Mr Jamie Falla

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

JAMIE FALLA (061975B)

Held on

8-26 April 2024 and 15-18 July 2024

At

National Council for Voluntary Organisations (NCVO)

Regents Wharf, 8 All Saints St,

London N1 9RL

and

Architect’s Registration Board

8 Weymouth Street

London, W1W 5BU

and

General Dental Council

37 Wimpole St

London W1G 8DQ

_______________

Present:

Margaret Obi (Chair)
Robert Dearman (PCC Architect Member)
Rachel Childs (PCC Lay Member)

_______________

 

The Architects Registration Board (“the ARB”) was represented by Mr Jean-Jack Chalmers (“the Presenter”), instructed by Kingsley Napley LLP. Mr Jamie Falla (“the Registered Person”) attended the hearing and was represented by Mr Roger Shrimplin, who is an Architect. Mr Shrimplin was granted permission to represent the Registered Person at a Case Management Meeting which took place on 22 January 2024.

Allegation

1. The Registered Person faced the following Allegation:

 

1. The Registered Person failed to issue adequate terms of engagement at the outset of the project.
2. The Registered Person failed to act without undue delay.
3. The Registered Person failed to act with due skill and care.
4. The Registered Person entered into an agreement that prevented his client from raising concerns with ARB.
5. The Registered Person’s actions at (4) were dishonest and/or lacked integrity.

 

Background

2. The Registered Person is a registered Architect.

3. The background circumstances, as set out below, are based on the report prepared by Kingsley Napley. The Presenter relied on this report during his opening of the case.

 

 

The Property

4. The Referrer wanted to build a house in which he could retire and live in his later years. He sought to obtain a sea-facing location for a property in Guernsey. In 2013 he looked at several possibilities before settling on a property that had earlier been owned by one of his friends. At the time of the purchase the property was known as Sea Lodge. In June 2018, it was renamed Lighthouse (“the Property”). The intention was to create a minimalist property which was architecturally “sharp” in its design.

 

 

Instruction of the Registered Person

5. The Registered Person was known to the Referrer before this project in a professional capacity. The Referrer had previously approached and engaged the Registered Person in June 2007, in respect of work he had done at a separate property in Guernsey.

6. The Registered Person went with the Referrer to visit the Property on 4 September 2013. The Registered Person began to prepare initial sketches and designs. He emailed the Referrer on 7 September 2013 to advise that the initial plans were coming together well.

7. It had originally been envisaged by the Referrer that the Registered person would work together in partnership with Mark Mallindine, a UK-based architect. The Referrer stated that Mr Mallindine ultimately played a peripheral role in the project, concentrating on a number of specific design packages.

8. The project was a high value project, with the Registered Person’s fees initially being proposed at £80,000 and then £400 a day for project management. The estimated build cost was £2 million. Costs have since increased to over £11 million on the construction, excluding professional fees. Issues arose about fees almost immediately and there was extensive correspondence on this issue. Variations to the fee proposal were verbally agreed. The Registered Person then sent a RIBA standard contract. The Referrer stated that he never received a letter of engagement.

9. The Referrer chose to engage local building contractors RG Falla (unrelated to the Registered Person) to assist with the project. Their instruction was not straightforward, but it was eventually agreed that they would work on a cost-plus basis rather than a fixed price.

10. Numerous issues regarding the Registered Person’s fees persisted over the first few years of the project. Fees became a significant issue in 2017, when the Registered Person’s fee increased to approximately £218,000. It appears that the relationship between the Registered Person and the Referrer was, by this stage, very strained. The relationship appears to have completely broken down in September 2017. The Referrer stated that the Registered Person caused a project manager, appointed in 2017, to “throw in the towel” and the Registered Person’s work had constant shortcomings. However, work continued into late 2018. The Referrer requested the Registered Person’s complaints procedure in November 2018. He then submitted the first of several formal complaints.

11. Delays arose with the project and with the Registered Person’s contract administration. The Referrer stated that he had to repeatedly chase the Registered Person in respect of the provision of documents and the completion of tasks. The Referrer submitted a further formal complaint in April 2019 relating to these delays. A third formal complaint was submitted in June 2019 in relation to an issue about non-submission to the planning department of the local authority regarding revised landscaping drawings previously provided in 2017. A fourth formal complaint was made in August 2019 in relation to the design of a door. A fifth formal complaint was made on 8 October 2019 relating to non-attendance at a site meeting. Further formal complaints were submitted through until November 2021.

12. A number of issues with the design of the Property became apparent once the Referrer had taken up occupation. The Referrer took steps to initiate a legal claim which resulted in a settlement agreement dated 8 August 2019. A confidentiality clause in the settlement agreement prohibited either party from disclosing information regarding the complaints which had given rise to the settlement to any third party. It appears that the parties continued to work together until March 2022.

13. Further issues subsequently came to light which became the subject of further legal proceedings. The Referrer obtained a report from an expert Quantity Surveyor which identified a number of issues with the Property, with estimated remedial works expected to cost in the region of £800,000.

14. In June 2021, the ARB received a complaint from Dawn Wilcox, Director of O&M IT, who were approached by the Referrer in 2018 to produce an operations and maintenance manual (‘the O&M Manual’) for the construction of the Property. Dawn Wilcox engaged in correspondence with the Registered Person and found him to be confrontational and non-productive. She explained, in her witness statement, that he failed to respond to requests for information and this had an impact on her ability to complete the O&M Manual. She also referred to the financial impact on her business.

15. In November 2021, it is alleged that the Registered Person sought to stop the Referrer from providing information to the ARB, asserting that to do so would be a breach of the settlement agreement of August 2019.

16. The Property remains unfinished to date.

 

Registered Person’s Response

17. The Registered Person provided representations to the ARB dated 9 January 2022 and further representations dated 10 March 2022. He also provided written representations dated 3 April 2024.

18. In his initial response the Registered Person stated that he acted professionally throughout the project. He stated that the complaint was not justified, and the Referrer was the only person he had ever received a complaint from in 25 years. He also referred to an occasion when the Referrer threatened to throw him off a second-floor balcony. In respect of the terms of engagement, he stated the Referrer declined to sign the agreement which was sent to him. He stated that the delays were not due to his practice. He expressed the view that the problems were caused by the complexity of the project and the Referrer’s reluctance to follow the regulations.

19. In his further representations, the Registered Person stated that the Referrer’s main aim was to discredit him and cut him off from his livelihood. The Registered Person refuted the allegations. He stated that the initial terms and conditions were issued on 9 September 2013 and then later fee proposals were issued. He stated that the Referrer refused to sign the RIBA appointment. In the Registered Person’s most recent representations he explained that, in agreeing the terms and conditions for the Sealodge project, he relied on the terms of a previous contract he had agreed with the Referrer in relation to an office development.

20. In respect of delay, the Registered Person stated he always acted as quickly as possible and endeavoured to be efficient. He said that the Referrer repeatedly called the Registered Person, was effectively unhappy if he was taking any trip away, and made many changes to the approved plans throughout the project. The Registered Person stated that during the last two years, it was difficult for him to visit Guernsey due to the COVID lockdowns, and he no longer lives there so he was unable to attend the island. He stated that the Referrer made a number of important decisions without him and was manipulating the situation. He stated that Dawn Wilcox’s complaint is unfair because the house is unfinished and so the O&M Manual remains unfinished.

21. In his most recent representations, the Registered Person stated that delays to the project timeline were the result of a combination of factors. He identified multiple alleged delays caused by Mr Mallindine’s workstreams which impacted on the overall timelines of the project. He also re-emphasised that the Referrer’s approach to the project caused difficulty, firstly in terms of his indecision and inaction at critical points, secondly through his focus on cost cutting and, finally, in the conflict he caused between contractors.

