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Mr John McCarrick

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

JOHN MCCARRICK (075590G)

Held on

11-15 December 2023

Via

Video Conference

_______________

Present:

Margaret Obi (Chair)
Robert Dearman (PCC Architect Member)
Jules Griffiths (PCC Lay Member)

____________

The Architects Registration Board (“the ARB”) was represented by Mr Felix Keating instructed by Kingsley Napley LLP (“the Presenter”).

Mr John McCarrick (“The Registered Person”) attended the hearing and represented himself.

The Professional Conduct Committee (“the Committee”) determined that the Registered Person is guilty of Unacceptable Professional Conduct (“UPC”).  It did so, having found the following particulars of the Allegation proved:

 

  1. The Registered Person failed to provide adequate terms covering the full scope of their engagement, contrary to Standard 4.4 of the Code;

 

  1. The Registered Person failed to adequately assess whether payment was due to the Contractor in relation to the invoice dated 1 February 2020;

 

  1. The Registered Person failed to adequately advise on the building contract provisions and/or to recommend an appropriate form of contract for the type and scale of project.

 

The sanction imposed by the Committee is a 12 month Suspension Order.

 

Background

 

  1. The Registered Person is a registered architect and owner of JTM Architecture Limited.

 

  1. A complaint received by ARB from Dr Sarah Whetstone (“the Referrer”) formed the basis for the Allegation. The background circumstances, as set out below, are based on the report prepared by Kingsley Napley. In preparing the report, reliance was placed on the witness statement that the Referrer provided to the ARB for these proceedings.

 

The Property

 

  1. The Referrer wanted to extend and completely renovate her cottage on the Isle of Man (“the Property”). The Property was situated next door to the house where the Referrer’s mother lived. The extension was to involve demolishing the galley kitchen and replacing this with a new living room. The Referrer also wanted a Garden Room to be built behind the Property which she intended to use as a studio and office.

 

Engagement of the Registered Person

 

  1. The Referrer states in her witness statement that she found the Registered Person on a website for Isle of Man architects.

 

  1. On 28 September 2018, the Registered Person attended the Property for the first time. During the meeting which took place, the Referrer states that she showed the Registered Person around the Property, including the garden and what would become the site for the Garden Room.

 

  1. On 29 September 2018, the Registered Person emailed the Referrer contractual documents comprising a fee proposal and statutory authority fees. The Referrer responded on 18 October 2018, asking him to clarify a number of points. Within this email, the Referrer asked the Registered Person to confirm his hourly rate for project management. She states that she asked for this information because, during their initial meeting, she told him she would need him to be the Project Manager. By this, she meant to convey that she wanted the Registered Person to be the Project Manager for the entirety of the project.

 

  1. The Registered Person was formally appointed on 1 November 2018. The Referrer states that during her first meeting with the Registered Person, he informed her that he would complete the plans and find the builders, draw up a contract with them, and would oversee the project. The Referrer understood this to mean that he would manage the project and would deal with the builders. She believed he would assess the builder’s invoices. The Referrer states that she also understood his role to include designing the plans for the project, overseeing the planning application submission, and building regulation submission.

 

Project Management

 

  1. The Referrer states that she explicitly discussed the issue of project management with the Registered Person, although it was not provided for in the contract. She states that she assumed project management was included within the fee proposal, as part of Work Stage 5. She states that this had not been discussed because it did not cross her mind that this work would not be included within the contract as she had clarified the hourly rate with the Registered Person.

 

  1. On 18 October 2018, in response to the Referrer’s query about the hourly rate for project management the Registered Person stated that his fee would be £80 per hour. He confirmed he was currently project managing a project nearby.

 

  1. Between October 2018 and March 2019, the Referrer states that she did not have any explicit conversations with the Registered Person about project management; she assumed he was managing the project as discussed. The Referrer states that she expected the Registered Person to assess the contractor’s payments at each payment stage as part of his Project Manager role. She states that she expected him to check that it was fair that she should make the payments.

