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Mr John Kirkpatrick

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr John Kirkpatrick 049640E

Held as a video conference

On 28-30 September 2020

———-

Present

Emma Boothroyd (Chair)
Roger Wilson (PCC Architect Member)
Martin Pike (PCC Lay Member)

———–

In this case, ARB was represented by Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate Limited.
Mr Kirkpatrick did not attend and was not represented.

The Professional Conduct Committee (“PCC”) found Mr Kirkpatrick guilty of unacceptable professional conduct (“UPC”) in that he:

    1. Failed to adequately or at all to inspect the site in accordance with the Architects Certificate dated 22 May 2017;
    2. Failed adequately or at all to co-operate fully and promptly with the Architects Registration Board (“ARB”);
    3. Acted inappropriately, in that, he attempted to enter into a financial settlement with the Complainant on condition that she withdraw her complaint from ARB.

And that by doing so, he acted in breach of Standards 6, 9 and 11 of the Architects Code: Standards of Professional Conduct and Practice 2017 (“the Code”).

The sanction imposed is a one year suspension order.

1. In this matter, ARB was represented by Mr Jonathan Goodwin. Mr Kirkpatrick (“the Respondent”) did not attend and was not represented.

2. The Respondent faces the following allegation:

1) That he is guilty of unacceptable professional conduct in that he:

i. failed adequately or at all to inspect the site in accordance with the Architects Certificate dated 7 January 2015 and/or 22 May 2017;
ii. failed adequately or at all to co-operate fully and promptly with ARB;
iii. Acted inappropriately, in that, he attempted to enter into a financial settlement with the Complainant on condition that she withdraw her complaint from ARB.

3. As a preliminary issue, the Committee considered whether to adjourn matters as suggested by the Respondent in his reply to ARB dated 25 September 2020. In making that decision the Committee took account of the representations made by Mr Goodwin which in summary stated that there was no compelling reason to adjourn proceedings and there was a public interest in matters proceeding. Mr Goodwin referred to the case of R V Hayward & Jones [2003] 1 AC HL and GMC V Adeogba and Visvardis and set out the factors to which the Committee should have regard. He submitted that there was no suggestion that the Respondent would attend any adjourned hearing and an adjournment would serve no useful purpose. He further submitted that the Respondent had given contradictory statements about his position and his latest email suggested that he was content for matters to proceed in his absence.

4. The Committee accepted the advice of the Chair and had regard to the relevant factors as outlined in the case of R v Hayward, Jones & Purvis in the Court of Appeal [2001] EWCA Crim 168 and approved in the House of Lords and also the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162. The Committee also had regard to the Guidance note on adjournments prepared by ARB.

5. The Committee had regard to the request from the Respondent in his reply to ARB dated 25 September 2020 sent via email at 10.24 am. “Please assist in bringing this case to a conclusion and if it is possible, please postpone the hearing on Monday. If things proceed I am willing to accept the appropriate sanction.” The Committee noted that although the Respondent set out some mitigating circumstances he did not expressly explain why he was seeking an adjournment and, if allowed, when he would be able to attend and participate. The email which attached the document explained that the Respondent was back in the office on Monday and he would be able to call.

6. In response to this document, Ms Swanston, the Hearings Officer for ARB contacted the Respondent via email on the 25 September 2020 at 12.29 pm to ask whether he was intending to participate via Zoom at the hearing on Monday 28 September 2020 and provide any evidence in support of his request for an adjournment. In an email reply timed at 16.19 the Respondent stated, “I do not wish to get into a situation of conflict and I am happy to proceed to have this dealt with in my absence.”

7. In all of the circumstances, the Committee could not identify any reason why the hearing should not proceed. The Respondent had not provided any reason why he was unable to participate other than his unwillingness to involve his wife. The Committee did not consider this was a valid reason to adjourn matters and there was no realistic prospect that the Respondent would engage with any adjourned hearing. The Committee decided to refuse the application for an adjournment.

8. Having done so, the Committee went on to consider whether to proceed in the absence of The Respondent. The Committee noted that the relevant Notice of Hearing and supporting documentation was served on the Respondent at his registered address on 5 August 2020 in accordance with Rule 6 and 10 (a) of the Professional Conduct Committee Rules and Section 3 of the Architects Act 1997. The Committee were satisfied that the Respondent has been properly served with the required notice of this hearing. Indeed, the Respondent has confirmed that he is aware of the arrangements for the hearing but does not intend to join via Zoom.