22. In terms of drawings, the Registered Person stated that all drawings were clearly coordinated between consultants from the outset, but the Referrer attempted to cloud and confuse the matter to discredit him.

23. The Registered Person stated that the Referrer has taken a vexatious approach. He stated that after the settlement agreement, the Referrer immediately commenced a second legal claim, which was unsuccessful.

24. The Registered Person stated that he obtained legal advice on the settlement agreement and was forced to accept the agreement otherwise he would have had to go to court, which would have been extremely costly. He stated that he was surprised to receive a letter from the ARB regarding the agreement. He received advice that the settlement agreement should be set aside if both parties agreed. He stated that he agreed the Referrer could pursue his formal complaint.

 

Admissions

25. The Registered Person did not make any admissions. He denied the Allegation in its entirety at the outset of the hearing.

 

 

Evidence

26. The Committee took into account the documentary evidence contained within the hearing bundle which included:

I. Report to ARB prepared by Kingsley Napley
II. Witness Statements of the Referrer dated 7 September 2022 and 9 August 2023
III. Witness Statement of Dawn Wilcox dated 19 October 2022
IV. Inquirer’s Report (Robert Morrissey) dated 26 June 2023 and his supplementary notes dated 5 April 2024
V. Various email correspondence
VI. Registered Person’s representations
VII. Registered Person’s Further Representations
VIII. Registered Person’s Drawings and Photographs

27. The Committee heard oral evidence from the ARB’s witnesses – the Referrer and the Inquirer – Mr Robert Morrisey. The Committee also heard oral evidence from the Registered Person. The Referrer originally gave evidence on Day 2 and Day 3 of the hearing. He was subsequently recalled by the Committee on Day 13.

 

 

Decision on Facts

The Committee’s Approach

28. The Legally Qualified Chair (LQC) advised the Committee that the burden of proof lies with the ARB and the standard of proof is on the balance of probabilities. The Registered Person did not have to prove or disprove anything. The LQC advised that where the allegation refers to a ‘failure’ the ARB must first prove that the Registered Person had a duty to do something, and secondly, that it was not done. If the Committee determines that there was a duty to do something, which was not done, it should go on to consider if there is any evidence that this was for good reason.
29. The Committee was advised on the test for dishonesty as set out in Ivey and Genting Casinos (UK) Ltd [2017] UK SC 67; the Committee should ascertain the actual state of the Registered Person’s knowledge or belief as to the facts and then determine whether his conduct would be considered dishonest by the ordinary standards of reasonable and honest people. The Committee was also advised on the meaning of a lack of integrity; it expresses the higher standards expected from professional persons and which the professions expect from their own members.

30. The LQC further advised that having given the Inquirer’s evidence careful consideration, which would include an assessment of his expertise, conclusions, and the quality of the analysis which informed his opinions, the Committee may accept his evidence in whole or in part.

31. The Committee was not required to address every point that was made; only such matters as enabled it to conclude whether the facts under consideration had been proved.

 

Findings of Fact

Particular 1 – Found Proved
“…failed to issue adequate terms of engagement at the outset of the project.”

32. The Committee noted that there was no dispute between the parties that the Registered Person had a professional obligation to provide the Referrer with written terms of engagement. Standard 4.4 of the Code states that an Architect is expected to ensure that they enter into a written agreement with the client which adequately covers a range of matters. The matters are listed in Standard 4.4 and include: (i) the scope of the work; (ii) the fee or method of calculating it; (iii) any constraints or limitations on the responsibilities of the parties; and (iv) the existence of a complaints handling procedure which is available on request.

33. The Referrer stated in his witness statement and confirmed during his oral evidence that he did not receive any formal terms of engagement or any contract from the Registered Person in respect of the project. The oral evidence of the Referrer was clear and consistent with his witness statement. It was also consistent with the documentary evidence, in that there were various disputes between the Referrer and the Registered Person which were reflected in a number of email exchanges but at no time was any reference made to any terms of engagement.

34. The Registered Person, in his initial response to this particular allegation, stated that RIBA terms of engagement were provided to the Referrer at the outset of the project in September 2013. The terms of engagement were said to have been sent to the Referrer “at his home and via email.” The Registered Person stated that the terms of engagement were sent again 8 months later once the outline of the scope of works had been agreed. According to the Registered Person, the Referrer declined to sign the terms of engagement on both occasions. However, shortly before the hearing the Registered Person submitted a further response in which he stated that there had been a previous agreement between himself and the Referrer in respect of work to the Referrer’s business premises. The Registered Person stated that the Referrer knew that the terms of engagement for the Property were the same as those for the office project and therefore, there was no need to enter into another agreement. During his oral evidence, the Registered Person stated that he provided the Referrer with a terms of engagement letter by hand at a meeting that took place in September 2013. The letter of engagement was produced just before the hearing. The letter of engagement was different from the RIBA terms of engagement provided some seven months later. During cross-examination, the Registered Person, stated that in his initial response, he was referring to a coloured spreadsheet and appeared to suggest that this document constituted adequate terms of engagement. When challenged about the content of the letter of engagement (which did not refer to the swimming pool which was a key feature form the outset of the project), the Registered Person stated that it was a “draft.”

35. The Committee concluded that the Registered Person had provided at least three different versions of events with regard to the terms of engagement. His evidence was unsatisfactory as no coherent explanation was provided for the various inconsistencies. Furthermore, there was no documentary evidence before the Committee to support the Registered Person’s assertion that terms of engagement had been provided to the Referrer “at his home and via email.” Nor was there any evidence to support his account that the terms of engagement were provided to the Referrer by hand. On the contrary, the extensive correspondence in the hearing bundle disclosed initial communication about the brief and a fee proposal on 9 September 2013. The fee proposal describes work stages relating to the RIBA Plan of Work (pre 2010 version) and a full service for the project from Appraisal to Post Completion of the new building. However, there is no reference in any of the email correspondence to the RIBA Standard, any other conditions of engagement or to any agreement based on the matters referred to in Standard 4.4 of the Code. Furthermore, the Committee concluded that even if the documents the Registered Person disclosed had been provided to the Referrer, they would not constitute valid terms of engagement because they do not fully address the matters required by Standard 4.4 and were not signed by the parties. For example, the spreadsheet does not clearly set out who the contracting parties are; their responsibilities; the constraints; there is no detail regarding insurance and no reference to the Registered Person’s complaints handling procedure. The Committee also concluded that the Registered Person’s assertion that the Property project had been carried over from the office project was not credible. The Registered Person was working on a high end, complex building on a challenging site. It is neither reasonable nor plausible for such work to be undertaken without clear terms of engagement. In any event, if the proposal extended the agreement relating to the office project that should have been set out in clear terms. It was not.

36. In these circumstances, the Committee had no hesitation in concluding that the Registered Person failed to enter into an adequate agreement at the outset of the project. The uncertainty and disagreement which ensued for several years regarding what was within the scope of the project, the method for calculating the fees and the Registered Person’s responsibilities were precisely because there was no adequate agreement in place.

37. For these reasons, Particular 1 was found proved.

 

 

Particular 2 – Found Proved
“The Registered Person failed to act without undue delay.”

38. The Registered Person’s failure to act without undue delay relates to three specific issues: (i) the planning application; (ii) the Operations and Maintenance Manual (‘the Manual’); (ii) missed deadlines.

39. Work on the project commenced in or around September 2013. The email correspondence indicates that the Registered Person initially expected the Property to be completed within approximately two years. The planning application was submitted on 11 July 2014, registered on 22 August 2014, and approval was granted in December 2014. The Committee noted that there are numerous emails between the Referrer and the Registered Person relating to their dispute with regard to fees. However, there are few emails specifically related to the original application for planning permission. Even when planning permission is mentioned in correspondence (for example, in emails dated 27 March 2014 and 17 May 2014) it is in the context of the fees that had been paid or were due to be paid. The Committee was mindful that the project involved a complicated building on a sensitive site and that it had been necessary to have a number of pre-application meetings to assuage the concerns of the Referrer’s neighbours. In these circumstances, although the application for planning permission was delayed, the Committee was unable to conclude that this amounted to undue delay. This was because it was unclear to what extent it was the complexity of the design and its location which contributed to the delay as opposed to failings that could be directly attributed to the Registered Person.