 

Contract

 

  1. On 10 April 2019, the Registered Person sent the Referrer a quote from a building company (“the Contractor”) dated 1 March 2019. The Referrer liaised directly with the Contractor specifically in relation to the Garden Room to avoid confusion and subsequently received an amended quote. On 29 May 2019, the Registered Person informed the Referrer he would use a standard contract and he would discuss pricing with the Contractor on her behalf.

 

  1. The Registered Person sent the Referrer and Contractor a draft contract document on 12 June On 13 June 2019, the Referrer emailed the Registered Person with some concerns and stated what she expected to be included in the contract.

 

  1. On 21 June 2019, the Referrer and the Contractor received an email copy of the updated contract from the Registered Person. A meeting was arranged to take place on 23 June 2019. The contract was agreed and signed that day. However, the Referrer subsequently noticed that the front page of the document bears the incorrect date of 19 June 2019.

 

Contractor’s Invoices

 

  1. The Referrer states that the Contractor provided five invoices during the work on the Property. In accordance with the contract, each invoice should relate to a stage of the work that had been completed. The Referrer states that she paid each invoice up to and including the fourth invoice. The Referrer initially debated whether to pay the fourth invoice as she felt the roof works were incomplete. However, following a phone call with the Registered Person she agreed to pay the invoice in full as she was concerned the Contractor may walk off the site if she did not pay. The Referrer states that she presumed the Registered Person, in his role as Project Manager, would have seen and assessed the Contractor’s invoices and work.

 

  1. The fifth invoice (Invoice 5) was dated 1 February 2020. The Referrer states that she did not pay this invoice as no plaster work had been completed, and this was the benchmark for Stage 5. She states that the roofing was another reason she did not make payment, as the Contractor had cut into the wrong purlin (load bearing beam), meaning it could no longer support the weight of the roof. She states it was clear to her this was unsafe as the roof was not propped. The Referrer states she also realised she had overpaid, by paying for work that had not been done, such as the Garden Room, for which construction had not yet commenced.

 

  1. On 9 February 2020, the Contractor emailed the Referrer and the Registered Person asking for confirmation of when Invoice 5 would be paid. On 10 February 2020, the Registered Person emailed the Referrer asking about the status of the invoice. On 13 February 2020, the Contractor chased again and asked if there was an issue with the payment application. He also stated that no further work would be undertaken until outstanding payments were received. The Referrer responded on 13 February 2020 saying payment for Invoice 5 was not yet due. The Contractor emailed the Referrer and the Registered Person confirming he had completed works to date above and beyond Stage 5 and asked the Registered Person as Project Manager to assess and comment on whether the works completed to date justified payment for Invoice 5.

 

  1. On 20 February 2020, the Registered Person emailed the Referrer. He stated was satisfied that work was completed to Stage 5. The Referrer states that she did not respond as she did not agree.

 

  1. The Registered Person emailed the Referrer and the Contractor on 25 February 2022 confirming that in his capacity as Project Manager, he was satisfied all work up to Stage 5 had been completed and payment was due. Within the email, the Registered Person asked the Referrer why she had not paid.

 

  1. On 26 February 2020 the Contractor advised that if payment was not received by close of business on 27 February 2020, he would resource his labour elsewhere.

 

  1. The Referrer states that she obtained legal representation and terminated the builder’s services on 28 February 2020.

 

  1. On 8 July 2020, the Registered Person’s contract was terminated.

 

Complaint

 

  1. The Referrer made a formal complaint to the Registered Person on 9 October 2020. She subsequently made a complaint to the ARB on 2 September 2021.

 

Admissions

 

  1. The Registered Person denied the factual particulars of the Allegation at the outset of the hearing. Although the Registered Person made certain concessions during his oral evidence these did not amount to unequivocal admissions and therefore the Panel proceeded on the basis that the factual particulars were denied in their entirety.

