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MR JOSEPH EDWARD MARTIN DUNNE

 

 

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

JOSEPH EDWARD MARTIN DUNNE (053193F)

 

Held via video conference on

7-9 May 2024

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Present:

Emma Boothroyd (Legally Qualified Chair)
David Kann (Committee Architect Member)
Jules Griffiths (Committee Lay Member)

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The Architects Registration Board (“the ARB”) was represented by Mr Jean-Jack Chalmers (“the Presenter”) instructed by Kingsley Napley LLP.

Mr Joseph Dunne (“the Registered Person”) did not attend the hearing and was not represented.

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 of engagement, contrary to Standard 4.4 of the Architects Code

(2) The Registered Person failed to give adequate advice regarding an appropriate building contract for the project

(3) The Registered Person failed to keep the client adequately informed of matters affecting the cost of their project

(4) The Registered Person failed to provide adequate drawings in line with relevant professional and/or technical standards

(5) The Registered Person failed to carry out adequate inspections of the basement

(6) The Registered Person failed to adequately and appropriately respond to a complaint, contrary to Standard 10 of the Architects Code

(7) The Registered Person failed to cooperate fully and promptly with ARB, contrary to Standard 11.1 of the Architects Code

(8) The Registered Person failed to promptly notify ARB of his change of address, contrary to Standard 11.2 of the Architects Code

(9) The Registered Person failed to provide ARB with evidence of adequate Professional Indemnity Insurance, contrary to Standard 8 of the Architects Code and that by doing so, he acted in breach of Standards 2.1, 4.1, 4.4, 6.1, 6.3, 8.1, 8.4, 10.2, 11.1 and 11.2 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

 

The sanction imposed by the Professional Conduct Committee is an Erasure order.

  1. The Registered Person faced the following allegation:

 

That he is guilty of Unacceptable Professional Conduct (UPC) based on the following particulars:

 

  1. The Registered Person failed to provide adequate terms of engagement contrary to Standard 4.4 of the Architect’s Code.

 

  1. The Registered Person failed to give adequate advice regarding an appropriate building contract for the project.

 

  1. The Registered Person failed to keep the client adequately informed of matters affecting the cost of their project.

 

  1. The Registered Person failed to provide adequate drawings in line with relevant professional and/or technical standards.

 

  1. The Registered Person failed to carry out adequate inspections of the basement.

 

  1. The Registered Person failed to adequately and/or appropriately respond to a complaint, contrary to Standard 10 of the Architects Code.

 

  1. The Registered Person failed to cooperate fully and promptly with ARB, contrary to Standard 11.1 of the Architects Code.

 

  1. The Registered Person failed to promptly notify ARB of his change of address, contrary to Standard 11.2 of the Architects Code.

 

  1. The Registered Person failed to provide ARB with evidence of adequate Professional Indemnity Insurance, contrary to Standard 8 of the Architects Code.

 

Preliminary Matters

 

2. As a preliminary issue, the Committee considered whether to adjourn matters or proceed in the absence of the Registered  Person. The Committee took into account the proceeding in absence bundle submitted by ARB. In making that decision the Committee took account of the representations made by the Presenter which in summary stated that the rules on service had been complied with and there was no compelling reason to adjourn proceedings and there was a public interest in matters proceeding. He submitted that there was no suggestion that the Registered Person would attend any adjourned hearing as he had made it perfectly clear that he did not wish to participate in the process and the Committee could conclude he had voluntarily waived his right to attend. He further submitted that there was a general public interest in the timely disposal of proceedings and an adjournment would serve no useful purpose.

3. 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.

4. The Committee noted that the relevant Notice of Hearing and supporting documentation was served on the Registered Person at his registered email address on 19 February 2024. In addition, the bundle was posted to his registered business address on the same date. The Committee had regard to Rule 7 and 9 of the Professional Conduct Committee Rules 2022 (‘the Rules’) and Part 3 and Part 4 of the Architects Act 1997. The Committee was satisfied that the Registered Person has been properly served with the required notice of this hearing both via email and post. The Committee noted that the link to join the hearing had been sent to the Registered Person’s registered email address with instructions to enable him to participate.  The Committee noted that the Registered Person had confirmed he was aware of the hearing taking place and had indicated an intention not to attend. In the circumstances the Committee was satisfied that the Registered Person had been properly served with the notice of the hearing and had been given an opportunity to appear before the Committee.

5.The Committee then went on to consider whether to proceed in the absence of the Registered Person pursuant to Rule 18 of the Rules. The Committee took into account all of the circumstances put forward by the Presenter on behalf of ARB. In particular, the Committee also considered whether there was any reason why the hearing would be unfair if it proceeded.

6. 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 Registered Person has been given an opportunity to appear before the Committee to present his case and that he had chosen not to do so. He was made aware of the hearing and the Committee noted the extensive attempts the Hearings Officers had made to email the Registered Person to encourage him to engage. The Committee noted that on 11 April 2024 the Registered Person had written to ARB in the following terms, “We have made our position abundantly clear that we will not participate in nor attend, nor supply any information to the Hearing on 7-10 May 2024.”