40. The as-built drawings were sought from the Registered Person for inclusion in the O&M Manual. The Registered Person suggested during his oral evidence that it was either impossible or unreasonable for him to provide certain information for the O&M Manual. The Committee noted that ‘as-built’ means the drawings relating to the Property as built by the contractors. At the time of the fact-finding stage of the hearing the remedial works and completion of the Property was not due to be finalised until 2025. Therefore, the Committee acknowledged that the ‘as-built’ drawings could not be provided until the Property was completed and to date this has not yet happened. As a consequence, the absence of certain drawings did not delay the production of the O&M Manual. However, the Committee accepted the evidence of Mr Morrissey on this issue. His evidence was fair and balanced. Mr Morrissey stated that there were some as-built drawings, that could not be provided. For example, those that relied upon the cladding information given that the cladding had not been completed. But not all the drawings, or even the majority of the drawings, were dependent on the cladding information. Mr Morrissey expressed the opinion that it would have been unreasonable to expect those drawings to be provided but there were other as-built drawings and other documents that should have been provided, such as the Registered Person’s sketches. The Committee accepted the evidence of Mr Morrissey that the Registered Person did not need to wait for the cladding information before completing the sketches.

41. The Committee acknowledged that it was the Registered Person’s preference to complete the sketches at the end of the project. However, this was not communicated to the Referrer or Dawn Wilcox. Timescales were set for provision of the documents, and these were repeatedly not met without explanation. The site notes record that the Registered Person was to provide as-built drawings for the O&M Manual and he was chased for this information by Dawn Wilcox on a monthly basis. To the extent that the Registered Person suggested that there was some understanding or agreement that these documents would not be provided until the end was rejected by the Committee. The Committee concluded that there were documents that the Registered Person could have provided and his failure to do so contributed to the delays. In these circumstances, the Committee concluded that the Registered Person’s lack of communication amounted to undue delay.

42. A similar picture emerged in relation to information and actions requested by the Referrer. The Committee acknowledged that the Registered Person and the Referrer appeared to be working to different timescales. As the Architect, the Registered Person appeared to be following the ‘critical path’ towards completion of the project, but the Referrer stated during his evidence that he was unaware of the document which set this out. The contemporaneous documents revealed that the Registered Person would repeatedly provide assurances, promises or expectations that a requested deadline would be met, but ultimately it would not be. For example, on 14 June 2017, the Referrer sent the Registered Person a detailed chronology which set out the dates when deadlines were set, missed, and chased. The Committee accepted the evidence of Mr Morrissey that the Referrer was making reasonable requests, and that good practice required the Registered Person to realistically assess and plan the work and set specific target dates for each item. As there were a large number of contractors and sub-contractors, there were likely to be delays from time to time but where this occurred, the Registered Person should have taken steps to mitigate these delays and warn the interested parties of the reason and effect of such delays.

43. In the Committee’s view, one of the main difficulties that arose was the failure of the Registered Person to take on the central project management leadership role for the build. At the outset of the project, the Registered Person signalled his reluctance to take on this co-ordinating role, stating “I am not nor is Mark a project manager. We are your architects. We have not been appointed as project managers.” However, the Referrer responded “…I disagree. I expect my architects to coordinate and oversees (sic) the contractors and the consultancy team. That is what I would expect.” This disagreement regarding the nature of the Registered Person’s appointment was never satisfactorily resolved and, in the Committee’s view, led to confusion and a vacuum at the centre of the project. This was partly filled, at different times, by the Referrer, the main contractor and, at times, reluctantly, by the Registered Person himself and, inevitably, led to delays due to poor communication and leadership of different workstreams. The Committee considered that the Registered Person’s failure to properly define his role at outset and agree this with his client led to delays in the project timeline.

44. The Committee took the view that the Referrer was an exacting client with a robust management style. He had a very good understanding of managing timelines in a project but if he made requests that were not deliverable within the timescale he set, or at all, the Registered Person had a duty to explain why. On too many occasions he did not do so, and this led to undue delays.

45. For these reasons, Particular 2 was found proved.

46. The Registered Person failed to attend two consecutive site meetings on 24 May 2019 and 21 June 2019. In each case no apology was given, no deputy was sent, and no report was provided. The Committee accepted the evidence of Mr Morrissey that it is normal practice for the architect to attend all site meetings, particularly where the architect is acting in the capacity of the Contract Administrator or similar and when they are unable to attend, a deputy should be sent. However, the Committee was mindful that the allegation related to undue delay. There was no evidence before the Committee that the Registered Person’s non-attendance had the effect of causing undue delay to the project or any aspect of it. Therefore, this aspect of the ARB’s case did not form part of the Committee’s finding in respect of Particular 2.

 

 

Particular 3 – Found Proved
“The Registered Person failed to act with due skill and care”

47. A number of issues were identified with the Property. The ARB submitted that these issues amounted to failings to act with due skill and care. The ARB relied on the evidence of Mr. Morrissey who identified both minor failings and serious failings. He explained that according to his calibration even minor failings were occasions when the acts or omissions of the Registered Person fell below the standard of a reasonable architect. He distinguished failings from mistakes which any reasonable architect could make. The Committee noted that he was willing to make appropriate concessions. For example, Mr Morrissey changed his opinion with regard to the asymmetry in the glass bridge. He took the view that the lack of symmetry from the main vantage point was a mistake but accepted that it was an error that could have been made by any reasonable architect.

48. The Committee found Mr Morrissey’s evidence to be thorough and helpful in assessing the nature and scope of the alleged failings. However, the Committee did not accept the entirety of his opinion evidence. For example, the Committee did not accept that the following were failings: (i) the absence of a water point on the north terrace; (ii) the absence of builders holes in the concrete frame; (iii) the problem with the service roof upstands; (iv) the incorrectly detailed cladding for the LED’s and weep holes; and (v) the absence of a power socket in the massage room.

49. The Committee noted that the water point on the north terrace was a clear instruction but concluded that this was a simple error that could have been made on any large-scale building project and was easily rectified. The Committee noted that builder’s holes were included in the original designs. However, there were changes to the design that resulted in additional cabling requirements. It was unclear to the Committee whether these design changes were due to failings by the Registered Person. With regard to the service roof upstands the history and evolution of the solar panels on the roof was equally opaque. The Committee was unable to ascertain what had initially been specified, what was changed and who authorised those changes. The lighting designer incorporated LED strip lights in the cladding soffits and overhangs. The LED strip lights took up all the space and did not leave any room to allow water to drain out which resulted in orange rust staining, fungus growth, and the corrosion of the frames of the strip lights. The Committee concluded that insufficient evidence had been adduced upon which it could infer that the issue was due to inadequate drawings by the Registered Person as opposed to the installation by the lighting contractor. The Committee noted that the Registered Person was instructed to install a power socket in the massage room. This was not done. The Committee concluded that this was a simple error that could have been made on any large-scale building project and was easily rectified.

50. The Committee concluded that the ARB had not established that the errors referred to above demonstrate that the Registered Person failed to act with due care and skill.

51. The Committee considered the other matters, identified by Mr Morrissey as failings, and concluded that these demonstrated a failure to act with due skill and care. These failings are set out below.

