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Mr David Karl Seddon

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

David Karl SEDDON

045603I

Held as a video conference

On 25-29 September 2023

———

Present

Martin Winter (Chair)

Stuart Carr (PCC Architect Member)

Martin Pike (PCC Lay Member)

———

 

In this case, the Architects Registration Board (“ARB”) is represented by Mr Greg Foxsmith.

Mr Karl Seddon has attended this hearing but is not legally represented.

The PCC found Mr David Karl Seddon guilty of unacceptable professional conduct (“UPC”) in that he:

  1. The Registered Person did not provide adequate terms of engagement, contrary to Standard 4.4 of the Architects Code;
  1. The Registered Person issued an invoice on 12 January 2022 for additional fees of £500 for work that had not been previously discussed with and/or agreed by the client;
  1. The Registered Person did not provide the client in a timely manner with evidence of expenses, to which they were entitled;
  1. The Registered Person’s actions at particular 2 lacked integrity

 

 

and that by doing so, he acted in breach of Standards 1.1, 4.4, 6.2 and 6.3 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is a financial penalty order of £2,500.

 

 

  1. The allegation made against David Karl Seddon (“the Registered Person”) is that he is

guilty of Unacceptable Professional Conduct. The Architects Registration Board (“the ARB”) relies upon the following particulars in support of the allegation:

 

 

 

  1. The Registered Person did not provide adequate terms of engagement, contrary to Standard 4.4 of the Architects Code;

 

  1. The Registered Person issued an invoice on 12 January 2022 for additional fees of £500 for work that had not been previously discussed with and/or agreed by the client;

 

  1. The Registered Person did not provide the client in a timely manner with drawings and/or evidence of expenses, to which they were entitled;

 

  1. The Registered Person’s actions at particular 2 lacked integrity

 

In doing so, it is alleged that the Respondent acted in breach of Standards 1.1, 4.4, 6.2 and 6.3 of the Architects Code: Standards of Conduct and Practice [2017] (“the Code”).

 

 

 

  1. The Registered Person, upon the charge having been read to him, denied the charge.

 

Background

 

  1. Mr Hine (“the Referrer”) and his wife engaged the Registered Person in respect of architectural services to their property in Alderley Edge, Cheshire (“the Property”). The Registered Person is a Director of the Howard & Seddon Partnership (“the Partnership”).

 

  1. The Registered Person attended the Property on 10 May 2021 for a site visit. On 13 May 2021 he emailed the Referrer his fee proposal (Exhibit 2, Pages C4 – 8) and attached his General Terms of Engagement (Exhibit 3, Pages C9 – 10).

 

  1. The scope of services set out within the fee proposal was in relation to an extension and remodel of the Property; Part A involved undertaking a survey of the existing site and buildings charged at £1450 plus VAT. Part B1 involved the development of the scheme proposals including floor plans, elevations and a site plan at £1850 plus VAT, Part B2 involved scheme development at £500 plus VAT, Part B3 involved work “to submission for detailed planning” at £350 plus VAT and Part B4 involved liaising with the Local Planning Authority during the submission of an application for detailed planning permission at £350 + VAT (Exhibit 2, Page C6).

 

  1. On 14 June 2021, the Referrer and his wife received a first draft of the design proposal

from TB, who was employed at the Partnership. A copy of the email is produced at Exhibit 4 Page C12 and the proposals at Exhibits 5 – 10. Over the following months there was some back and forth between the Referrer, his wife and the Partnership with regards to revisions to the design. By August 2021 he asked the Registered Person to suspend work (Exhibit 49, Page C95).

 

  1. Following this request, the Registered Person visited the Referrer on 19 August 2021 and it was agreed the Partnership would continue to work on the Project.

 

  1. Following additional drawings being received, on 12 October 2021, the Registered Person was emailed requesting that he “stop any further design work on our Property and forward an invoice for the initial survey works”. The Referrer wished to terminate the contract. Within this email, the Registered Person was asked to send the Referrer an electronic version of the survey (Exhibit 11, Page C20).

 

  1. A response was received from SM of the Partnership, querying the Referrer’s concerns (Exhibit 12, Pages C22 – 23). The Referrer responded on 13 October 2021 advising that he “would still like to pull out amicably” (Exhibit 12, Page C21 – 22). He confirmed he would pay for the Survey works, Part A, but would be reviewing the invoice for the proposed drawings for submission.

 

  1. The Registered Person responded on 14 October 2021 (Exhibit 12, Page C24). He confirmed he would invoice the Referrer for the work undertaken and he would require payment to release the AutoCAD drawings. He asked the Referrer if they wished for the Partnership to complete “minor tweaks” so that the drawings could be submitted for planning. He also accused the Referrer of “trying to seek excuses not to pay”.

 

  1. On 1 November 2021, the Registered Person’s invoice was sent by email (Exhibit 13,Page C25). The invoice, produced at Exhibit 14, Pages C26 – 28, charged the Referrer for the Part A “Survey Work” as well as the Part B “Scheme Proposals”. The Referrer contacted the Registered Person’s secretary, Julia Nolan, on the same day as receiving this invoice as he disputed that the full fees for Part B were owed. The Referrer followed up this telephone call with an email, produced at Exhibit 16, Page C30. The Referrer made a payment of £1740 (made up of £1450 plus VAT for the Part A works) (Exhibit 17, Page C31). He disputed paying the remaining £3013.80.