9. The Committee took into account all of the circumstances put forward by the Respondent and by Mr Goodwin on behalf of ARB. In particular, the Committee also considered whether there was any reason why the hearing would be unfair if it was conducted virtually. The Committee has taken into account the relevant case law in relation to virtual hearings and in particular the factors as outlined in the case of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583.

10. The Committee has exercised great care and caution in reaching its decision and has carefully considered the overall fairness of the proceedings. The Committee was satisfied that the Respondent has been given an adequate opportunity to appear before the Committee to argue his case and that he had chosen not to do so. He was aware of the hearing and had chosen to voluntarily absent himself. He had provided a reply to ARB setting out his position which the Committee could take into account. There was no realistic prospect that the Respondent would attend any adjourned hearing and the Committee could identify no good reason to adjourn. There was a witness ready to give evidence and the allegations against the Respondent are serious.

11. In considering all of the other circumstances the Committee did not consider it was appropriate to adjourn the hearing. In balancing the interests of the Respondent against the public interest in the expeditious disposal of matters it considered that it was fair and proportionate to proceed in the absence of the Respondent.

Background

12. The background to the allegations is that the Respondent was instructed by a developer to carry out site inspections for the purpose of checking the quality of construction of a semi-detached house in Belfast. The Respondent signed two Architect’s Certificates for the house confirming that the work had been carried out in general conformity with the drawings approved under the building regulations and instructions issued under the building contract. The first certificate was signed on 7 January 2015 which stated that the Respondent “shall” visit the site at appropriate periods to check construction and confirmed he would be liable for a period of 10 years from the date of the certificate. The second certificate was signed on 22 May 2017 and confirmed that the Respondent had visited the site at appropriate intervals and would be liable for a period of 6 year from the date of the certificate.

13. The Complainant purchased the house in September 2017. They began negotiations to purchase the house in around May 2017. In her complaint to ARB, the Complainant explained that they relied on the Architect’s Certificates produced by the Respondent when deciding to buy the house. There was an issue with planning permission and the drains which arose before completion and so the Complainant negotiated a discount and lived in the house under a caretaker arrangement for a number of months between July and September 2017 until the issues were resolved.

14. A few months after they bought the house they experienced issues with damp in two of the bedrooms. They had conversations with the developer who at this point was living next door and it was agreed that the roof would be inspected. It was discovered that there was a lack of ventilation in the roof area which caused a build-up of condensation in the insulation causing damp. Eaves vents and ventilated roof tiles were installed and the insulation was replaced at a cost of £1700. The developer paid a contribution of £300 to these works.

15. The Complainant identified a number of other defects with the construction of their property in addition to the issues with the roof, which were an incorrectly installed soil vent pipe, stored oil tank situated on the wrong base, fans in two bathrooms not vented to the atmosphere and incorrect installation of the extractor fan in the kitchen.

16. The Complainant instructed solicitors and attempted to raise the matters with The Respondent. The Complainant alleged that the Respondent did not respond promptly to them and so they complained to ARB in September 2018 about these matters. Further issues became apparent with the flat roof and the Complainant instructed a roofing contractor GBS Roofing who prepared a report following an inspection on 21 March 2019. The report concluded that the roof membrane was not properly sealed and there were incorrect falls on the roof leading to “ponding” of water. An estimate of £2620 was provided by GBS Roofing to carry out remedial works.

17. In March 2019 ARB wrote to the Respondent requesting further information about the site visits conducted at the property. It is alleged that the Respondent failed to reply and a further reminder was sent requesting a response by 3 April 2019. In the absence of a response, ARB wrote to the Respondent again on 4 April 2019 asking again for the information and reminding the Respondent of his obligations under the Code. The Respondent replied via his solicitors on 17 April 2019. ARB allege that this response did not provide the information requested or deal with the allegations and it wrote again on 18 April requesting a response by 1 May 2019. It is alleged that the Respondent did not reply. On 23 May 2019 ARB passed the matter to the Investigations Panel (IP).

18. On 13 June 2019 the Complainant wrote to ARB and provided a copy of a letter written by the Respondent’s solicitor which offered to settle the dispute, on a without prejudice basis, in the amount of £2,500 on condition that they withdraw the complaint to ARB. This letter formed the basis of a further allegation which was notified to the Respondent on 19 June 2019. On 29 July 2019 the IP provisionally found there was a case to answer and determined to refer the allegation to the Professional Conduct Committee. On 9 August 2019 the Respondent’s solicitors provided a response and set out his position in relation to the allegations.