 

An absence of solar gain coating to external glazing

52. On 22 March 2016, a report was obtained from IBT, a glazing specialist. The report states: “It is strongly recommended that the specification is enhanced to require the use of solar control coating on the glass instead of a low E coating.” It was suggested that a coating known as SN71 was used. On 23 March 2016, the Referrer asked the Registered Person to obtain written assurances regarding the likelihood of overheating and, in the absence of such assurances to consider a mild solar control coating. On 24 March 2016, the Registered Person advised against the coating as the Property was well ventilated and had air conditioning. Finepoint (one of the subcontractors) also suggested in an email, dated 26 March 2016, that the solar gain coating may not be required on the understanding that the structure was well-ventilated and air conditioned.

53. The windows were installed without an adequate solar gain coating. The Property was not equipped with air conditioning in many of the rooms and some of the windows had restricted openings. Furthermore, there is no record of the Registered Person having sought to obtain written assurances as requested. This caused overheating of the Property, discomfort to the Referrer and damage to furnishings.

54. The Committee noted the Registered Person’s view that the difficulties with overheating at the Property were caused by the Referrer’s refusal to use the designed passive measures to ventilate the Property as intended. In his words, the Referrer wanted to live in a “sealed box”. The Committee reviewed the contemporaneous documentation and could find no mention of passive house technology in the early days of the project build. It was therefore of the view that this aspect of the build had either not been envisaged at the outset, or had not been communicated with sufficient clarity to the Referrer. The Referrer was clear that no discussion about any such measures ever took place. In any event, the Referrer was left with a property that he could not use as he wished. If he used the ventilation methods suggested by the Registered Person it impacted on his enjoyment of the Property, as air passing through the Property caused disruption; for example, by blowing papers off his desk in his study.

55. It was the Registered Person’s duty to design a building which did not overheat when in normal everyday use by the Referrer. The Committee accepted the evidence of Mr Morrissey that a reasonable architect would have recognised the potential for overheating due to solar gain and would provide clear advice to the client having consulted with appropriate ventilation and air conditioning experts. The Registered Person failed to do so. The Committee concluded that the Registered Person’s decision not to have solar protection within the glass was a failing which fell far below the standard expected of a reasonable architect.

 

An absence of a double layer of plasterboard on ceilings

56. The Referrer instructed the Registered Person by email on 30 March 2016 that a double layer of plasterboard should be specified on the ceilings. The Registered Person failed to act on the Referrer’s instructions and the majority of ceilings were single boarded.

57. The Registered Person asserted that the Referrer was always aware that some of the ceilings were single boarded as it was clear from the drawings and he had been on site throughout construction. He further added that there was no specific reason why all the ceilings should be double boarded.

58. The Committee did not consider it reasonable that the Referrer should have to deduce from reviewing paperwork and checking the build that his instruction had been followed. Given that it was an explicit instruction to the Registered Person, it should have been acted upon, or the reason for the change explained.

59. The Committee accepted the evidence of Mr Morrissey that although the failing by the Registered Person is not in itself a serious failing, the actions and attitude of the Registered Person to communications and the management of client instructions was poor and his actions fell below the standard expected of a reasonable architect.

 

Skyroom visibility of solar panels

60. Four additional solar panels were mounted on the roof of the Skyroom. These solar panels are visible from the lawn and detract from the clean lines of the house. The Referrer stated in his witness statement that the Registered Person did not warn him about the aesthetic effect of the additional solar panels.

61. The Registered Person explained that the decision to change the number of solar panels was one taken by the Referrer and not him. He stated that the Referrer failed to appreciate the impact of his decision on the aesthetics of the Skyroom. He further explained that he had attempted to improve the situation by providing options such as screens to obscure the solar panels from view.

62. The Committee accepted the evidence of Mr Morrissey that it would be reasonable for an architect to anticipate this issue and warn the client. Whether or not the Registered Person failed to recognise this issue at the design and construction stage, he certainly neglected to take reasonable steps to bring this issue to the attention of the Referrer. The Committee concluded that the Registered Person’s omissions amounted to a failing that fell below the standard expected of a reasonable architect.

 

Standing water within gutters

 

63. The Registered Person was informed by the Referrer in April 2016 that he did not want and would not accept standing water. However, the Registered Person subsequently confirmed with a subcontractor, Polyroof, that they should proceed with their design for a flat gutter rather than the inclusion of falls. As a result, the gutter on the services roof was installed in such a way as to result in standing water.

64. The Committee accepted the evidence of Mr Morrissey that a reasonable architect would have responded effectively to the request of his client (and the warnings of others), to revise the layout to ensure the entire roof was laid to falls. The extent of the standing water in the gutters is appreciable. Furthermore, apart from being unsightly, it may attract insects in warmer weather. The Registered Person actions were not a serious failing but fell below the standard expected of a reasonable architect.

 

Height of Tesla Powerwalls

 

65. The Registered Person and the Referrer agreed that the Tesla Powerwalls would be fitted one metre above ground level. The Registered Person subsequently instructed the contractor to install the Powerwalls 2.2 metres above the ground, which placed them out of reach. The Registered Person provided the Committee with a drawing which supported his assertion that the intention was to construct a walkway. If the walkway had been built the Powerwalls would have been in the correct position. The Referrer denied that this had ever been a proposal.

66. The Committee concluded that, even if this had been proposed, there was no evidence that it had been agreed. In these circumstances, the Committee accepted the evidence of Mr Morrissey who concluded that a reasonable architect would have given instructions for the Powerwalls to be located closer to the ground where access would not require any platform. However, the Registered Person failed to arrange for a readily accessible position for the Powerwalls. Although the Registered Person’s failing was not serious, his actions fell below the standard expected of a reasonable architect.

 

Wire balustrades

 

67. In June 2018, the Registered Person and the Referrer exchanged emails regarding the perimeter wire balustrades. The Registered Person gave the impression that he was discussing balustrade requirements with Building Control, and he subsequently issued the balustrade post and horizontal cable design. The Referrer assumed that approval had been obtained from Building Control. On 6 August 2020, Building Control advised that they would not approve the balustrade posts with horizontal cables as they were deemed to be climbable. The Building Control officer confirmed that neither he nor his manager has any recollection of discussing and approving the balustrade design with the Registered Person in 2018.

68. The Committee accepted the evidence of Mr Morrissey that a reasonable architect would have been aware that Building Control would not normally accept climbable balustrades. This issue should have been discussed with Building Control, and the outcome confirmed in writing. The Committee concluded that this was a serious failing as the Registered Person’s actions fell far below the standard expected of a reasonable architect.

 

 

The requirement for retrospective waterproofing of the magazine structure in the grounds

 

69. The magazine is a historic underground room, originally used for the storage of ammunition. It was incorporated into the design of the Property to form a room in the grounds. After work had been carried out it became apparent that the structure suffered from damp penetration. A report from a Damp Proofing Specialist recommended the need for retrospective waterproofing. The recommended tanking work was carried out, but this required the demolition of a new floor, reworking of the electrics and replacement of wall finishes.

70. Although the Registered Person sought to distance himself from any involvement in the magazine, he became involved when he provided his professional input in relation to the services and the flooring. It should have been apparent to the Registered Person that a damp survey would be required. The Committee accepted the evidence of Mr Morrissey who concluded that the Registered Person should have ensured that the magazine would be free from damp given the change of use. A reasonable architect would have consulted the local authority regarding the matter and make appropriate records of these consultations The Committee concluded that this was a serious failing by the Registered Person, resulting in abortive work. The Registered Person’s omissions fell far below the standard expected of a reasonable architect.

 

Obstructions of the view from the swimming pool

 

71. In April 2014, the Registered Person sent the Referrer a sketch of the swimming pool with a view of the sea including Herm Island. On 24 May 2014, the Registered Person sent the Referrer a photograph of the sort of view he wanted to obtain through the trees from the pool. The Referrer replied, “I am hoping for a clearer, more panoramic view from the pool end. I assume we can trim the trees to achieve this.” The Registered Person replied stating, “Yes it is just a reminder for the principle of the idea.” In fact, trees on a neighbouring property obscured the promised view.