 

  1. Thereafter, the Referrer sent correspondence to the Registered Person outlining his concerns about the disputed invoice on 15 November 2021 (Exhibit 18, Pages C32 –33), 6 December 2021 (Exhibit 20, Page C37) and 3 January 2022 (Exhibit 21, Page C38). The Referrer attached to that later email his Letter Before Claim (Exhibit 22, Pages C40 – 41) as he had not received the AutoCAD drawings he had paid for in November 2021.

 

  1. During this time, the only response he received from the Registered Person was an email on 16 November 2021, in which he acknowledged the dispute and that he would respond “as soon as he possibly can” (Exhibit 19, Page C36).

 

  1. On 4 January 2022, the Referrer attended the offices of the Registered Person without making an appointment. The Referrer collected the house drawings he had given the Registered Person at the outset of his appointment and confirmed his position that the fees requested in the invoice of 1 November 2021 was not a fair reflection of the work that had been done.

 

  1. The Registered Person did not agree with his position. The Referrer sent a follow-up email summarising their discussions produced at Exhibit 23, Page C42. In particular, he highlighted what he had said to Julia Nolan on 1 November 2021 with regards to disputing the amount on the invoice and that he had “never said [he] would not pay, but will not pay an invoice which is clearly incorrect”.

 

  1. The Registered Person sent a letter to the Referrer by email on 6 January 2022, produced at Exhibit 24, Pages C43 – 45. The Registered Person advised, in summary, that he had produced six schemes for the Referrer, undertaken additional work of over £4,500 net that they had not invoiced for, he had not been able to issue the AutoCAD drawings because the Referrer was in breach of contract in not settling the invoice and that he believed the Referrer’s actions were to obtain the drawings without paying properly for them.

 

  1. The letter stated: “In relation to the invoice, you mentioned that we have not substituted for planning and therefore £350.00 net should be deducted. However, given that you have not paid for any of the work other than Option (1) of the Appendix A, I do not propose to change the account if now paid, I will accept this sum of this account in full and final settlement. (You offered to pay £500.00 in any event. See Appendix A). Thus please arrange immediate settlement; and only then will I release the CAD files for the work you have paid for in full and final settlement of this matter.” “Please arrange settlement within 7 days. A copy of the account dated 18 October 2021 against which you have paid £1,740.00, leaving a balance due and outstanding of £3,013.80 being the balance.” (Exhibit 24, Pages C44- 45).

 

  1. In response the same day, the Referrer advised that “…despite what has been said, we will pay £3,018.80 in full and final settlement on the assurances that all the Auto-CAD files will be released to us.” (Exhibit 25, Pages C51-52).

 

  1. On 11 January 2022, the Referrer paid the outstanding balance of £3013.80 (Exhibit 27, Page C55). The invoice confirming receipt of this payment, dated 13 January 2022, is produced at Exhibit 28, Page C56.

 

  1. On 12 January 2022 the Referrer paid the invoice and confirmed to the Registered Person that he had done so. On 14 January 2022 he received an email from Julia Nolan (C57) acknowledging the payment but stating that there remained a shortfall of £618 including VAT for “additional work that you authorised on 1.11.21”. The Referrer responded later the same day describing the additional fees as “outrageous” and “not very professional” and denying that he had authorised any additional work as described.

 

  1. Later the same day the Referrer received a further email from the Registered Person attaching a revised invoice, dated 7 January 2022 (Exhibit 26, Page C53 – 54). This invoice charged an additional £500 in fees for – “additional work client agreed to an increase of £500.00. With reference to his conversation of 1 January 2022 for some additional design work”.

 

  1. On 16 January 2022, the Referrer responded confirming he had not agreed to additional works and that “You can’t send an email / letter “without prejudice” in full and final settlement, offer to send out the drawings then go back on your word” (Exhibit 32, Pages C60).

 

  1. On 26 January 2022, the Registered Person responded (Exhibit 33, Page C61) advising that the Referrer had agreed to pay additional fees of £500 and attached the telephone attendance note drafted by Julia Nolan at Exhibit 15, Page C29. He confirmed he would not release the AutoCAD drawings until the additional fee of £500 was paid. The Referrer’s response to this is produced at Exhibit 34, Pages C63-64). He confirmed that the amount of £500 discussed with Julia Nolan on 1 November 2021 related to the item for “Scheme Development” included in the original invoice at Part B2 and was not an “additional fee”.

 

  1. The Registered Person’s response, dated 27 January 2022 and produced at Exhibit 35, Page C65, was that the AutoCAD drawings would not be released until the additional work was paid for. Following this, the Referrer initiated civil proceedings against the Registered Person on 12 April 2022(Exhibit 36, Page C66).

 

  1. The Registered Person issued a counterclaim. In September 2022, the parties agreed to settle the proceedings on a “drop hands basis” (Exhibit 41, Page C77). The Referrer was provided with drawings via the Registered Person’s solicitor on 20 September 2022 however these were in pdf. as opposed to AutoCAD format (Exhibit 42, Page C78). These were resent on 22 September 2022, this time in AutoCAD format, but the drawings appeared to have another client’s information on them (Exhibit 44, Page C80).