Decision on facts and UPC

19. In reaching its decisions, the Committee has carefully considered the submissions of the parties, together with the documentary evidence presented to it in the Report of ARB’s Solicitor together with the submissions made by the Respondent. The Committee heard live evidence from the complainant the Complainant.

20. The Committee considered that the Complainant gave clear evidence and was able to explain in detail how the problems with construction came to her attention and the timeline of the complaint. The Complainant was not present during construction and did not visit the site during the construction phase so was unable to assist with information about what stage the building had reached at any given date or whether the Respondent ever attended. The Committee considered that the Complainant gave reliable and balanced evidence.

21. The committee has accepted the legal advice given by the Legally Qualified Chair. It has had regard to the fact that the burden of proof in this case is on ARB and that the civil standard applies, namely proof on the balance of probabilities.

22. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.

23. UPC is defined as conduct which falls short of the standard required of a registered person. In reaching its findings on UPC, the committee recognises 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. 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. The architect is expected to be guided by the spirit of the Code as well as its express terms and the fact that a course of conduct is not specifically referred to does not mean that there can be no finding in disciplinary proceedings even if there has been no clear breach of the express terms.

Allegation

1.1 failed adequately or at all to inspect the site in accordance with the Architects Certificate dated 7 January 2015 and/or 22 May 2017.

24. The Committee was satisfied that the Respondent had failed to adequately inspect the site in accordance with the terms of the Certificate he signed on 22 May 2017 which stated as follows, “I have visited the site at appropriate periods” and “So far as could be determined by each periodic visual inspection the property has been generally constructed a) to a satisfactory standard and b) in general compliance with the drawings approved under the building regulations.”

25. At the point of signing the certificate dated 22 May 2017 the property was stated to be 100% complete. The Committee was satisfied that if the Respondent had carried out adequate inspections of the site it would have been obvious to him that the roof was not correctly ventilated and there was an absence of vent tiles. Similarly, it would have been evident that the oil tank was incorrectly positioned. These matters would have been visible to the Respondent without any opening up. If the Respondent had been checking that the property was generally constructed to a satisfactory standard the Committee considered that it would be reasonable to have noticed the other issues with the construction, in particular, the vents in the bathrooms and the kitchen, and the issues with the flat roof.

26. The Committee had no information from the Respondent about how often he visited the site and what the outcome of any inspections were. The Respondent has provided no inspection notes or evidence of his site visits. The Committee was persuaded that the construction was deficient in a number of material aspects and deviated from the approved drawings. The Committee considered that the Respondent had failed to satisfy himself that the basic requirements were met in relation to the construction of the roof in particular. In these circumstances the Committee was satisfied that the Respondent had failed to adequately inspect the site as he certified in the certificate dated 22 May 2017.

27. The Committee had no evidence about the stage construction had reached in January 2015 and so it could not be satisfied that the defects set out above would have been evident on inspection by the Respondent in January 2015. It could not be satisfied that the Respondent had not carried out an adequate inspection when signing the certificate dated 7 January 2015. That certificate expresses an intention to visit the site by use of the word “shall” and therefore the Committee did not find the allegation proved in relation to this certificate.

1.2 failed adequately or at all to co-operate fully and promptly with ARB;

28. The Committee was satisfied that the Respondent had failed to co-operate fully and promptly with ARB. The letter dated 11 March 2019 sent to the Respondent was clear in that he was required to respond with the information about how often he made site visits and whether any notes were made at these visits. It was clear that this information was required in order for ARB to decide whether this was a complaint it was able to investigate. The Respondent was required to provide the information by 25 March 2019.

29. Not only did the Respondent not respond to this letter, he also failed to respond to a reminder on 27 March. A further reminder was sent on 4 April and on 5 April the Respondent replied that he intended to respond “asap”. An extension was granted to 15 April but the Respondent again failed to respond, which led to the allegation. The Committee noted that it was not until his reply to ARB dated 25 September 2020 that the Respondent set out that he “inspected the property regularly” but he has still failed to properly particularise how often he visited the property and whether any notes were made at these visits.

30. The Committee was satisfied that the Respondent has failed to co-operate fully with ARB and provide the information requested in a timely manner to enable it to discharge its statutory function.