 

Evidence

 

  1. The Committee took into account the documentary evidence contained within the hearing bundles which included:

i. Report to ARB prepared by Kingsley Napley

ii. Witness Statements of the Referrer dated 24 February 2023 and 19 June 2023

iii. Inquirer’s Report dated 13 June 2023

iv. Various email correspondence

v.  Building Contract Agreement

vi. JTM Terms and Conditions

vii. Various invoices

viii. Registered Person’s representations

ix.   Registered Person’s Response to Final Hearing Bundle

 

  1. The Committee heard oral evidence from the Referrer, the Inquirer, and the Registered Person.

 

Decision on Facts

 

The Committee’s Approach

 

  1. 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.

 

  1. 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.

 

  1. 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

 

“The Registered Person failed to provide adequate terms covering the full scope of their engagement, contrary to Standard 4.4 of the Code;”

 

  1. There appeared to be no dispute between the parties that the Registered Person had a professional obligation to provide the Referrer with written terms of engagement.

 

  1. Standard 4.4 of the Code of Conduct 2017 (“the Code”) states that an Architect is expected to ensure that they enter into written agreements with clients that adequately cover a range of matters. The matters are listed in Standard 4.4 and include the scope of the work.

 

  1. The Referrer stated in her witness statement and during her oral evidence that during her in-person discussion with the Registered Person on 28 September 2018, it was her understanding that the Registered Person would be taking on the role of Project Manager. She believed that this would include attending pre-construction meetings with the Contractor, site visits, and assessing invoices.

 

  1. The Inquirer stated during his oral evidence that project management is varied in its scope and very often is separate from the role of an architect. He stated that therefore, it is very important that the parties understand the extent of the role and what the responsibilities of a Project Manager will be. The Inquirer noted that the Registered Person’s Service Agreement specified his role as: “Consultancy, Design, Planning Application Submission and Building Regulations Submission”. The Inquirer stated that this is a “narrow scope of work”. He informed the Committee that he would expect a reasonably competent architect to set out all services that would be provided. In the opinion of the Inquirer services such as checking invoices, site visits, and pre-construction meetings are normal services that would fall within the remit of an architect. However, he also stated that these services could fall within the remit of a Project Manager, which is why it is important to specify the terms of engagement at the outset. The Inquirer also stated that it was not clear what services the Registered Person was agreeing to provide.  He went on to state that any additional services to be provided should be spelt out clearly because any failure to record these accurately is likely to cause problems.

 

  1. The Registered Person acknowledged in his written response and during his oral evidence that he provided some support and management of the project during the construction phases. However, this was on an ad hoc basis because there were no terms and conditions relating to project management in the Service Agreement. He stated that his role evolved over time as the Referrer requested additional work outside of these terms which he carried out under clause 5.5 which states: “You may, from time to time, give reasonable instructions to the Architect in relation to the Architect’s provision of the Services. Any such instructions should be compatible with the scope of the Services as defined in the Agreement.”

 

  1. The Committee noted that the Referrer, in her email dated 18 October 2018, asked the Registered Person to confirm his “hourly rate for project management with an estimate of time required”. The Registered Person responded on the same date. He stated:

 

“My hourly rate for project management is £80.00 per hour. I would however, only charge for site visits during the construction period, whereas remote communication with both yourself and the contractor/specialist(s} would not be chargeable. I would also undertake a pre-construction meeting with the successful contractor to ensure that any possible issues have been dealt with accordingly.”

 

Thereafter, the Registered Person charged for project management services and on various occasions referred to himself as the Project Manager in email correspondence with the Referrer and Contractor.

 

  1. The Committee accepted the evidence of the Inquirer. The rationale for his opinions was clear and the Committee had no hesitation in accepting his reasoning.