 

  1. The Referrer advises he made repeated requests for the drawings to the Registered Person’s solicitors which went unanswered (Exhibit 45, Pages C81 – 84).

 

  1. On 23 October 2022, the Referrer made his complaint to the ARB (Exhibit 1, Pages C1 – 3). Thereafter, he received an email from the Partnership on 10 March 2023 attaching the drawings (Exhibit 45, Page C85). The Referrer advises that these were not in the correct format and so he made a further request for the AutoCAD files on 11 March 2023 (Exhibit 46, Page C86). These were provided on 27 March 2023 (Exhibit 46, Page C91-94).

 

Findings of Fact

 

  1. The PCC rules, as amended, make it clear that the burden of proof at the fact-finding stage of this hearing is on the ARB. So it is for the ARB to prove the factual particulars set out in the allegation. It is not for the Registered Person to disprove them. The fact that chose to give evidence does not shift the burden onto him, it remains throughout on the ARB at the fact-finding stage. ARB has to prove the charges on the balance of probabilities, the standard of proof is the standard approved and used in civil proceedings in courts in England and Wales.

 

  1. The hearing Panel took into account the established case law that, although the standard of proof always remains the same, namely on the balance of probabilities, that the more serious the charge then it is inherently less likely to have been committed so the more cogent is the evidence needed to prove it.

 

  1. The factual particulars ran to 4 subdivisions. The allegation at particular 4 require the Panel to consider, if particular 2 is proved, whether that matter lacked integrity. The Panel must make separate decisions in respect of each of those disputed charges.

 

  1. The Panel was provided with guidance by the Chair in relation to the concept of integrity. The Panel was reminded of the principles contained in the cases Wingate and Evans v Solicitors Regulation Authority which was heard together with the case of SRA v Malins reported at 2018 EWCA civil division 366. The Panel was advised that Integrity is a broader concept than honesty, hence it is less easy to define in professional codes of conduct. The term integrity is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members.

 

  1. The Panel was reminded that neither courts nor professional tribunals must set unrealistically high standards. The duty of integrity does not require professional people to be paragons of virtue in every instance. Professional integrity is linked to the manner in which the particular profession professes to serve the public.

 

  1. A professional disciplinary tribunal has specialist knowledge of the profession to which the Registered Person belongs and of the ethical standards of that profession. Accordingly, such a body is well placed to identify lack of integrity.

 

  1. The Panel was referred to the case of Hoodless and Blackwell v Financial Services Authority (2003) (FSMT 0007) in which the court stated, with regard to the concept of integrity, “integrity involves the application of objective ethical standards. In our view integrity connotes moral soundness rectitude and steady adherence to an ethical code” the inability to distinguish between, and thus adhere to, what is regarded by ordinary standards as honest conduct is an example of a lack of integrity.

 

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

 

  1. In the case of Vukelic v financial standards authority (2009) – the upper tribunal concluded that V had not acted deliberately, and was therefore not dishonest, but he turned a blind eye to what was obvious and thus lacked integrity. The tribunal also cautioned against trying to formulate a comprehensive test for lack of integrity observing that it can be readily recognisable by those with specialist knowledge and or experience in a particular market. This caution was reinforced in the case of the Solicitors Regulatory Authority v Chan (2015) EWHC 2659 (Admin) – in which Davis LJ stated “want (or put another way “lack”) of integrity is capable of being identified as present or not…by an informed tribunal … by reference to the facts of a particular case”

 

Evidence of the Referrer – Nigel Hine

 

  1. The Referrer adopted his statement as his evidence.

 

  1. The Referrer confirmed that he sent an e-mail to the Registered Person to stop work and send a final invoice on the 12th October 2021. On 13th October he contacted the office again expressing his desire to pull out of the contract amicably. The Registered Person informed him that an invoice would follow. He expected an adjustment on the fee to reflect the work actually done and that this would be less than the figure set out in the original proposal.

 

  1. On the 1st November 2021 the Referrer received the invoice but noted that it was dated 18th October 2021. In the correspondence from the Registered Person the Referrer noted that he had been accused of nitpicking. The same day he called the registered persons office and spoke to Julia Nolan, the personal assistant. He recalls disputing the invoice in part. He accepted that he would pay the Part A survey work but disputed the remainder. He asked that the Registered Person called him back to discuss the matter. He sent an e-mail later the same day setting out a summary of what had been discussed with Julia Nolan (C30).

 

  1. The Referrer confirmed that he had asked for the complaint procedure, but he had never been provided with it. He describes a lack of contact from the Registered Person between November 2021 and January 2022. Frustrated by the lack of progress he sent a letter before action to the Registered Person on 3 January 2022.

 

  1. On 4th January 2022 he attended unannounced at the Registered Person’s office. He was respectful towards staff but accepted that he was tense and expecting a confrontation. He met with the Registered Person who he described as being polite. He asked the Registered Person for his drawings and was provided with his original drawings. He described the Registered Person as being fairly angry but trying to be calm when clearly frustrated when trying to find these drawings. He accepted that it was a difficult conversation and that there was a slightly elevated tone of voice from the Registered Person who he described as “hyperventilating”. The Registered Person offered to complete the project work which the Referrer declined. The Registered Person was calm by this point.