1.3 Acted inappropriately, in that, he attempted to enter into a financial settlement with the Complainant on condition that she withdraw her complaint from ARB. –

31. The Committee noted that the letter sent to the Complainant’s solicitors on 6 June 2019 was clear. It was sent on behalf of the Respondent as the Complainant and set out that he was prepared to offer £2500 in full and final settlement “..on condition that you withdraw the complaint to ARB”. The intention of this letter could only have been to attempt to enter a financial agreement on condition that the complaint to ARB was withdrawn. The Committee considered that the question of whether this was inappropriate was more properly dealt with in its consideration of UPC as set out below but it finds that as a matter of fact the letter was such an attempt.

32. 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 has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.

33. The Committee considered that the declarations on the Architect’s Certificate dated May 2017 which essentially confirmed that the Respondent had visited the site regularly and was satisfied that the building was constructed to an appropriate standard, was relied on by the complainants and their lender when deciding to buy the house.

34. In the Committee’s view, the Respondent’s conduct constituted a breach of Standard 6 of the 2017 Code. The Committee considered that the Respondent did not discharge his responsibility faithfully, conscientiously and with due regard to the relevant technical and professional standards in certifying that the house had been constructed in general conformity with Building Regulations and the approved drawings. There was no evidence that the Respondent noted any of the matters of deficient construction which subsequently came to light even though these should have been obvious to him. In relation to the other matters the Respondent should have satisfied himself by an adequate visual inspection of all aspects of construction at appropriate intervals before signing the Certificate dated May 2017.

35. The Committee considered these failings to be serious. They have impacted on the Complainants and their family and they have suffered expense and inconvenience in putting matters right. The Complainant explained that they were re-assured by the Respondent’s Certificate when purchasing the house and looked upon them as a guarantee that the house had been properly constructed. The Complainant explained that she relied on this certificate and forwarded it to her lender as it was required for their mortgage. These certificates are signed by a qualified architect. If architects cannot satisfy themselves that the building is adequately constructed or seek to place blame on to others then the certificates are worthless and have no real value.

36. With regard to the failure to respond to ARB the Committee considered that the Respondent had breached Standard 11 of the 2017 Code and had failed to provide information promptly that had been reasonably requested by his regulator. The Committee considered that the responses provided by the Respondent, including his most recent reply, lacked the required information and failed to engage with the substance of the allegations against him. The Committee considered that this was a serious failing by a registered professional over a prolonged period of time to co-operate with ARB. The Committee noted that the Respondent suggested he was somehow constrained by the legal proceedings intimated by the complainants. However, the Committee did not accept this was a legitimate reason for the Respondent’s failure to substantively reply within the timescales given or a reason why he could not tell ARB how often he visited site and whether there were any notes of those visits.

37. In respect of allegation 1.3 the Committee considered that although not an express breach of Standard 9.5 it was a breach of the spirit of the Code. The Committee considered the mischief envisaged by Standard 9.5 was to prevent architects from subverting the legitimate investigation of complaints by essentially offering a financial incentive for them to be withdrawn. The Committee considered that the clear intention of the letter sent on 6 June 2019 was to persuade the Complainants to withdraw the complaint in return for a financial incentive. The Complainant said in her oral evidence she was shocked at this approach and indeed she forwarded the letter to ARB as she was concerned about it. In the Committee’s view it was clearly in breach of the spirit of the Code as the effect of the arrangement, if accepted by the Complainants, would have had an impact on ARB’s ability to continue with the investigation of the complaint. If the Complainants have essentially withdrawn their complaint it impacts on their ongoing provision of information and assistance to ARB when investigating or brining proceedings. The Committee considered that this adversely impacted on the reputation of the profession and in particular The Complainant’s view of the professionalism of the Respondent.

38. It is the Committee’s finding that the facts found proved and the corresponding breaches of the Code are serious and adversely impact both on the reputation of the architect and the profession generally. They represent a standard of conduct falling significantly and materially below the standard expected of a registered architect.

39. In all the circumstances and for the reasons set out above, the committee finds that the Respondent’s conduct does amount to unacceptable professional conduct.

40. Mr Goodwin set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. Mr Goodwin submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction and referred to his earlier submissions on UPC in respect of the seriousness of the matters found proved. Mr Goodwin confirmed that Mr Kirkpatrick had no previous regulatory history with ARB.