72. The Registered Person maintained that no such unimpeded view of Herm had ever been promised as part of the design brief and asserted that the Referrer always understood that any such view would be framed through the trees. However, the Committee considered that, even if this were supported by the contemporaneous documentation, such a design feature would still have required management of the trees which obscured the view. These trees were owned by a neighbour and their management would always have needed to be through negotiation with the Referrer.

73. The Committee noted that the view was a fundamental design feature. The swimming pool was positioned specifically to take advantage of the view but was significantly impeded by the neighbours’ trees. The Committee accepted the opinion evidence of Mr Morrissey who concluded that a reasonable architect would have recognised the potential for the existing trees to impede the view and would have explicitly warned the Referrer of this. There is no evidence in the contemporaneous documentation that he did so. The Committee concluded that, given the importance of the view, and the manner in which it was presented, the Registered Person’s omission was a serious failing as it fell far below the standard expected of a reasonable architect.

 

 

Non-provision of updated drawings showing revised location of south external steps

 

 

74. A change in the design to the south external steps required updated drawings to be provided to the cladding subcontractor. This was not done. This required an urgent order to be placed for the fabrication of two extra cladding panels.

75. It was submitted on behalf of the Registered Person that this is part of normal design evolution and did not amount to a failing. The Committee did not accept this submission. The Committee concluded that it was the Registered Person’s responsibility to issue drawings for onsite changes and it was for the cladding sub-contractor to issue drawings for the cladding. Once the decision was taken to move the steps the Registered Person had to ensure this was communicated effectively. The Committee accepted the evidence of Mr Morrissey who concluded that a reasonable architect would update and re-issue the cladding drawings. The Registered Person failed to do this. The Committee concluded that this was a failing. Although it was not a serious shortcoming, the Registered Person’s omission fell below the standard expected of a reasonable architect.

 

Absence of design of junction between garage door and surrounding external cladding

 

 

76. The Registered Person did not provide any specific detail for the cladding at the reveals of the opening for the garage door. As a consequence, the cladding pieces provided had “simply cut edges” which were not judged suitable. New pieces had to be provided, with suitably finished edges. It was submitted on behalf of the Registered Person that it was reasonable for the trim to be cut to size on the site and the cut edge hidden or masked by either a recess or a bead.

77. The Committee concluded that this was a failing by the Registered Person. The minutes for the site meeting that took place on 19 January 2019 state that the Registered Person was to provide all residual details and design elements before 15 February 2019. This was not done and no good reason for the omission was provided.

78. The Committee concluded that this omission was a failing as it fell below the standard expected of a reasonable architect.

 

 

The costs of the buried induction coils

 

 

79. The buried induction coils were required as part of the system for the electro-mechanical operation of the main gates to the property. These were not expressly shown by the Registered Person on the drawings, despite the Referrer raising the issue, and consequently were not included in the subcontractor’s accepted quotation. This resulted in an additional charge. The Registered Person should have ensured this was included in the quotation, and within the original drawings but this was not done. This was discussed in email correspondence on 1 September 2017. The Registered Person confirmed that the drawings needed to be updated and reissued. This was not done. The explanation provided by the Registered Person was that the Referrer came to site and gave a verbal instruction. However, the Committee noted that the Referrer stated that he needed to attend site because RG Falla was chasing for information from the Registered Person which he was not providing.

80. The Committee accepted the evidence of Mr Morrissey that a reasonable architect would have taken effective steps to ensure that the coils were included in the quotation. These steps would include obtaining an updated quotation and ensuring that the drawing was updated and re-issued. The Committee concluded that this was a failing. Although it was not a serious shortcoming, the Registered Person’s omission fell below the standard expected of a reasonable architect.

 

 

Discharge of planning conditions

 

81. The Referrer became aware that not all construction variations had been presented to the Planning Department for variance of the granted permission. The Registered Person wrote to the Planning Service. The reply described various difficulties with the submitted proposals and requested further information. The Registered Person’s response to the planning authority sought to deal with a substantial list of issues.

82. It was submitted on behalf of the Registered Person that he dealt with the planning variations sensibly and effectively. He made a single, comprehensive application in conjunction with direct discussions with the Planning Officers. However, due to the need to allay the concerns of a neighbour they wanted more clarity.

83. The Committee accepted that the Registered Person’s strategy of rolling up the retrospective issues may have been an appropriate way of addressing the outstanding planning issues. However, there was a risk associated with this strategy. The Committee concluded that it was not reasonable to accrue that level of risk without the prior approval of the client. The Registered Person did not raise this issue with the Referrer and as a consequence deprived him of the opportunity to make an informed decision. The Committee accepted the evidence of Mr Morrissey that this was a serious failing as it fell far below the standard expected of a reasonable architect.

 

Under specification of the pedestrian door closing mechanism

 

 

84. The Registered Person specified a door closer device for the gate. When it was fitted it was found not to be strong enough to close the gate properly. As a consequence, additional closers were ordered and fitted to the gate.

85. The Committee noted that the contemporaneous emails reveal that the Registered Person was involved in the process of obtaining the door closer. He was advised about the maximum weight for the closer to work effectively but failed to obtain the necessary information about the weight of the door. This was a failure of communication and a failure to make adequate follow up enquiries.

86. The Committee accepted the evidence of Mr Morrissey that a reasonable architect would have made proper inquiries to ensure that a suitable and adequate closer was specified. This was not a serious failing, but the Registered Person’s omission actions fell below the standard expected of a reasonable architect.

 

Particular 4 – Found Proved
“The Registered Person entered into an agreement that prevented his client from raising concerns with ARB.

87. The Referrer raised various issues with the Registered Person about the provision of his professional services in relation to the design of the Property. The Registered Person denied any liability, but the parties agreed to enter into a settlement agreement. This was agreed to be a full and final settlement of the Referrer’s civil claims in respect of the Property (save for specified exceptions). The settlement agreement is dated 8 August 2019 and contains the following confidentiality clause (clause 5.1):

“The Parties agree to keep details of the Claims, the Released Claims, the existence and terms of this Agreement and the substance of all negotiations in connection with it, strictly confidential and not divulge to any third party any information or data, subject to disclosure:

a) to any of their auditors, professional legal advisers (including insurance brokers) or insurers;
b) in order to secure compliance with the terms of this Agreement;
c) for the purpose of pursuing any other dispute against the other Party;
d) as may be required by any court of competent jurisdiction or pursuant to any proper order or demand made by any competent authority or body [emphasis added];
e) where the information has already come into the public domain or so becomes other than as a result of wrongful disclosure by any Party; and
f) with the prior written consent of the Parties [emphasis added].”

88. In November 2021, during an email exchange, the Referrer informed the Registered Person that he required an acknowledgement of the complaint he had submitted to the Registered Person and that he would be forwarding a copy of his complaint email to the ARB. The Registered Person responded by stated that in doing so the Referrer would be breaking “the legal agreement” and that the Referrer did not have his permission to contact the ARB. The reference to “the legal agreement” was understood to be a reference to the settlement agreement.

89. The Referrer sought the Registered Person’s written consent to allow information to be shared with the ARB in accordance with clause 5.1(f) of the settlement agreement. A request for consent was made by the Referrer on 5 November 2019 and chased on 21 November 2019. The Registered Person responded on 22 November 2019 making clear that written permission had not been provided and the Referrer was therefore prohibited from sharing the relevant information with the ARB. The Registered Person subsequently made the contractor aware of its existence in correspondence on 21 June 2021. The ARB became aware of the agreement when they were copied into an email by the contractor on 10 August 2021. Further correspondence between the Referrer and the Registered person on 19 and 20 September 2021 resulted in the Registered Person continuing to refuse to consent to give the Referrer consent to disclose information to the ARB.