 

  1. The Referrer sent an email to the Registered Person some 5 hours after the meeting. This summarised the content of the earlier meeting. There was a hope that the matter could be resolved amicably. The Registered Person responded with a “without prejudice” letter asking for payment (C43) to which the Referrer responded confirming he will pay on assurances that the Auto CAD drawings would be returned. This decision was a consequence of the perceived threat of litigation. He had not received any information about his outstanding queries.

 

  1. The Referrer hoped to put everything behind him and paid the amount on 11 January 2022. A short time later a further £500 was demanded. The Referrer states he had never agreed to pay £500 nor authorised further work. At paragraph 42 he stated that the £500 discussed on 1 January 2021 might relate to the £500 figure at B2 on the fee proposal. Whatever the confusion was it was not due to Referrer authorising extra work. The Referrer felt that he was being charged for something that was not properly invoiced.

 

  1. By 12 April 2022 the Referrer commenced a small claim in court. The Registered Person issued a counter claim and each party walked away and settled in September 2021. He received an email purporting to be AutoCAD files but were in pdf format. On 22 September 2021 a further email was sent but again some problems with the content arose. The matter was resolved on a “drop hands” basis with assurances that the AutoCAD errors would be rectified and sent. Eventually on 29 March 2023 they were received. In October 2022 the Referrer made a complaint to ARB.

 

  1. In cross examination the Referrer confirmed that the amount of £47.50 for out of pocket was not explained. The Referrer accepted sending an email that his wife “loved the scheme” but did not say so himself, but he did not express any negative views.

 

  1. He stated that he expected a dispute process as he had disputed the invoice. If the invoice had been updated and explained he believed this could have been resolved. He disputed refusing to pay.

 

  1. He responds to questions from the panel, the Referrer confirmed that on 22 September 2021 one CAD file was received. He was expecting 1 CAD file with 26 separate drawings and thought most were missing from that file. The Part A survey work was included and then an incomplete set of scheme drawings. This was acknowledged by the Registered Person’s solicitor and later resolved.

 

  1. The registered person opened his case and called Julian Nolan as his first witness. She confirmed that she had taken the telephone call from the Referrer on the 1st November 2021. She has little direct recollection of the conversation and could only refer to the note she had taken and the invoice related to the query. Her recollection was that the Referrer had agreed to pay £1450 and £500 but disputed the rest. She confirmed that to the best of her knowledge and having referred to the invoice that the sum of £500 would have related to Part B2 of the proposal and related to scheme development. In response to questions from the Panel she confirmed that the £500 could not have related to a fee related to additional work not covered on the proposal. She confirmed that she passed her note to the registered person. She acknowledged that the Referrer sent an e-mail summarising that conversation and accepted that the e-mail makes no offer to pay £500 for additional work.

 

  1. The registered person gave evidence and adopted the documents previously submitted to ARB. He described how the project with the Referrer included many scheme proposals and that they were all liked by the Referrer. Many changes were made as the project progressed. He described being £4800 out of pocket because of the additional work for which he did not invoice, nor did he have any intention of invoicing. He described this work as being “out of the goodness of his heart”.

 

  1. The registered person stated that the Referrer was not satisfied with all of his good work. He believed that the Referrer was manoeuvring to avoid payment and started to make unwarranted criticisms. He believed that he was discredited by the Referrer. He described the Referrers actions as “a vendetta” and referred to him as “a liar”.

 

  1. He describes that the Referrer was entitled to end the contract and this was his prerogative but that his firm could have done no more. He described being insulted by the lack of gratitude. He stated that the Referrer did not pay his bill and so no CAD files were sent. He confirmed that his view was that the complaints and inquiries by the Referrer were nitpicking.

 

  1. The registered person explained how he was distrustful of the Referrer. He denies that he had ever accepted the payment as full and final settlement. He states that the Referrer had offered to pay an additional 500 pounds during the conversation with Julia Nolan on 1st November 2021.

 

  1. He confirmed that on the 6th January 2022 he told the Referrer that they were in dispute and that he required the £500. He states that he removed the £350 element of the invoice which he conceded was a mistake. At the same time he added the £500 which he believed the Referrer had agreed to pay. He stated that he was unaware when the payment was made but was able to produce a Ledger showing that the payment was recorded on the 13th January 2022.

 

  1. He stated that he believed he was dealing with a treacherous person, and this became time consuming. He was using lawyers for advice and to deal with this matter. There was a claim from the Referrer in April 22. The registered person felt he might as well make a counterclaim.

 

  1. Eventually, he was happy to issue the CAD files and instructed lawyers to close the matter. There was in his view further nit-picking about the files. The Referrer, he said, made “a big fuss” so 2 days later he issued them. Then he wanted a paper copy.

 

  1. The registered person explains that he did not know how to deal with this situation.

 

  1. He accepted that the terms of engagement did have some missing terms. He had asked his lawyers to draft these. He explained how he had dealt with 15000 cases over 45 years without a problem but has since gone back to lawyers and told them to address the issues.