7. The Committee concluded that the Registered Person had chosen to voluntarily absent himself and there was no realistic prospect that he would attend any adjourned hearing. The Committee could identify no good reason to adjourn. There were witnesses ready to give evidence and any delay or adjournment would be inconvenient and possibly have an effect on recollections of events. The allegations against the Registered Person are serious and the Committee determined it is in the public interest that they are dealt with expeditiously.

8. The Registered Person has not requested an adjournment and there is no reason to suppose he will engage at any future hearing. Although there may be some disadvantage to the Registered Person if he is unable to present his case in person, he has been made aware and nevertheless chosen not to attend. In balancing the interests of the Registered Person 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 Registered Person.

 

Background

9. The Registered Person is a registered architect and co-director of “Endymion Architects Limited” (the Practice). The Referrer appointed the Practice in January 2018 to assist with the modernisation and extension of his flat in north London. The original brief was to obtain planning permission for the erection of a ground floor single storey rear extension. This was originally planned to take place in conjunction with the Referrer’s neighbours plan to extend their property along the line of a party wall.

10. The Registered Person was the architect with responsibility for the project. The Practice submitted a planning application in July 2018 which was approved on 26 September 2018. Thereafter, the Referrer appointed Carpenters Corner Limited (CCL) as the contractor under a “negotiated contract” arranged by the Registered Person. The Referrer, CCL and the Registered Person signed the contract on 3 September 2019.

11.Work began on site on the 5 September 2019. The neighbours had not begun their project. The Referrer says that he felt pressured by the Registered Person and the contractor to expand the project to include a basement, which he had previously been considering, to best utilise the time before the neighbours were ready. The Referrer says he was “reluctant” to agree this but by late September 2019 he agreed to the addition of a basement. The Registered Person provided a cost estimate for the basement on 19 September 2019 and produced drawings in relation to this aspect of the project for submission to building control.

12. The neighbours ultimately did not proceed with their project which had implications for the Referrer with regard to his side of the party wall. Works continued with the basement and other alterations of the flat throughout 2019 and into 2020. The works were delayed by the pandemic. It appears that works were substantially complete in January 2021 although there were outstanding issues in relation to obtaining a building control final certificate.

13. In June 2021 the Referrer complained of damp in the basement and reported this to the Registered Person. In addition, the Referrer sought advice relating to the remaining issues with the party wall. On 20 July 2021 the Registered Person indicated that the contractor would have to undertake opening-up works to assess the damp in the basement. He stated that he was never engaged in a supervisory role for the project.

14. In October 2021, the Referrer approached a specialist waterproofing contractor, at the Registered Person’s suggestion, to provide advice relating to the water ingress into the basement. Following this, on 6 November 2021 the Registered Person suggested that a specialist company was engaged to carry out the remedial works. On 15 November 2021 the Referrer sent an email to the Registered Person and set out that as the basement was designed and inspected by him, he should take steps to remedy the position.

15. On 12 January 2022, the Referrer submitted a formal complaint to the Practice. On 18 January 2022, the Registered Person provided an acknowledgement and a partial response and indicated that a further response would be forthcoming within 30 days. The Referrer sent emails chasing a response on 25 January and 3 March 2022 but no reply was received. On the 11 July 2022, the Referrer submitted a complaint to ARB.

16. ARB wrote to the Registered Person at his registered email address on 16 December 2022. The letter requested a response to the Referrer’s complaint and details of the Registered Person’s professional indemnity insurance by 6 January 2023. A reminder was sent via email on 4 January 2023 that the response was due. A letter was sent to the Registered Person’s postal address on the register on the 16 January 2024 which was returned undelivered. A search was undertaken at Companies House on 1 February 2023 for the Registered Person and it was discovered that the address was not the same as registered with ARB. The Registered Person was invited to update his registered address. No response was received to any of this correspondence.

17. In April 2024 the Registered Person submitted some representations to ARB and in the letter set out that the basis of the Referrer’s evidence is false and designed to pursue a false narrative. The Registered Person returned an acknowledgement of service form which set out that all of the allegations were denied. The Registered Person has provided no other documentation in support of his denials.

 

Decision on Facts

18. In reaching its decisions, the Committee has carefully considered the submissions of the Presenter, together with the documentary evidence presented to it in the Report of the ARB’s Solicitor together with the exhibits attached. The Committee heard live evidence from Mr Robert Porter, the Referrer, Mr Matthew Harding, Investigations Officer at ARB and Mr Samuel Morley, the Expert Witness.

19. 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 the ARB and that the civil standard applies, namely proof on the balance of probabilities. It has drawn no adverse inference from the non-attendance of the Registered Person and noted that he has denied each of the factual allegations.