90. The Registered Person eventually gave written permission for information to be shared with the ARB on 4 October 2021; more than two years after the settlement agreement was signed by the parties.

91. The Registered Person’s oral evidence was confused and confusing. He stated that the settlement agreement did not prevent the Referrer from speaking to the ARB and at the time he did not believe that it had that effect. However, he was unable to adequately explain why, in email correspondence he sent to the Referrer, he stated the exact opposite. The Committee rejected this aspect of the Registered Person’s evidence. It was self-serving and was not supported by the contemporaneous evidence. The Committee noted that although the ARB is a “competent authority or body” and would therefore fall into the disclosure exemption in clause 5.1(d) it could only require disclosure if it was made aware of a concern in the first place. There was clearly an overlap between the substance of the Referrer’s civil claim/prospective civil claim and the various complaints he had made to the Registered Person. The Committee noted the wording of the settlement agreement and concluded that although the Referrer was not expressly prevented from making a complaint to the ARB there was a real risk that he would be in breach of the settlement agreement given that the claim and the complaint were based on the same concerns. Therefore, the settlement agreement had the effect of preventing the Referrer from raising his concerns with the ARB. It is clear from the email correspondence that the Registered Person understood that that was the effect of the agreement. Nonetheless, for a significant period of time, he chose to withhold his consent to the Referrer being able to provide the ARB with information.

92. In these circumstances, particular 4 was found proved.

 

Particular 5 – Found Proved (in respect of Limb 1); Found Proved (in respect of Limb 2)
“The Registered Person’s actions at (4) were dishonest and/or lacked integrity.”

 

Integrity

 

93. The Registered Person is a registered Architect. The Referrer, as his client, the ARB as his regulatory body and the public are entitled to expect higher standards of him than they would expect from a non-registered professional. The Registered Person knew that the Referrer had concerns relating to his professional practice and any attempt to prevent these concerns from being brought to the attention of the ARB has the potential to undermine the regulatory process. The Registered Person chose to put his own interests above his obligation to observe a high ethical code consistent with the standards of conduct expected of a registered Architect.

94. In these circumstances, the Committee concluded that the Registered Person’s conduct and behaviour demonstrated a lack of integrity.

 

Dishonesty

95. The Committee took into account its finding in respect of particular 4 and its lack of integrity finding. The Committee was satisfied that the Registered Person knew, at the time that he entered into the agreement, that it would prevent the Referrer from raising relevant concerns with ARB. The Committee noted that it was the Registered Person who drew the Referrer’s attention to the content of the agreement by stating that providing information to the ARB would constitute a breach. The Committee also noted that the Registered Person, on his own case, was willing to be dishonest, in that he claimed to believe that the Referrer could make a complaint to the ARB but was prepared to lie to the Referrer in email correspondence because it suited his aim at the time. The Committee also noted that the Registered Person claimed, during his oral evidence, to be familiar with the provisions in the Code. If true, this would mean that not only did the Registered Person lie to the Referrer about his understanding of the effect of the settlement agreement but did so knowing that he was in breach of the Code.

96. The Committee did not accept this aspect of the Registered Person’s evidence. The Committee concluded that this demonstrated the lengths the Registered Person was prepared to go when it suited his immediate interests. The Committee concluded that the Registered Person was not familiar with the Code. In reaching this conclusion the Committee took into account its finding that the Registered Person had not complied with Standard 4.4. Terms of engagement are a fundamental requirement, yet the Registered Person demonstrated no proper understanding of his obligations under the Code. However, the Registered Person did know that there were concerns about his professional conduct during the project as these had been raised by the Referrer on numerous occasions. He also knew that the ARB had the power to investigate complaints and take appropriate action on his registration, if required.

97. The Committee, having established the Registered Person’s state of knowledge went on to consider whether his actions would be considered dishonest by the ordinary standards of reasonable and honest people.

98. The Committee was satisfied that at the time the Registered Person entered into the settlement agreement he knew that it would prevent the Referrer from raising his concerns with the ARB. Although the Registered Person considered these concerns to be unfounded, he was content for the Referrer’s concerns to be withheld from the ARB. The role of the ARB is to protect the public and the wider public interest. The Committee concluded that the Registered Person was not familiar with the Code, but he was aware of the ARB’s remit and did not want a complaint to be made to the ARB because of the potential adverse consequences. The Committee concluded that such conduct would be considered dishonest by reasonable and honest people.

99. The Committee concluded that this amounted to dishonesty which undermines the very heart of the regulatory process and system and prevented a genuine complaint or concern being raised.

 

Decision on Unacceptable Professional Conduct (UPC) and Serious Professional Incompetence (SPI)
Additional Evidence

100. At this stage of the proceedings, the Registered Person provided the Committee with two additional documents: (i) a response dated 14 July 2024; and (ii) a bundle of exhibits. The response included additional information about the factual background from the Registered Person’s perspective. The Committee was also provided with: (i) a Professional Conduct Committee decision, dated 12 January 2011 (‘the 2011 reprimand’), which confirmed that the Registered Person had been made subject to a reprimand for failing to respond to communication from the ARB in accordance with the timescale set out in the Code; and (ii) an Investigating Panel decision, dated 9 February 2017, which had resulted in the Registered Person receiving formal Advice (‘the 2017 Advice’). The hearing in 2011 was as a result of a complaint by the Referrer. However, the allegations made by the Referrer were withdrawn at the hearing as the Referrer did not attend to give evidence. The 2017 Advice related to a complaint made by the Registered Person’s former clients – Mr and Mrs T. The allegations, based on their complaints, included failing to keep them updated, failing to undertake work without unreasonable delay and acting incompetently or without integrity. The 2017 Panel found no case to answer but was satisfied that the Registered Person should be issued with Advice. The 2017 Advice stated as follows:

a. “…the Architect is reminded to comply with all the standards of the Code, specifically that he must ensure that he sets out a clear and comprehensive description of the scope of work and related fees and keeps his clients updated as to any changes therein. Additionally, he must ensure that he carries out his work without undue delay and in accordance with any time-scale agreed with his client. Where a client has specified a timescale that he considers cannot be met he should discuss this with the client at he earliest opportunity to agree a revised timescale.

b. It should be noted that this decision is not a disciplinary finding, and that the advice is not a disciplinary penalty. The Panel may, however, take the circumstances of this case and the advice given above into account in any subsequent matter which it is called upon to consider in relation to him.”

101. The Registered Person chose to give oral evidence. He accepted that he did not provide the Referrer with adequate Terms of Engagement and realised this about 18 months into the project. However, in response to a question from the Committee, he was unable to explain why he did not admit this allegation at the outset of the hearing. The Registered Person accepted that he was responsible for a number of failings but did accept that he had acted dishonestly or without integrity.

 

The Committee’s Approach

102. The LQC advised that whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment; there is no burden or standard of proof.

103. UPC is defined as conduct which falls short of the standard required of a registered person. In reaching its findings on UPC, the Committee recognised that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings or a finding of UPC. Architects are expected to be guided by the spirit of the Code as well as its express terms.

104. In deciding whether the facts found proved amount to UPC the Committee had regard to Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It bore in mind in reaching its decision that for a finding of UPC to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. The Committee also took into account the observation made by Mr Justice Kerr in Shaw v The General Osteopathic Council [2015] EWHC 2721 (Admin) that although the conduct in question must be sufficiently serious, it does not need to be of such gravity that imposing an admonishment would be too lenient.

105. The Committee noted that Serious Professional Incompetence is a serious failure to meet the required standard of skill expected of a member of the profession.