 

  1. The registered person explained that as a sole proprietor he does not use alternative dispute resolution schemes and deals with all disputes himself. He stated that if he could not resolve the matter himself than the dispute would be dealt with in court.

 

  1. He explained that his complaints procedure is set out at term 15. There is no other procedure available due to the small size and personal service provided. He appreciated that his registration with ARB was not on the terms of engagement.

 

  1. In cross examination the Registered Person accepted that out-of-pocket expenses would be small for a project like this. He maintained that it is nit-picking to ask for the figure of £47.50 to be explained. He maintained that he was very busy delivering a service to all his clients.

 

  1. He holds ARB in high regard and seeks to maintain the standards although he admitted that he had not looked at them until recently. He accepted the need for a complaint handling procedure but dealt with it in his own common-sense way.

 

  1. In relation to the expenses figure of £47.50 he confirms that there is a time sheet that collates the miles which totalled in this case 86 miles at 55p. £47.30 was his figure which he wrote to be added to the invoice. His poor handwriting has confused Julia Nolan who entered £47.50. He accepted that this explanation could easily have been relayed to the Referrer. He explained this omission as “human failings” and that he worked very long days and related how his pride had been hurt by the experience with the Referrer.

 

  1. He stated that he had “stepped away” from the complaint because this had upset him so much. He believed that the invoice sent to the Referrer was a fair invoice and was able to explain to the Panel that he provided services far beyond that which was set out in the original proposal for which he never intended to raise further fees.

 

  1. He found it “unbelievable” that he had received a complaint and could not see an issue with the account and repeated that his view was that the Referrer was seeking a discount. He was frustrated and did not know how to resolve the matter.

 

  1. The Registered Person explained what took place at the meeting with the Referrer at his offices on the 4th January 2021. He accepted that his handwritten notes make no reference to an amount of £500 remaining in dispute or being raised as an extra fee. He agreed that the Referrer sent an email the same day, but remained distrusting of the Referrer. He did not challenge the content of that e-mail.

 

  1. He felt the dispute was now out of control and he placed the matter in the hands of his lawyers.

 

  1. When questioned about page C43 and the letter dated 6.1.22 he maintained that this was not an offer by him to settle the dispute. He agreed that on 12 January 2022 £3013.80 was paid. He denied that he was holding the Referrer to ransom after the payment was made. He believed the £500 remained properly due. He denied that his actions fell below the requisite standards of an architect and denied lacking integrity in the way that he resolved the matter.

 

  1. The Registered Person accepted that providing details of the out-of-pocket expenses would have been a simple process, but stated that the request for this information was mischievous.

 

  1. In response to a question from the Panel he agreed that in the letter at C45 he set out “…I do not propose to change the account if now paid…” this was a response the threatened legal action and that they were in dispute. He was clear in his mind when he wrote the letter of 6 January 2022 that he had decided to add the £500 that had been agreed in the meeting with the Referrer on 1 January 2021. He accepted that the letter did not reflect that and although he asked for £3013.80, he was actually wanting to be paid £3513.80 to settle the account.

 

Findings of Fact

 

  1. In reaching its decision the PCC carefully considered the submissions made, together with the evidence presented to it. The PCC also has regard to the advice of the Legally Qualified Chair that on disputed issues of fact, the onus of proof was on ARB and that the standard of proof was the civil standard of the balance of probabilities. In determining the facts, the PCC considered the evidence in the round and noted that it was entitled to draw reasonable inferences from established facts, but that it was not to speculate.

 

  1. The Committee then went on to consider each allegation in turn and it makes its findings of fact as follows:

 

  1. Particular 1 – the Registered Person did not provide adequate terms of engagement, contrary to standard 4.4 of the Architects Code – Proved

 

  1. The Committee finds the facts proved in relation to some, but not all, of the alleged deficiencies. The ARB Case Presenter conceded that the Registered Person’s terms of engagement did contain some provisions for the suspension of the agreement or the legal rights of cancellation. The relevant terms are set out at 11, 12 and 13 at page C10. The Panel also considered that the terms of engagement were adequate in relation to the existence of any alternative dispute resolution scheme. There is no requirement for such a scheme to be available and as the Registered Person offered no such scheme there was no requirement for the Registered Person to include reference to such a scheme in the terms of engagement.

 

  1. However, the Registered Person conceded that the terms of engagement did not include a statement confirming the existence of adequate professional indemnity insurance and there was no reference confirming that the Registered Person is registered with the ARB. The Panel also found that the terms of engagement did not include a reference informing a client that a complaints handling procedure was available upon request. Although not specifically alleged against the Registered Person, the Panel noted that there did not appear to be a complaints handling procedure beyond that contained and term 15 in that all complaints should be raised with the Registered Person(C10).

 

  1. The Panel concluded that these deficiencies in the terms of engagement breached standard 4.4.

 

  1. Particular 2 – the Registered Person issued an invoice on 12 January 2022 for additional fees of 500 pounds for work that had not been previously discussed with and or agreed by the client – Proved

 

  1. The Committee finds the facts proved. The Panel preferred the evidence of the Referrer and the Registered Person’s witness Julia Nolan in respect of the telephone conversation of the 1st November 2021. The Registered Person was not a party to this telephone conversation and had drawn an incorrect inference from the content of the telephone note prepared by Julia Nolan that was incorrect. The Registered Person was convinced that the reference to £500 on the handwritten note was an offer by the Referrer to pay £500 for additional work that had not been provided for in the original quotation.