 

  1. The Committee also accepted the evidence of the Referrer that it was her understanding that the Registered Person would be providing project management services from the outset and throughout the construction phase. Her evidence was measured and clear. However, the Committee also accepted that the Service Agreement supports the Registered Persons’s contention that this fell outside his terms and conditions. Nonetheless, the Registered Person went on to provide project management services. The Committee acknowledged that Clause 5.5 (see above) provided a mechanism for additional services to be provided but these were not defined. In any event, the project management services that were provided fell within the normal scope of the work of an architect and should have been set out clearly. The Committee took the view that the lack of clarity at the outset led to confusion. The Registered Person acted as a Project Manager and did so without setting out the scope of the project management services that he would provide.

 

  1. The terms of the Code are clear; the Registered Person had a duty to provide full and clear terms of engagement in writing at the outset of the project. The onus is on the Registered Person as a registered architect to provide adequate written terms of engagement in accordance with Standard 4.4 of the Code. This includes adequately covering the scope of work. The Committee concluded that in failing to provide clear terms and conditions, the Registered Person caused confusion as to the limitations of his role as the Referrer was led to believe that he was overseeing the project as a whole, including liaising with the Contractor and certifying the works.

 

  1. The Committee concluded that the failure to provide adequate terms of engagement was a failure by the Registered Person to fulfil his requirements under the Code.

 

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

 

Particular 2 – Found Proved

 

“The Registered Person failed to adequately assess whether payment was due to the Contractor in relation to the invoice dated 1 February 2020;”

 

  1. The Building Contract provisions for payments to the Contractor were based on “milestones” rather than a valuation of the works completed at a certain point in time. Therefore, the determining factor with regard to interim payments was the stage the works had reached. Stage 5 is recorded as “Completion of Plastering”.

 

  1. The Referrer specifically asked the Registered Person whether payment was due to the Contractor in relation to the invoice dated 1 February 2020 (Invoice 5). In his reply dated 20 February 2020, the Registered Person stated: “I have taken my time to look at the works undertaken and believe that Astall Construction have completed their works up to Interim Payment Stage 5.” The Registered Person repeated this view in an email to both the Contractor and Referrer on 25 February 2020. In that email he stated: “I feel that the necessary works for the construction, structure and external finishing have been completed in accordance with the Stage 5 payment request”.

 

  1. The Referrer commissioned a report by Quantity Surveyor, Mr RG, which is dated August 2020. The report contains photographs of the Property as of 30 April 2020. The Inquirer reviewed the photographs and stated in his expert report that “it is evident [to me] …that plasterwork is incomplete”. The Inquirer reiterated this during his oral evidence.

 

  1. The Registered Person suggested in his written response to the Final Hearing Bundle that his email responses had been taken out of context and that he was not asked to ‘assess’ whether payment was due under the terms of the Contract. He drew the Committee’s attention to the difference between ‘assess’ and ‘advise’.

 

  1. The Committee did not accept the Registered Person’s restricted interpretation of Particular 2. It was clear from the face of the Referrer’s email that she was asking the Registered Person for his professional opinion. Whether the Registered Person was the Project Manager for the duration of the construction phase or on an ad hoc basis, he provided a response which indicated that he was applying his professional judgment. However, the Registered Person accepted, during his oral evidence, that he did not consider the contract when he informed the Referrer that Invoice 5 was due to be paid. He stated that his opinion was based on the fact that the Building Inspector was satisfied that work on the site could continue.

 

  1. The Committee took the view that it would have been open to the Registered Person to decline to offer an opinion on the basis that it was outside the scope of his engagement. However, he chose to respond, and in doing so, he provided the Referrer with his assessment as to whether Invoice 5 should be paid. This assessment was clearly inadequate because the plaster work had not been completed.

 

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

 

Particular 3 – Found Proved (Limb 1); Found Proved (Limb 2)

 

“The Registered Person failed to adequately advise on the building contract provisions and/or to recommend an appropriate form of contract for the type and scale of project.”