 

Findings in relation to UPC and SPI

106. The Committee found at the fact-finding stage that the Registered Person (i) failed to provide the Referrer with adequate terms of engagement; (ii) failed to act without undue delay; (iii) failed to act with due skill and care; and (iv) entered into a settlement agreement and, in doing so, acted dishonestly and demonstrated a lack of integrity.

107. The Committee concluded that the factual findings and the corresponding breaches of the Code are sufficiently serious to adversely impact both on the reputation of the Registered Person and the profession generally. In all the circumstances, and for the reasons set out below, the Committee found that the Registered Person’s conduct amounted to UPC in respect of the factual particulars, both individually and cumulatively.

108. The Committee, having found UPC, went on to consider SPI. The Committee concluded that a finding of SPI would not materially add anything to its assessment of the Registered Person’s culpability. In any event, the Committee concluded that the UPC finding fully captured the nature and extent of the Registered Person’s conduct.

 

Terms of Engagement

 

109. The Registered Person had a duty to be aware of and to follow the terms of the Code of his regulatory body. Standard 4.4 sets out clearly what the terms of engagement are expected to include and is a fundamental requirement. Compliance with these expectations protects the client, the Architect, and the public and is not onerous or difficult to achieve. The Registered Person described his behaviour as “naïve”. The Committee accepted this characterisation and noted that the Registered Person appeared to have been carried away with enthusiasm for the project but that was no excuse for paying little or no attention to the terms and conditions which would frame the scope of the project.

110. The Committee concluded that the failure to provide adequate terms of engagement was very serious. Everything that went wrong with this project stemmed from the inadequacy of the terms and conditions from the outset.

 

Undue Delay

 

 

111. The Committee acknowledged that the O&M Manual remains incomplete (as the building remains incomplete) and therefore the Registered Person’s failure to respond to requests for information from Dawn Wilcox did not cause undue delay to the final production of that document. The Committee also acknowledged that the Referrer’s requests and demands may not have been consistent with the “critical path”. However, the Registered Person’s failure to communicate effectively with his client and Dawn Wilcox, while it may not have caused a material delay to the project, meant that he personally acted with undue delay. The Registered Person ignored or disregarded repeated requests for information and provided assurances, promises or expectations which he repeatedly failed to honour. The Referrer resorted to managing and chasing the Registered Person to seek to ensure that his work was done in a timely way. This became a pattern which persisted for a significant period of time. This is not professional behaviour.

112. The Committee noted that communication skills are fundamental to effective practice as an Architect and lies at the heart of interactions with clients and other professionals. Persistent failure to communicate in a timely manner is likely to undermine a client’s trust and confidence in the individual architect and in the profession as a whole.

 

Undue skill and care

 

 

113. In accordance with Standard 6.1 of the Code, an Architect has a professional duty to carry out their work with skill and care in line with the terms of their engagement. It is fundamental to professional conduct and professional work as a registered Architect that work undertaken is carried out with adequate skill and care. The Committee noted that, in its factual findings, five of the failings were found to be serious, in that they fell far below the standard expected of a reasonable architect. Although the failings relate to a single project, they represent a significant departure from the high standards expected of a registered Architect because the potential consequences were so serious. The foreseeable consequences included more time and money (including reinstatement costs and consequential delay), stress and inconvenience, and a prolonged period of uncertainty. The thread running through all of the factual findings in respect of particular 3 is a persistent lack of effective communication.

114. The Registered Person’s failings amounted to a significant departure from the high standards of conduct and behaviour expected of registered architects at all times. The failings cannot properly be described as one-off instances as they were repeated or persisted for a significant period of time and demonstrate a disregard for the duties and obligations expected of members.

115. The Committee took into account the wider public interest, which includes the maintenance of public trust and confidence and the declaring and upholding of professional standards. The Committee concluded that if there was no finding of UPC it would undermine rather than uphold public trust and confidence in the professional standards of Architects.

 

Dishonesty and Lack of Integrity

116. Registered architects are expected to act with integrity and honesty at all times. Such qualities are fundamental to the personal standing of individual architects and maintaining public confidence in the profession. The Registered Person chose to disregard his professional obligations to further his own needs.

117. The Committee concluded that the Registered Person’s breach of the trust placed in him as a registered architect fell far below the standards expected.

118. For the same reasons, as stated in paragraph 113 above, the Committee concluded that the wider public interest required a finding of UPC.

 

Decision on Sanction

The Registered Person’s Evidence

119. The Registered Person chose to give evidence at the sanction stage. He described 2012-2014 as a difficult period due to the breakdown of a relationship and as a consequence, the need to downsize his practice from 25 employees and 3 offices to 4 or 5 employees. He stated that his company was closed down in 2022. He is now employed as an Architect at Studio Otto and works with Lucrezia Cavallone, who is the Managing Director and a designer. The Registered Person stated that he tends to work on bespoke renovations/rebuilds and one-off houses. He is currently working on four residential projects (one in Jersey and the others in Guernsey).

120. The Registered Person referred the Committee to positive testimonials from previous and current clients and other professionals he has worked with including a building contractor, landscape architect and lighting designer. The testimonials are dated between 23 March 2023 and 3 March 2024 (save for two which are undated). The Registered Person also provided the Committee with copies of positive comments about his work that had been posted on LinkedIn.

121. The Registered Person informed the Committee that he now ensures that there is a written contract for each project. He uses a RIBA contract for small domestic projects and a JCT contract for larger projects. He stated that he would not commence a project without a signed contract. He accepted that not providing the Referrer with adequate Terms of Engagement and not advising him that his view from the pool would be impeded by the trees were serious failings. He also accepted that by entering into the settlement agreement knowing that it would prevent the Referrer from making a complaint to the ARB was dishonest. However, he denied that some of his other acts or omissions, such as failing to advise on damp proofing for the magazine, were serious. He stated that he was not in control of the design and construction.

122. The Registered Person informed the Committee that suspension or removal from the Register would have a devasting impact on his practice and his family. He stated that he would be in a position to pay a penalty order but would appreciate the opportunity to pay it in instalments.

 

The Committee’s Approach

123. The Committee took into account its previous findings and the submissions made by both parties. The Presenter did not make a “bid” for any particular sanction and acknowledged that there is no requirement to impose a sanction in every case. Mr Shrimplin reiterated and stressed the importance of the impact suspension or removal from the register would have on the Registered Person and invited the Committee to impose a financial penalty.

124. The Committee took into account the Sanctions Guidance (SG). The Committee was mindful that the purpose of any sanction is not to punish the Registered Person but to protect the public and the wider public interest. The public interest includes upholding public confidence in the profession and declaring and upholding proper standards of conduct and competence.

125. The Committee applied the principle of proportionality by taking into account the aggravating and mitigating factors, weighing the Registered Person’s interests with the public interest, and considering the available sanctions in ascending order of severity.

 

Decision

 

126. The Committee noted that the Registered Person’s inadequate Terms and Engagement had the potential to cause delay, undue stress and anxiety, and financial loss. His lack of communication also exposed the Referrer to an unwarranted risk of harm, in that it caused undue delay, uncertainty, stress and inconvenience. These acts and omissions were repeated throughout the project and formed a pattern of behaviour which persisted for a significant period of time. The Registered Person also demonstrated a lack of integrity and acted dishonestly.

127. The Committee acknowledged that the Registered Person experienced difficult personal and professional circumstances around the time he first became involved in the project. The Committee also noted that the project itself was a high end construction which required working with and liaising with a range of other professionals to reflect the Referrer’s choice of materials, the use of innovative technologies and craftsmanship. In particular, the Committee noted that the Referrer had high expectations and had little tolerance for shortcomings. The combination of these stressors provides the background circumstances in which the Registered Person’s failings occurred.