 

  1. The Referrer was clear that this was not the case and had sent an e-mail to the Registered Person at the relevant time to clarify his position. Even the evidence of Julia Nolan, the Registered Persons personal assistant, confirmed that she would have written the figure because it is the sum referred to in Part B2 of the proposal and could not relate to an offer to pay fees not contained within the original proposal.

 

  1. The Panel concluded that the Registered Person held a genuine, but misguided, belief that the Referrer had offered to pay an extra £500 on 1 January 2021, but the overwhelming evidence from the parties to that conversation was that no such offer had ever been made. As such the invoice issued on 12th January 2022 for additional fees of £500 had not been agreed by the refer nor previously discussed with him.

 

  1. Particular 3 – the Registered Person did not provide the client in a timely manner with drawings and or evidence of expenses to which they were entitled.

 

    1. Drawings – The Committee does not find the facts proved.

 

  1. ARB had limited the time period of the delay in providing the drawings as between September 2022 and March 2023. This time frame corresponds with the period of time from the 27th September 2022 when an agreement had been reached to halt the civil proceedings on a drop hands basis to 27th March 2023 when the Referrer eventually received all of the drawings to his satisfaction.

 

  1. The Registered Persons evidence is that he had left these issues in the hands of his lawyers. The Panel found that the documentary evidence suggested that attempts were made to provide the drawings as soon as the civil proceedings had been concluded by agreement. The evidence of the Referrer confirmed that he was corresponding primarily with the lawyers and not the Registered Person at that time. Although it is possible that the Registered Person was reluctant to cooperate, there was no evidence of this. The available evidence was, in the view of the panel, inconclusive that the Registered Person was responsible for any delay within this period of time.

 

  1. a. Expenses – The Committee finds the facts proved.

 

  1. The Referrer was clear in his evidence both before the Panel and in the supporting documentation that he had queried the invoice from a very early stage. These queries have been repeated and, in respect of the £47.50 out of pocket expenses, remained outstanding and unexplained until shortly before the hearing. The Registered Person described the Referrers inquiries in relation to this some as trivial and a matter that did not require his attention. The Registered Person suggested that all the Referrer had to do was contact his office and the matter would have been clarified for him. In fact, the Referrer had contacted the Registered Person’s office and his queries remained unanswered.

 

  1. In the panel’s view this was a matter that could have been, and ought to have been, resolved soon after the invoice was first raised. The simplicity of this task was demonstrated by the Registered Person who was able, in a matter of minutes, to refer to his file and explain not only that the sum represented 86 miles travelled by his employees at 55 pence per mile but was also able to identify the three dates on which the travel took place and which employee had incurred the mileage expense.

 

  1. The Registered Person’s refusal to address this query represented an unreasonable delay and was not delivered in a timely manner as alleged.

 

  1. Particular 4 – the Registered Persons actions at particular 2 lacked integrity

 

  1. The Committee finds the facts proved. Although not alleged, the Panel makes it clear that there is no suggestion that the Registered Person acted dishonestly in relation to his conduct concerning particular 2. The Panel is satisfied that the Registered Person was convinced and held a genuine belief that he was entitled to claim £500 as extra work as he had interpreted the handwritten note of his colleague, Julia Nolan, made on the 1st November 2021, as confirming this belief.

 

  1. However, there were many opportunities for the Registered Person to abandon this misguided belief. The Referrer maintained throughout in clear and unambiguous terms that he made no such offer on 1st November 2021. Had the Registered Person checked with his personal assistant, Julia Nolan, as to the detail of that conversation she would have informed him, as she did the panel, that the reference to £500 must have referred to the fee set out at B2 of the original proposal and was not a promise to pay an amount towards additional work not covered in that proposal. The Registered Person did not take these opportunities to correct his mistaken belief. Instead, he redoubled his efforts to obtain payment of a further £500 to which he was not entitled.

 

  1. The letter the Registered Person sent to the Referrer dated 6 January 2021 made a clear and unequivocal offer that a payment of £3013.80 would be a “full and final settlement of this matter”. The Registered Persons evidence to the Panel was that he was still intending to pursue the £500 notwithstanding the content of this letter. In short, the Registered Person did not consider that the payment of £3013.80 would settle this matter as he intended to continue to pursue the £500.

 

  1. The Referrer, however, relied on this promise of settlement and paid £3013.80 within a few days in the expectation that the CAD drawings would be issued to him. Shortly after his funds had cleared, he received further correspondence from the Registered Person confirming that the matter remained in dispute over the £500 and that his drawings would not be forthcoming. The Referrer’s response was to describe the Registered Person’s conduct as “outrageous”. The Panel agrees.