 

  1. The Referrer stated in her witness statement that she sought the advice of the Registered Person as to the appropriate form of building contract. On 13 June 2019, she emailed the Registered Person regarding provisions she would like to have included, such as stage payments and retention. She denied that she was given the option of a Joint Contracts Tribunal (JCT) or a New Engineering Contract (NEC).

 

  1. The Inquirer stated in his report that he was not provided with any evidence that the Registered Person advised the Referrer that her Building Contract:

i. Omitted any provision for the input of an architect, project manager or contract administrator to address matters such as extensions of time, practical completion, instructions, or certification of the works;

ii. Included a provision for milestone payments which may not reflect the actual value of works properly executed which could potentially present risks to both parties to the contract;

iii. Did not include a number of provisions that are considered standard to building contracts, such as, (but not limited to):

 

  • liquidated and ascertained damages,
  • insurance for the works and existing building,
  • a mechanism for practical completion, dispute resolution in the event of a dispute,
  • a role for a contract administrator to determine matters such as extensions of time and practical completion;
  • Included a mechanism for the release of all retention 6 months prior to practical completion when the recognised practice is for the final release of retention and the expiry of the defects liability to coincide.

 

The Inquirer stated that in the absence of a contractual definition of a completion date or any contractual mechanism to determine how completion was to be achieved, the Referrer would be required under the contract to release the 2.5% retention 6 months after the completion date, without any precondition that the works were properly executed. Therefore, there would be no financial incentive for the Contractor to return to site to rectify any defects during either the first six month or second six month periods of the Defects Liability Period.

 

  1. The Inquirer stated in his report and during his oral evidence that the appropriate form of contract for this project would have been a JCT contract and that, whether the Registered Person was providing the services of a project manager or not, he should have recognised that the “bespoke” form of contract did not contain the provisions normally associated for works of this nature.

 

  1. The Committee accepted the evidence of the Inquirer. The rationale for his opinions was clear and the Committee had no hesitation in accepting his reasoning.

 

  1. The Registered Person informed the Committee that he obtained the Building Contract from the Law Depot website. By the end of his oral evidence, it became clear that the Registered Person had not adequately advised the Referrer about the need to include fundamental aspects of standard building contracts. The Registered Person accepted that certain terms (as identified by the Inquirer) were missing from the Builders Contract and that he did not advise the Referrer of the risks in excluding these terms. The Registered Person also accepted that he was not qualified to draft bespoke contract provisions. Advice on the standard terms of the Builders Contract should have been provided so that the Referrer was left in no doubt as to the potential risks associated with proceeding with the work in the absence of appropriate safeguards for both parties.

 

  1. For these reasons, the Committee found Limb 1 of Particular 1 proved.

 

  1. The Committee acknowledged that the JCT minor works contract may not have been the only appropriate form of contract available for the work to be undertaken at the Property as it contains provisions for a contract administrator which the Referrer may not have wanted. An alternative may have been a JCT Home Owners Contract which would have been between the Referrer and the Contractor only. The Committee noted that the Registered Person’s handwritten note, dated 18 June 2019, indicates that the issue of a JCT or NEC contract was raised, and next to the references to these contracts are the words: “Not Required”. Although the Referrer had no recollection of a JCT or NEC contract being mentioned the Committee concluded that it was likely that it was discussed. However, the Registered Person stated, during his oral evidence, that he did not provide the Referrer with a copy of either of these contracts and it appears that they were ruled out because the Referrer was happy with a “simple contract”. The Registered Person acknowledged that he should have been more ”persistent” and pro-active.

 

  1. The Committee concluded that referring to a JCT or NEC without providing adequate advice was wholly insufficient given the nature and scale of the project.

 

  1. For these reasons, the Committee found Limb 2 of Particular 3 proved.

 

Decision on Unacceptable Professional Conduct (UPC)

 

The Committee’s Approach

 

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

 

  1. 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.

 

  1. 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.