128. The Committee noted that the Registered Person had expressed remorse, during these proceedings and had demonstrated some insight. The level and scope of his insight developed following the Committee’s UPC finding. However, these expressions of remorse and emerging signs of insight appeared to be based on a belated acknowledgement that his denials and explanations had not persuaded the Committee that his culpability was low. The Committee was left with the impression that the Registered Person believed and continues to believe that many of his acts and omissions were justified because of the stress factors described above and because of the failings of others. The Committee recognised that the Registered Person was entitled to hold that view, but it concluded that his insight was under-developed and therefore insufficient. In these circumstances, the Committee concluded that the Registered Person’s lack of meaningful insight was an aggravating factor.

129. However, the Committee concluded that the Registered Person had demonstrated some insight. For example, the Registered Person explained that he now ensures that terms and conditions and the responsibilities of the parties are approved and signed at the outset of a project. While the Committee noted that the Registered Person struggled at times to demonstrate that he had learned from his past mistakes in order to reassure the Committee that his failings would not be repeated, his description of his new contract arrangements and his reflections on the circumstances in which he signed the settlement agreement demonstrated that he had taken steps towards adapting his practice in light of the experience of this project.

130. In light of the above, the Committee identified the following as aggravating factors:

I. The Registered Person’s actions exposed the Referrer to a substantial risk of harm as there was no adequate contract clearly setting out the terms and conditions.
II. Although the failings occurred in relation to a single commission the Registered Person demonstrated a pattern of poor conduct which persisted for a significant period.
III. The Registered Person’s lack of sufficient insight demonstrated a limited ability to acknowledge his failings.
IV. The Committee noted that by the time the 2017 Advice was issued the project was well underway. However, there was no evidence that following receipt of the 2017 Advice, the Registered Person took appropriate steps to ensure that he carried out his work from that point onwards without undue delay and in accordance with the Referrer’s timescales. Or that when the timescale could not be met he proactively took steps to discuss this with the Referrer to agree a revised timescale. The Committee concluded that the Reprimand was not an aggravating factor as it related to unrelated matter and occurred more than 10 years ago.

131. The Committee identified the following as mitigating factors:

I. The Registered Person is an award-winning Architect who has delivered many excellent buildings and has provided as valuable service to the public.
II. The positive testimonials demonstrate that in other contexts he has communicated well with his clients and other professionals and has provided a high quality service without undue delay. The Committee noted that the authors of these testimonials were not aware of the specific allegations in this case but they were provided with a copy of the ARB Code.
III. The project was highly complex and difficult.
IV. The Registered Person was experiencing personal stressors at the time the project commenced.
V. The Registered Person has taken appropriate steps to ensure that his contractual arrangements comply with Standard 4.4 of the Code by adopting either a RIBA contract or JCT contract before commencing work.
VI. The Registered Person tried his best to remain engaged with the project in order to remedy the defects. He did this without receiving further payment from the Referrer.

 

No Sanction

132. The Committee first considered whether to conclude the case by taking no action on the Registered Person’s registration. In doing so, the Committee considered paragraph 6.1.2 of the SG which states:

“In rare cases the PCC may conclude, having had regard to all the circumstances, that the level of seriousness of the architect’s conduct or incompetence is so low that it would be unfair or disproportionate to impose a sanction. Where the PCC has determined a sanction is not required, it is particularly important that it is clear in its written reasons as to the exceptional circumstances that justified imposing no sanction.”

133. Exceptional circumstances are unusual, special, or uncommon. The Committee determined that neither the background to this case nor the specific circumstances that arose, could be properly characterised as exceptional. Furthermore, the Committee concluded that the finding of UPC alone would not be sufficient, proportionate, or in the public interest. In reaching this conclusion the Committee was mindful that the Registered Person’s failings diminish both his reputation and that of the profession generally. The Committee therefore concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction.

 

 

Reprimand

 

 

134. The Committee considered whether to impose a Reprimand. The Committee took into account the non-exhaustive factors as set out in paragraph 6.2.2 of the SG which indicate when a Reprimand may be the appropriate and proportionate sanction.

135. The Committee noted that the risk of harm was caused by the Registered Persons acts and omissions. In the absence of sufficient insight and remediation, the Committee was unable to exclude the possibility of the risk of harm to the wider public. The Registered Person demonstrated poor judgment for a significant period of time. In these circumstances, the Committee concluded that rather than uphold the Committee’s regulatory duty to protect the public, maintain public confidence in the profession, and uphold proper professional standards and conduct for members of the profession, a Reprimand would undermine these objectives.

136. Therefore, the Committee concluded that a Reprimand would be neither appropriate nor proportionate.

 

 

Penalty Order

 

 

137. The Committee considered whether the imposition of a Penalty Order would effectively reinforce the importance of complying with the Code and the high standards of conduct expected of Architects. The Committee concluded it would not. In the circumstances of this case, the Committee concluded that a financial penalty would add nothing of materiality to the significance of public censure in the form of a Reprimand. In reaching this conclusion the Committee was mindful that it had found that the Registered Person had acted dishonestly.

138. The Committee concluded that a Penalty Order would be insufficient to protect the public and meet the wider public interest given the nature and gravity of the Registered Person’s dishonest conduct and behaviour.

 

 

Suspension Order

 

 

139. The Committee next considered a Suspension Order. A Suspension Order would re-affirm to the Registered Person, the profession, and the public the standards expected of a registered architect. The Committee noted that a Suspension Order would prevent the Registered Person from using the title of ‘Architect’ in the UK during the suspension period, which would therefore provide a degree of protection to the public.

140. The Committee took into account the factors set out in paragraph 6.4.3 of the SG which indicate that a Suspension Order may be the appropriate and proportionate sanction. The Registered Person has demonstrated only limited insight into his conduct and has not taken full advantage of the opportunity to persuade the Committee that meaningful lessons have been learned from his experience of working on this project. Although a lack of insight is often associated with a risk of repetition, the Committee concluded that the Registered Person’s failings are unlikely to be repeated. The Committee was satisfied that the Registered Person has taken appropriate steps to ensure that he has appropriate Terms of Engagement in place at the outset of a project. The Committee concluded that the other issues (lack of communication, dishonesty and lack of integrity) are also unlikely to be repeated. The Committee reached this conclusion because of the significant impact these proceedings have had on the Registered Person’s professional and personal life. The Committee concluded that the Registered Person, despite his limited insight and the limited evidence that he made any changes to his practice following the 2017 Advice, will be highly motivated to ensure that similar concerns are not raised in the future.

141. There were features of this case which strongly indicate that a Suspension Order would be insufficient to address the Committee’s public interest objectives. However, the Committee noted that erasure is a sanction of last resort and should be reserved for those categories of cases where there is no other means of protecting the public and the wider public interest. The Committee concluded that despite the nature and gravity of the Registered Person’s conduct, and his lack of insight, any risk of repetition was sufficiently low to justify a Suspension Order. The Committee noted that these findings relate to matters that occurred at least 5 years ago and have not been repeated. In these circumstances, the Committee concluded that the appropriate and proportionate sanction is a Suspension Order.

142. In reaching this conclusion the Committee balanced the wider public interest against the Registered Person’s interests including the consequential personal and professional impact a period of suspension may have upon him. However, the Committee concluded that these considerations were significantly outweighed by its duty to give priority to the wider public interest.

143. The Committee concluded that erasure would be unduly punitive given the mitigating factors described above.

 

 

Length of Suspension

144. The Committee concluded that the seriousness of the Registered Person’s failings justifies a significant period of suspension, would reflect the fact that there were features of his conduct which justified erasure and would send a clear message to the public and the profession re-affirming the importance of maintaining the standards the profession. It would also afford the Registered Person a period of time in which to reflect upon the nature of professional conduct and the importance of honesty and integrity at all times.

145. The Committee concluded that a Suspension Order should be imposed for a period of 2 years.

146. That concludes this determination.