 

  1. The Referrer ended the contract with the Registered Person in October 2021 and asked him to stop work.  They were then in dispute over the final amount due. In his letter of 6 January 2022 the Registered Person made a proposal which was clear and unambiguous.  If the Referrer paid in full the invoice enclosed with the letter, showing an outstanding balance of £3013.80, the Registered Person would release the CAD drawings.  The Referrer paid the full amount, but the Registered Person refused to release the drawings.  Whatever may have been in the Registered Person’s contemplation at that time about issuing another invoice for an additional £500 this was not stated in that letter.  Despite the Registered Person saying that he has consistently refused the Referrer’s settlement offer, it was in fact the Registered Person’s proposal for full and final settlement which the Referrer accepted and complied with.

 

  1. The Panel finds that the Registered Person had closed his eyes to the obvious impropriety of reneging on his offer to settle. The Panel is satisfied that this was due to the emotional turmoil that the dispute had created for him. However, at the relevant time he appears to have been unable to distinguish between what would be regarded by ordinary standards as proper conduct in respect of how he dealt with the Referrer regarding invoicing of the project.

 

  1. In conclusion the Committee finds the facts proved in relation to particulars 1, 2, 3 (in respect of the expenses only) and 4.

 

Decision on Unacceptable Professional Conduct (UPC)

 

  1. Having found particulars 1, 2, 3 (in respect of the expenses only) and 4 of the charge proved, the Committee went on to consider whether the Registered Person’s conduct amounted to UPC.

 

  1. The Committee heard submissions from Mr Foxsmith on behalf of ARB and from the Registered Person.

 

  1. The Committee accepted the advice of the Legally Qualified Chair.

 

  1. The Committee reminded itself that a finding of UPC is a matter for its own independent judgment having regard to any facts found proved. There is no burden or standard of proof.

 

  1. The Committee noted that UPC is defined in section 14(1)(a) of the Architects Act 1997 as conduct which falls short of the standard required of an Architect.

 

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

 

  1. In the Registered Person’s case, the charge relates to matters that occurred in 2021 and 2022. Therefore, the standards required to be followed by the Registered Person are contained in The Architects Code: Standards of Conduct and Practice 2017.

 

  1. The Committee recognised that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect.

 

  1. The Committee had regard to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and noted that for a finding of UPC to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of   opprobrium to the ordinary intelligent citizen” is required.

 

  1. The Committee also recognised that any failing must be serious. Vranicki v Architects Registration Board [2007] EWHC 506 (Admin).

 

  1. In the Committee’s view, the Registered Person’s actions as set out in the factual particulars found proved breached the following standards expected of a registered Architect:

 

 

Standard 1

              Honesty and Integrity

 

              1.1 You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.

 

Standard 4

              Competent Management of your Business

 

  • You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers (inter alia):
  • A statement that you have adequate and appropriate insurance cover as specified by ARB
  • that you have a complaints handling procedure available on request
  • that you are registered with the Architects Registration Board and that you are subject to this Code

 

Standard 6

You should carry out your professional work conscientiously and with due regard to relevant technical and professional standards

 

6.2 You should carry out your professional work without undo delay and, so far as is reasonably practicable, in accordance with any time scale and cost limits agreed with your client.

 

6.3 You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.

  1. The findings of fact in relation to particulars 2 and 4 clearly breach Standard 1.1. The Panel considered that another member of the profession or a member of the public would regard the Registered Person’s failure to act with integrity, in breach of standard 1.1, as a serious failing that falls far short of the standard expected of a registered architect. The Code makes clear that integrity underpins the other Standards contained in the Code. In the Committee’s view, members of the public must be able to rely upon a Registered Architect to behave with integrity.

 

  1. The breach of Standard 4.4 is also serious. The requirement to provide adequate terms of engagement is not simply an administrative burden but is the route by which members of the public are made aware of their rights under the contract. In this case the Registered Person used terms that were deficient. Most seriously that there was no reference to registration with ARB, insurance cover or any adequate complaints handling procedure. In the context of the failure of the Registered Person to handle the Referrer’s complaint adequately, this omission is all the more serious.

 

  1. The breach of Standards 6.2 and 6.3 relates only to the delays caused by the Registered Person in accordance with the facts found proved in respect of particular 3 in that he did not explain the £47.50 expenses in a timely manner, or at all. The Panel does not find that this breach is so serious that it amounts to UPC in itself.

 

  1. For the reasons set out above, the Panel found the Respondent guilty of UPC in respect of the breaches of Standards 1.1 and 4.4 both individually and cumulatively.

 

Decision on Sanction

 

  1. Having found the Registered Person’s actions amounted to unacceptable professional conduct (UPC) the Panel then went on to consider what, if any, sanction to impose in this case.

 

  1. The Panel accepted the guidance of the legally qualified chair and considered the following case law; Fuglers & Others v Solicitors Regulation Authority [2014] EWHC 179, Rashid and the General Medical Council 2006 EWHC 886 (Admin), Sawati v General Medical Council [2022] EWHC 283 (Admin), Nicholas-Pillai v GMC (2009) EWHC 1048 (Admin), Naguib v GMC (2011) EWHC 366 (Admin), Vaghela v GMC (2013) EWHC 1594 (Admin)

 

  1. The Panel took careful note of the ARB sanctions guidance 2022.

 

  1. The Panel considered the following aggravating factors applied in this case.

 

  1. The Registered Person has not acknowledged his failings. Throughout the course of the hearing, and after the findings of fact and UPC, he maintained that he had done no wrong save for the deficiencies in his terms of engagement.

