the Committee is not persuaded that ARB has demonstrated that the Respondent placed himself in a conflict of interest situation as a result of this email. ARB has not discharged its burden to persuade the Committee that the email, by itself, is evidence that the Respondent placed himself in a conflict of interest situation. For the reasons given above, the Committee does not accept that asking for the payment is enough to give rise to a conflict of interest or is unprofessional. In the absence of any evidence that money was agreed to be paid or any evidence of an attempt to charge this amount, the Committee accepts the Respondent’s explanation that it was not an attempt to obtain a payment without the knowledge of the Complainants. Accordingly, the Committee considers that this particular has not been proved.Particular 6 – The Respondent’s actions at Particular 5 were dishonest and/or lacked integrity. Not Proved
- Given the findings made in relation to Particular 5 this particular falls away.
Unacceptable Professional Conduct
- In deciding whether the facts found proved amount to UPC the Committee had regard to the Architects Act 1997 which defines UPC as “conduct which falls short of the standard required of a registered person.” The Act sets out at paragraph 13 the ARB “shall issue a code laying down standards of professional conduct and practice expected of registered persons.” The Committee also had regard to the guidance to the Code which states, “Not every shortcoming, or failure to meet the Standards expected by the Code, will necessarily give rise to disciplinary proceedings.”
- The Committee had regards to the case of Spencer v General Osteopathic Council  EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct 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. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that
“a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.
- The Committee also had regard to the case of Vraniki v Architects Registration Board  EWHC 506 (Admin) which set out that it is the correct approach of the Committee to consider all of the paragraphs of the allegation that have been found proved and to decide whether, together they establish the charge of UPC.
- The Committee noted Mr Salisbury’s submissions regarding whether the conduct could be more properly categorised as SPI. It had regard to its earlier determination regarding the approach to be taken to finding UPC and in particular paragraphs 77 and 80-82 of this determination. The Committee noted Mr Salisbury’s submission that the cases involving healthcare professionals were of no assistance and should be disregarded.
- The Committee considered the correct approach was to determine whether the facts found proved could amount to UPC as set out in the Act. The Respondent is not charged with SPI and therefore if the conduct is SPI and does not amount to UPC there can be no finding in these circumstances. What amounts to UPC is a matter for the Committee exercising its professional judgement. In determining the required standard the Committee had regard to the Architects Code: Standards of Professional Conduct and Practice 2010. It bore in mind that a breach of the Code is not necessarily sufficient to amount to UPC. The Committee took into account the relevant case law as set out above and had in mind that such a breach must be serious.
- The Committee considered that the failure to send an adequate terms of business letter to Ms B and Mr A was a serious falling short of the standards required of a registered architect. The Committee considered that the Respondent had breached Standard 4.1 of the Code. The Committee noted the Respondent’s explanation that it was a typing error followed by a refusal to sign the terms. It reminded itself of the factual findings it had made and it preferred Mr A’s evidence that adequate terms were never sent to them for this project, nor did they ever refuse to sign any. The Committee considered that this went beyond a typographical error and subsequent oversight. The Committee considered that the Respondent had not given any proper thought to the terms of his appointment with Mr A and Ms B and had not taken adequate steps to provide the information required by Standard 4 of the 2010 Code to the Complainants.
- The effect of this failure was that Mr A and Ms B were not aware of the limits of the Respondent’s indemnity, the scope of the work that had been agreed or the Respondent’s complaints handling procedure. Mr A and Ms B were unaware that they could complain to ARB. The initial undelivered terms did not set out all of the information required by the Code and in any event the project changed significantly following the failed attempt to send those terms. At no stage did the Respondent attempt to update the terms to take account of the variations to the scope of the work as required by Standard 4.5 of the 2010 Code.
- The Committee considered that this went beyond an oversight. It was a deliberate course of conduct over an extended period during which the Respondent did not give adequate regard to his obligations to provide this information to the Complainants. The Committee considered that this could properly be described as a serious falling short of the standards required and amounted to UPC.
- The Committee considered that the failure to ensure the design complied with Building Regulations was a basic and fundamental error which had significant and potentially very serious consequences for Mr A and Ms B. The Committee noted that the Respondent had been sent a copy of the relevant regulations by the Building Control Officer. It was the Respondent’s case that he was aware that there needed to be a secondary means of escape and guarding of the open area at cinema level but the Committee did not accept this.
- In these circumstances, the Committee considered that this was a serious falling short of the standards required. It is a basic expectation that Architects will design projects that comply with the relevant regulations. In this project, the Respondent’s failure to address these aspects meant that there was a very real safety risk for Mr A and Ms B when using the cinema box. In addition, as the cinema box was non- compliant with Building Regulations this could have had implications for any future sale of the home. The Committee considers that these went beyond technical matters that could be easily rectified. The Committee did not accept that these were matters that could be abrogated to Ridlands and the Respondent, as Architect was responsible for them. The Committee considered that this was a serious falling short of the standard expected of an architect and was UPC.