41. The Respondent outlined in his written response to ARB that he has had a lengthy career with no previous complaints or concerns. This matter occurred in the context of one project which he had trusted the developer to resolve although the relationship with the developer had now broken down. The Respondent outlined his personal circumstances which have prevented him from dealing fully with the matter and he expressed some regret for the issues that had arisen.

42. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and ARB, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, ARB Sanctions Guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case and it has exercised its own independent judgement.

43. The Committee has identified the following aggravating factors:

i. The Respondent’s failings related to his signing of the Architects Certificate and his conduct towards the Complainants and ARB following the complaint. They were serious and wide ranging and could not be considered to be isolated or a “one off” lapse of judgement. The Committee considered that this was a pattern of poor conduct over an extended period;

ii. The Respondent’s failings have had a significant effect on the Complainants. They have had to arrange disruptive remedial works at their own expense. Their attempts to resolve matters directly with the Respondent have been largely ignored and they remain out of pocket;

iii. The Respondent has not provided any evidence of any remorse or real insight into the seriousness of his failings and continues to blame the developer for failing to resolve matters. In the view of the Committee, the Respondent has failed to take responsibility for his conduct towards his regulator and the impact of his actions on the wider public interest;

iv. The Respondent had a number of opportunities to provide information to ARB and attempt to rectify the issues with the Complainants. In the view of the Committee, the Respondent has failed to meaningfully engage in the disciplinary process.

44. The Committee has identified the following mitigating factors:

i. The Respondent has a long and unblemished career spanning 45 years;

ii. The Respondent has had some personal difficulties which have impacted on his ability to respond to these matters.

45. Taking into account the aggravating and mitigating circumstances and looking at all the facts in the round, the Committee considered there was a risk of repetition given the lack of appreciation of the issues and the failure to provide evidence of any remedial steps undertaken.

46. The matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation and that of the profession generally and exposed those who relied on his professional certificates to substantial inconvenience and financial loss. The public would expect to rely on a certificate signed by an architect confirming a building had been constructed in accordance with the relevant standards. The public would expect any architect to be satisfied following appropriate inspection that such certification was correct.

47. The Committee considered the attempts by the Respondent to frustrate the investigation of the complaint against him and his failure to co-operate fully with reasonable requests for information made by ARB undermined the reputation of the profession and ARB as regulator. The Committee is mindful of its role to declare and uphold proper standards of conduct and behaviour. The Committee has reminded itself as to its findings regarding the seriousness of all the matters found proved. Having done so, the Committee concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

48. The Committee first considered whether to impose a reprimand. However, having considered the Sanctions Guidance and the factors detailed above, the Committee considered that the nature of the UPC found proved was too serious for such a sanction to be considered appropriate or proportionate. The Committee reminded itself of the findings it had made in relation to UPC and did not consider that the Respondent’s conduct was at the lower end of the scale as it involved a serious falling short in a number of areas of professional conduct.

49. The Committee next considered whether to impose a penalty order and considered that, for the same reasons, such an order was neither appropriate nor proportionate. The UPC is too serious for the imposition of a penalty order.

50. The Committee then considered whether to impose a suspension order. Having carefully considered the sanctions guidance the Committee concluded that such a sanction would be sufficient to uphold the reputation of the profession. The Committee has taken into account the Respondent’s long career and the fact that this was a failing in relation to one project which was compounded by his actions towards his regulator. The Committee considered that the seriousness of the matters found proved were at the higher end of the scale but they were not fundamentally incompatible with remaining as a registered architect and were capable of remedy. Although there had been loss and inconvenience to the Complainants, their safety had not been compromised and the defects were able to be rectified. The Committee considered that the Respondent had abrogated responsibility to his developer client to resolve matters and deal with ARB but it did not consider that this was an entrenched disregard for his responsibilities or obligations and he had made some attempts to engage with the issues. Overall, the Committee considered that the only appropriate and proportionate sanction to uphold the reputation of the profession and protect the public is a suspension for a period of one year. The Committee has had regard to the impact of such a sanction on the Respondent but considers that the public interest outweighs his interests. The Committee considered this sanction was necessary to uphold proper professional standards and the reputation of the profession.

51. The Committee considered carefully whether to impose an erasure order but considered that notwithstanding the ongoing risk identified and the respondent’s limited insight, his conduct is capable of being rectified. The Committee has also taken into account that there has been a significant period of working without apparent incident. As a result, the Committee considered that such a sanction would be disproportionate and punitive given the suitability of a suspension order.

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