 

  1. The Registered Person failed to take remedial steps save in relation to his terms of engagement.

 

  1. A lack of insight or remorse was evident throughout this hearing and throughout the entirety of this matter. The Registered Person demonstrated a persistent refusal to correct his misguided belief in his entitlement to the extra £500 when it ought to have been obvious he was wrong.

 

  1. The lack of insight was compounded by the manner in which the Registered Person conducted himself during the hearing especially in relation to his comments regarding the Referrer. He presented his case on the basis that the Referrer was manoeuvring, nitpicking, ungrateful and demonstrating all the hallmarks of a vendetta designed to avoid payment in part or in full. He went on to impugn the Referrer’s character, honesty and truthfulness. All of these accusations were baseless, unsupported and wholly unjustified. The Panel found the Referrer to be credible and straightforward when giving his evidence and measured, composed and restrained in the face of this attack upon him.

 

  1. The Panel considered the following mitigating factors applied in this case.

 

  1. The conduct represented an isolated failing of brief duration in an otherwise long and unblemished career.

 

PRIVATE – TO BE REDACTED FROM PUBLISHED DOCUMENT

 

  1. [REDACTED]

 

  1. The Panel found limited evidence of remedial action taken to prevent repetition. Such evidence was restricted to the amendments that he has subsequently made to his terms of engagement.

 

  1. The Panel acknowledges that the Registered Person is of hitherto exemplary character with no regulatory findings against him. We also noted the character references that speak to his good work and conduct. This evidence provides support for finding that this is an isolated matter.

 

  1. The Panel carefully considered paragraph 5.8 of the ARB Sanctions Guidance. The Panel acknowledged the apology of the Registered Person directed towards the Referrer contained within his submissions on mitigation. However, it is also clear that the Registered Person has yet to fully understand his failings or fully accept the findings of this Panel.

 

  1. The Panel finds the seriousness of this matter is at a moderate level, not at a low level that might apply if the only finding of UPC was the breach of standard 4.4, but also not the very highest level of seriousness that might follow a finding of dishonesty.

 

  1. Imposing no sanction would not be appropriate and would fail to adequately mark the seriousness of the failings especially the finding of a lack of integrity. The Panel therefore considered each available sanction in order from the least to the most serious.

 

  1. A Reprimand may be used in relation to offences which fall at the lower end of the scale of seriousness. This matter is not at the lower end of the scale. Further, the conduct did seriously affect his client, there is no insight or remorse demonstrated and his actions were deliberate. The Panel concluded that if we were dealing only with Particular 1, the finding of a breach of standard 4.4, that a reprimand would have been a sufficient sanction. However, the findings of UPC in relation to particulars 2 and 4, notably a lack of integrity, are too serious for this to be a sufficient sanction.

 

  1. A Penalty Order is suitable for cases not at the lower end of the scale of seriousness that would otherwise receive a reprimand and so could apply to cases that are assessed as being of moderate seriousness. The Panel concludes that the Registered Person demonstrated no insight at all in relation to the findings of a lack of integrity. The only insight was in relation to the deficiencies in the terms of engagement.

 

  1. The unusual aspect of this case is that the Registered Person’s lack of insight can be traced back to the very beginning of the events that resulted in the case being brought. This adherence to his misguided belief appears to be specific to this case and this client and not pervading his practice generally. There is no evidence of a pattern of misconduct, but a real risk that the conduct could reoccur should a similar scenario present itself to the Registered Person again.

 

  1. A Suspension Order may be imposed by the Panel for serious offences, but where the circumstances are not so serious as to warrant erasure from the Register. Given the undoubted pride and affection the Registered Person holds for his status as an architect, the Panel accepts that this sanction would have a particularly serious impact upon him.

 

  1. The Panel considered the factors that would be relevant to this sanction. We did not find that his conduct was fundamentally incompatible with continuing to be an architect and did not find that there was evidence of entrenched integrity issues. The Panel considered that this was an isolated event that should be viewed against a background of many years of unblemished professional practise. However, the Panel considers that there is a lack of sufficient insight or remorse. The apologies presented by the Registered Person were very late and qualified with no clear and unequivocal acceptance that he had done anything wrong.

 

  1. In the absence of sufficient insight, the Panel cannot be satisfied that the behaviour is unlikely to be repeated although the specific circumstances that might bring about a reoccurrence would be unlikely in themselves.

 

  1. The important question for the Panel is whether the conduct is so serious that a penalty order would be insufficient to protect the public or uphold public confidence in the profession such that a suspension order is required and is proportionate. This is a matter for the judgement of the Panel.

 

  1. The decision of the Panel is to impose a penalty order in the sum of £2500 being the maximum available. In deciding not to impose a suspension order the Panel was particularly mindful of the impact such an order would make upon the Registered Person in light of his long-standing relationship with the architecture profession and his unblemished record.

 

  1. The Panel, having heard representations from the Registered Person on his ability to pay, agreed staged payments of £250 per month over 10 months with the first payment to be made on 29 October 2023.