- The Committee considered its factual finding that the Respondent failed to ensure that his practice was run professionally. The Committee considered that the Respondent’s approach to this project was reactive and that he did not take steps to actively monitor and document the progress of the project. The Committee considered that this was more than an isolated lapse and was symptomatic of the Respondent’s approach. The Committee did not doubt that the Respondent was committed to the project and spent a very considerable amount of time dealing with the matters that arose. The Committee did not consider that the Respondent delayed dealing with matters or was not engaged or available. Rather, the Committee considered that the Respondent had not taken the time to properly record discussions and agreements. Consequently, there was no effective communication with Mr A and Ms B about the evolution of the project and the Respondent did not manage their expectations by confirming in writing a summary of what had been agreed and the timescale for next steps. The Respondent’s notebooks were kept for his own reference and not translated into updates for Mr A and Ms B. The Committee accepts that it is likely there was a considerable amount of verbal communication that was not followed up in emails.
- The Committee considered that this failure to implement effective systems to review the project together with the confusing duplicated drawing numbers with no issue schedule contributed to the overall lack of clarity on the part of Mr A and Ms B about what they were expecting and when it would be completed.
- The Committee considers that this is not a technical or minor failing and, in the view of the Committee, it directly contributed to Mr A and Ms B being dissatisfied and unable to reconcile what they ended up with when compared to what they were expecting.
- The Committee considered its finding that the Respondent did not have adequate indemnity insurance. The Committee considered that the Respondent did not seek any guidance about whether his cover was adequate and formed his own view that 50% of the contract sum was appropriate. This is leaving aside any consideration of consequential losses arising from delay, personal injury or legal fees. The Committee considers that this was a deliberate choice by the Respondent to insure for only a proportion of the contract sum and leave himself open to the risk that if there was a claim it would not be for the total amount spent by the Complainants on this project.
- The Committee did not consider that the losses in this project were so unforeseeable or out of proportion or connection to the work undertaken by the Respondent so as to justify the limit of insurance which was the minimum required by ARB. The Committee considered the Respondent demonstrated a thoughtless and reckless approach to insurance cover which left Mr A and Ms B at risk and ultimately significantly out of pocket. The Committee took into account that this also had devastating consequences for the Respondent and led to his bankruptcy. Nevertheless, the public would expect Architects to have adequate insurance.
- The Committee considered that this was a clear breach of Standard 8.1 of the 2010 Code and was a serious falling short of the standard expected and amounted to UPC.
- It is the Committee’s finding that the facts found proved and the corresponding breaches of the Code are serious and adversely impact both on the reputation of the Architect and the profession generally. Cumulatively and individually they represent a standard of conduct falling significantly and materially below the standard expected of a registered Architect.
- In all the circumstances and for the reasons set out above, the Committee finds that the Respondent’s conduct does amount to unacceptable professional conduct.
25 May 2021
- Ms Sheridan set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. Ms Sheridan submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction. Ms Sheridan confirmed that the Respondent had no previous regulatory history with ARB. She submitted that the Committee might be minded to consider the following aggravating factors:
- There was a repeated course of conduct in relation to the terms of business as this persisted beyond the original email error and the Respondent did not seek to revisit the position when the scope of the project changed;
- This failing in relation to terms had a significant impact on the Complainants as they were not aware of the limits of the Respondent’s indemnity or that they could complain to ARB;
- The lack of compliance with Building Regulations had a significant effect in terms of the safety of the cinema box and the implications for any future sale of the property. Ms Sheridan submitted that this failing was particularly aggravated by the fact that the Respondent had the relevant regulations forwarded to him by the Building Control officer at an early stage in the project;
- The Respondent’s failings in relation to effective systems and procedures was a pattern of poor conduct. Ms Sheridan submitted that it was especially important where the project involved a novel design;
- The failure to ensure the Respondent had adequate insurance indemnity cover has resulted in a significant financial loss to the Complainants;
- The Respondent has demonstrated limited insight and remediation in relation to his conduct and there has been a reluctance to acknowledge failings.
- Mr Salisbury produced a Mitigation Statement dated 25 June 2021 consisting of 23 pages. Within that statement there were email testimonials attesting to theRespondent’s work in relation to other projects. The writers of those emails did not comment on the allegations found proved or indicate any awareness of them. Mr Salisbury also addressed the Committee orally in mitigation on behalf of the Respondent very briefly and re-iterated his written submissions.