 

Findings of UPC

 

  1. The Committee found at the fact-finding stage that the Registered Person failed to provide the Referrer with terms and conditions which met the expectations set out in Standard 4.4. He also failed to adequately assess whether payment was due to the Contractor in relation to Invoice 5, failed to advise on the building contract provisions, and failed to recommend an appropriate form of contract for the type and scale of the project.

 

  1. The Committee accepted the evidence of the Inquirer that the Registered Person’s actions (in respect of each of the factual particulars) fell far below the standards expected of a reasonably competent architect. 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 finds that the Registered Person’s conduct amounts to UPC in respect of Particulars 1, 2, and 3 both individually and cumulatively.

 

Terms of Engagement

 

  1. The Registered Person had a duty to be aware of and to follow the terms of the Code. Standard 4.4 sets out clearly what the terms of engagement are expected to include. Compliance with these expectations protects the client, the architect, and the public and is not onerous or difficult to achieve. It is fundamental to professional work as a registered architect that adequate terms and conditions, covering the full scope of the work to be undertaken are communicated clearly to the client, in writing, at the outset of a project. If during the project, there are significant changes to the scope of work this should also be communicated clearly and agreed with the client in writing. A failure to do so, has the potential to cause delays, undue stress and anxiety, and financial loss. In the absence of a good reason, the failure to provide adequate terms of engagement is serious.

 

  1. The Registered Person failed to provide written terms which sufficiently described the scope of any project management services, and as a consequence it was unclear what his obligations were under the terms of the Service Agreement. This caused confusion as the Referrer was led to believe that the Registered Person’s role included overseeing the project generally as well as assessing all invoices received from the Contractor. The confusion was compounded because although these activities fell outside the terms of the agreement the Registered Person did provide some of these services.

 

  1. The Committee also 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.

 

 

Invoice 5

 

  1. 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 accordance with the terms of their engagement.

 

  1. The Registered Person was specifically asked to assess whether Invoice 5 was due for payment. The Registered Person was aware at the time, that there was a dispute between the Referrer and Contractor as to whether the stage had been reached under the Building Contract which justified payment, and that it was important for this to be resolved as the Contractor was threatening to remove his labour from the project. The Building Contract specifically referred to the payment being due upon completion of the plastering. Instead of referring to the contract the Registered Person based his assessment on the fact that the Building Inspector was satisfied that the work on the site could continue. The Committee concluded that this was a wholly inadequate basis for assessing whether the Contractor was entitled to receive the milestone 5 payment.  It was a basic error which demonstrated a lack of due care and diligence. It was also a serious error because it exposed the Referrer to the risk of overpaying the Contractor for the work done by that stage of the project.

 

  1. For the same reasons, as stated in paragraph 63 above, the Committee concluded that the wider public interest required a finding of UPC.

 

Building Contract Provisions and Form of Contract

 

  1. The Registered Person failed to advise the Referrer of the risks associated with the Building Contract given that standard terms for the type of project being undertaken were not included.  This left the Referrer in a vulnerable position, particularly as there were no provisions in the Building Contract relating to Liquidated and Ascertained Damages, and no defined contract completion date.  The inadequacy of the contract was further compounded by the contractual release of the final 2.5% retention 6 months after the completion date but before the end of the defects period which was 12 months after the completion date. The Registered Person also failed to advise on the appropriate form of contract.

 

  1. Although the contract failings relate to a single instruction, they represent a serious departure from Standard 6.1 of the Code because the potential consequences were so serious. The foreseeable consequences included more time and money (including consequential delay in resolving disputes), stress and inconvenience, and a prolonged period of uncertainty. As the Referrer was not adequately informed of the risks associated with the contractual terms and form of contract she was unable to make an informed choice about whether to proceed with the project at that time based on the contractual terms being offered or make alternative arrangements.

 

  1. The Referrer was entitled to expect the Registered Person to adhere to the high standards required of him. The Committee concluded that the Registered Person’s conduct fell significantly and materially below the standard expected of a registered architect.

 

  1. For the same reasons, as stated in paragraph 63 above, the Committee concluded that the wider public interest required a finding of UPC.

 

Decision on Sanction

 

The Registered Person’s Evidence

 

  1. The Registered Person chose to give evidence at the sanction stage. He provided the Committee with testimonials from ‘happy’ clients, a Certificate confirming that he obtained Project Manager Accreditation on 29 May 2020 which was issued by the Institution of Civil Engineers (ICE) and a screenshot from the Best Business Guide which referred to JTM Architecture Ltd.

 

  1. The Registered Person stated that the factual findings relate to an isolated incident. However, he acknowledged that he should have been more proactive in communicating the scope of his services. He also acknowledged that he made an error in assessing Invoice 5 and failing to adequately advise the Referrer about the contractual terms of the project. He informed the Committee that no previous complaints have been made to the ARB about his practice and he has “no previous convictions.” He stated that he has been involved in enhancing the reputation of architects through Construction Isle of Man and his membership of the Society of Architects.

 

  1. The Registered Person, in response to questions from the Committee, stated that he is the only person that provides architectural services within JTM Architecture Ltd. He stated that he is currently working on approximately 10-11 projects and (save for one project which pre-dates the Referrer’s complaint to the ARB) he has RIBA contracts in place. He informed the Committee that none of the current projects are at construction stage. However, if he was instructed to provide services at that stage he would recommend a JCT contract. He informed the Committee that he acquired the Project Manager Accreditation following a 1-week in-person course and was motivated to undertake the course in the interests of his own professional development. He went on to state that there was a shortage of NEC project managers in the Isle of Man and he wanted to enhance his skill level. He acknowledged that his architecture qualification involved project management, but he believed that the accreditation course was at a higher level.

 

The Committee’s Approach

 

  1. The Committee took into account its previous findings and the submissions made by the Presenter and the Registered Person. 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. The Registered Person outlined possible mitigating factors and invited the Committee to impose no sanction higher than a financial penalty.

 

  1. 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.

 

  1. 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

  1. The Committee noted that the Registered Person was unable to articulate the difference between a JCT contract and a NEC contract. His inability to explain what, if any, difference there was between these two contracts undermined his assertion that in future he would recommend a JCT contract. The Committee was left with the impression that the Registered Person would recommend a JCT contract based on a belated acceptance of the Inquirer’s evidence but had not taken the opportunity to reflect on this aspect of his practice in advance of the hearing. The Committee acknowledged that the Registered Person had demonstrated some insight which appeared to develop during these proceedings. However, the Committee was not persuaded that the Registered Person had acquired sufficient meaningful insight to the extent that the failures identified in this case were unlikely to re-occur.

 

  1. The Committee was mindful that in his response to the Final Hearing Bundle the Registered Person stated:

 

“As a conscientious Architect I recognised from this project that the Project Manager role needs to be thoroughly implemented and not shared unless the role is stringently defined. In order to maintain continuous professional development, I undertook and passed the NEC4: ECC Project Manager Accreditation course in 2020 so that I was able to reevaluate the Project Manager definitions and responsibilities which come with the role.”

 

However, during his oral evidence, he stated that he confirmed that he had undertaken the accreditation course before the Referrer made her complaint to the ARB. The inconsistency was not explained. Furthermore, there was only limited evidence that the Registered Person had taken appropriate remedial steps.

 

  1. The Committee also noted that the testimonials appeared to be taken from the JTM Construction Ltd website and therefore were not provided specifically for the purpose of these proceedings. Furthermore, the majority of the testimonials related to design and planning services rather than the terms of engagement at the outset of a project and ongoing project management during the construction phase. As a consequence, the testimonials were afforded limited weight.

 

  1. In light of the above, in determining what sanction, if any, to impose the Committee identified the following aggravating factors:

 

i. The absence of sufficient insight;

ii. The absence of sufficient evidence that the Registered Person is able to acknowledge his failings;

iii. The absence of any evidence that the Registered Person has taken appropriate steps towards remediation.