- In summary, Mr Salisbury submitted that the Committee’s decision in relation to facts and UPC was wrong in law and the Committee “had made a fool of itself”. Mr Salisbury submitted that the allegations found proved did not involve bad character. Mr Salisbury submitted that the Respondent made a mistake with regard to the Building Regulations matters. However, this was minor in nature and would have been corrected had the project been concluded under his professional engagement. The Respondent does not accept the Committee’s finding about the seriousness of this issue. With regard to the Committee’s finding about “effective systems” Mr Salisbury, in his written submissions, took issue with the conclusions of the Committee and stated that it would be perverse to impose any sanction on the Respondent on the basis of these findings. Mr Salisbury submitted essentially the same point in relation to the indemnity insurance. A significant proportion of the mitigation statement was a criticism of the findings of the Committee. Mr Salisbury maintained that the allegations found proved were more properly characterised as SPI rather than UPC.
- Mr Salisbury submitted that the concept of the reputation of the profession was a construct of ARB and not mentioned in the Architects Act. Mr Salisbury stated that the case law in this area had no relevance to the Respondent’s case and in particular Bolton v The Law Society and other cases which deal with the reputation of other professions had no applicability here. Mr Salisbury repeated his earlier arguments relating to the Architects Act being a penal act requiring construction in favour of the Respondent.
- The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board and to declare and uphold proper standards of professional conduct and behaviour. TheCommittee has carefully considered all the evidence and submissions made during the course of this hearing.
- It has heard and accepted the advice of the legally qualified chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement. The Committee considers that upholding proper standards of conduct and behaviour is an appropriate aim of any sanction and the cases involving other professions are relevant.
- The Committee wishes to be clear that the Respondent has every right to disagree with its findings and to challenge the case that was brought by ARB. The Committee notes that the decision in relation to facts and UPC was delivered on the 25 May 2021. The Committee has taken account of the Respondent’s challenges to the findings made by the Committee. In deciding what sanction is appropriate, the Committee has considered the seriousness of the facts it has found proved and weighed into the balance all of the evidence it has seen and heard.
- The Committee has identified the following aggravating factors:
- the Respondent’s failings resulted in a substantial loss to the Complainants;
- the Respondent’s failings, while on a single project, were wide ranging;
- the Respondent’s failure with the terms of business persisted even when it should have been addressed as the scope of the project changed;
- The Committee considered that the information before it suggested that the Respondent still did not fully understand the requirements of the Code in relation to the terms of business. There was no documentary evidence before the Committee of how the Respondent would ensure that clients are provided with all relevant information in the future. There was no evidence from the Respondent about what steps he has taken to ensure that clients are provided with relevant information or how projects would be managed in the future. Nor was there any evidence of what steps the Respondent would take in the future to ensure awareness of and compliance with Building Regulations, or that adequate insurance would be obtained. The Committee notes, and has taken into account, that the Respondent is now in employment and not currently working on independent projects but recognises that this situation may change.
- The Committee has identified the following mitigating factors:
- The Respondent has no adverse regulatory history since joining ARB’s register in April 2007.
- This was a complex project and was one of the first projects the Respondent had undertaken on his own account. There was evidence that the Respondent was committed to the project and was genuinely trying to achieve an impressive result for the Complainants.
- There was no financial gain to the Respondent arising from the misconduct and the impact of the legal proceedings has resulted in very significant financial and personal consequences for him. The Respondent also made some limited admissions at the outset.
- The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
- The Committee first considered whether to impose a reprimand. The Committee considered that the conduct was too serious for a reprimand. It considered that although the Respondent had a previous good disciplinary history, this was not of itself enough for a reprimand to be appropriate. The Respondent’s failings had a significant impact on the Complainants and the reputation of the profession. Although the Committee accepted that the Respondent had been made bankrupt and it had no doubt that the ARB hearing process had been a salutary lesson, this was not sufficient of itself to uphold proper professional standards. The Committee considered the Respondent’s failings too serious for such a sanction to be either appropriate or proportionate.
- The Committee then considered whether to impose a penalty order. For the same reasons as set out above it considered that this was not the appropriate and proportionate sanction to uphold proper professional standards and public confidence in the profession. The Committee considered that the Respondent’s conduct was not at the lower end of the spectrum and encompassed multiple serious failures in one project. The Committee considered that the Respondent’s conduct had caused significant financial loss to the Complainants and compromised their safety. The Committee considered that a penalty order would not reflect the seriousness of the UPC found proved.
- The Committee next considered whether to impose a suspension order. The Committee considered that this would address the seriousness of the UPC found proved. The Committee considered that the conduct is capable of being remedied and it is not incompatible with the Respondent continuing to be a registered architect. The Committee does not consider that the Respondent is unable to appreciate the nature of his failings such that he should be erased from the Register. The Committee therefore decided that a period of suspension for 12 months was the appropriate and proportionate order. This period was sufficient to protect the public and to uphold the reputation of the profession.
- The Committee acknowledged that the order was likely to have a significant impact on the Respondent and it took into account all of the circumstances. However, it considered that it was appropriate to temporarily remove the Respondent from the register for this period in order to uphold proper professional standards and to maintain the reputation of the profession.
- That concludes this determination.