 

  1. The Committee noted that the factual findings relate to a single instruction. However, it determined that it would not be appropriate to characterise this as an ‘isolated incident’ given that the failings were clearly based on the Registered Person’s method of working which had persisted for some time.

 

  1. The Committee identified the following as mitigating factors:

 

i. The Registered Person expressed remorse and apologised for his conduct which the Committee accepted as genuine;

ii. The Registered Person has no previous disciplinary history.

 

 

No Sanction

 

  1. 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 Sanctions Guide 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.”

 

  1. 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

 

  1. 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 Sanctions Guide which indicate when a Reprimand may be the appropriate and proportionate sanction.

 

  1. The Committee noted that although no harm was caused to the Referrer, she was exposed to the risk of harm. In the absence of sufficient insight and remediation, the Committee was unable to exclude the possibility 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.

 

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

 

Penalty Order

 

  1. The Committee considered whether the imposition of a Penalty Order would effectively reinforce the importance of complying with the Code. 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.

 

  1. 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 conduct and behaviour.

 

Suspension Order

 

  1. 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’ during the suspension period, which would therefore provide a degree of protection to the public.

 

  1. The Committee took into account the factors set out in paragraph 6.4.3 of the Sanctions Guide which indicate that a suspension order may be the appropriate and proportionate sanction. The Committee concluded that the following factors apply to the circumstances of this case:

 

i. The failing or conduct is so serious that a reprimand or penalty order would be insufficient to protect the public or uphold public confidence in the profession;

 

ii. The behaviour is not fundamentally incompatible with continuing to be an architect;

 

iii. There is a lack of sufficient insight;

 

iv. The conduct is capable of being rectified;

 

v.  There is no evidence of repetition of similar behaviour since the incident;

 

  1. There was insufficient evidence before the Committee to support a finding that the issues were unlikely to be repeated. However, there was also no evidence that the Registered Person is unwilling to resolve or remedy his failings. The Committee concluded that given that the Registered Person has engaged with these proceedings and taken some steps towards remediation a Suspension Order would be sufficient to maintain public confidence in the profession and the regulatory process.

 

  1. Having determined that a Suspension Order meets the objectives of public protection and upholding the wider public interest the Committee determined that erasure would be disproportionate. In reaching this conclusion 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 or the wider public interest. The Committee decided that the Registered Person’s case does not fall into this category for the reasons stated above.

 

 

 

Length of Order

 

  1. The Committee did not consider that the Registered Person should be suspended for the maximum period of 2 years. It concluded that the period of suspension should strike a proportionate balance between upholding the reputation of the profession and the Registered Person’s right to practise whilst using the title “Architect”. The Committee therefore decided that a period of suspension for 12 months was the appropriate and proportionate order. This period was sufficient to mark the seriousness of the Registered Person’s conduct and the absence of sufficient remediation.

 

  1. The Committee had regard to the impact a Suspension Order may have on the Registered Person. The Committee noted that the Registered Person stated that removal of the right to use the title “Architect” would have no impact on his business or practice. In any event, the Committee concluded that the Registered Person’s interests were significantly outweighed by the Committee’s duty to give priority to the significant public interest concerns raised by this case.

 

  1. In these circumstances, the Committee decided that the only appropriate and proportionate order is a 12 month Suspension Order.

 

Return to the Register

 

  1. The Committee was mindful that when the 12-month Suspension Order expires the Registered Person will automatically be eligible to return to the Register on payment of the relevant registration fee. Although the Committee has no power to impose any restrictions on the Registered Person’s re-admission, it took the view that he should consider the following:

 

i. Reflect on the Committee’s factual findings; and

ii. Take sufficient steps to understand the appropriateness of various standard contracts in the context of his professional obligations.

 

  1. That concludes this determination.