 

Particular 1 – Found Proved

 

  1. The Registered Person failed to provide adequate terms of engagement to the Complainant contrary to Standard 4.4 of the Architect’s Code.

20. The Committee accepted the evidence of the Referrer that he was only ever sent a proposal in an email dated 13 December 2017 which set out an approximate timescale and a schedule of fees. The email was brief and was headed “Endymion Architects proposal.” The Committee accepted the evidence of the Referrer that he received no other document regarding terms of appointment or fees. The Committee considered that the information contained within the email of 13 December 2017 was insufficiently detailed and did not cover all of the requirements of Standard 4.4 of the Code. In particular, the Committee noted that the document did not adequately cover:

i.  the contracting parties

ii. the full scope of the work

iii. who will be responsible for what

iv. any constraints or limitations on the responsibilities of the parties

v. the provisions for suspension or termination of the agreement, including any legal rights of cancellation

vi. a statement that the Registered Person had adequate and appropriate insurance cover as specified by ARB

vii. the existence of any Alternative Dispute Resolution Schemes that the contract is subject to, and how they might be assessed

viii. that the Registered Person had a complaint handling procedure available on request.

 

The Committee was satisfied that the Registered Person had not provided adequate terms of appointment which covered all of the required elements as required by Standard 4.4 of the Code.

 

Particular 2 – Found Proved

 

  1. The Registered Person failed to give adequate advice regarding an appropriate                       building contract for the project.

 

  1. The Committee considered that this was supported by the contemporaneous documentation. In an email dated 10 April 2019 the Referrer states:

 

Can you let me know the plan for tendering at this stage? Are you still recommending we do that? In view of rising costs I need to ensure we obtain the best independent quote. [X] at 41a is using a project manager who may also be in the running. Your advice would be appreciated on the best way forward.”

 

The Registered Person replied on 16 April 2019:

 

“We favour a negotiated contract over the tendering process… We recommended our own builder [on another project] at £60,000 but the Client appointed their own “builder” at £40,000 on costs grounds and it went disastrously wrong….We will only undertake the work with a tried and trusted builder such as Carpenters Corner Ltd…from our point of view CCL are the right fit for your project.

 

Project Management

 

[X] needs to be aware this is not the way forward. This generally only functions properly on larger schemes of £1m plus. Avoid, could all end in tears.

 

Our recommended way forward is for CCL/Lobsang to do both projects to an agreed timetable and costs. We can assist in this regard.”

 

The Committee considered that it was clear from this correspondence that the Registered Person advised the Referrer to engage CCL on a negotiated contract with the assistance of the Registered Person in a project management capacity.

 

  1. The Referrer queried with the Registered Person why he had been charged for the tendering process when this had not taken place. The Registered Person confirmed that the charge related to the negotiations with CCL. In these circumstances the Committee was satisfied that the Registered Person was involved in negotiating the terms of the contract and was providing advice to the Referrer about the suitability of such a contract. The Committee noted that the Registered Person also signed the contract which gave the impression that he was a party to it, although no duties were set out.

 

  1. The Committee accepted the evidence of Mr Morley that this contract was not adequate for the works as it did not contain many of the provisions essential for the control of costs, quality, safety and time that are found in published standard form building contracts. The Committee considered that this bespoke contract failed to make the role of the Registered Person clear, particularly in relation to the role of contract administrator. The Committee considered that there was no evidence that the Registered Person provided adequate advice about the suitability of this bespoke contract or the risks of entering into such a contract without the protection of standard terms as found in other published contracts should the work overrun in terms of time and costs. There were no provisions within this contract to manage key aspects of the project or protections for the Referrer should a dispute arise. The Committee accepted the evidence of the Referrer that no alternatives were explained to him.

 

  1. The Committee considered that there was a responsibility, on the Registered Person as the professional, to advise the Referrer on the appropriate type of contract. The Committee considered that this duty was particularly acute when the Referrer was paying the Registered Person to negotiate a contract on his behalf. The Committee concluded that the Registered Person had failed to give adequate advice on the appropriate contract to be used for this project.

 

Particular 3 – Found Proved

 

  1. The Registered Person failed to keep the client adequately informed of matters affecting the cost of their project.

 

  1. The Committee noted the oral evidence of the Referrer who said that he felt that the costs were out of his control. The Referrer told the Committee that he was asked to pay for materials by the contractor that he felt ought to have been included within the contract price. The Referrer also told the Committee that the fees charged for each site visit increased from £175 to £375 as the Registered Person had moved a considerable distance away from the site and now had to travel further. The Referrer stated that he was never advised of this increase in advance and this was applied retrospectively to site visits that had been undertaken before he was informed of the intention to charge an uplifted fee. The Referrer stated that the project went significantly over the estimated fees and costs and he has been left with little resources to put right the remaining issues.

 

  1. The Committee noted that the letter dated 26 September 2019 from the Registered Person to the Referrer advises of the increase to the fees to include the addition of the basement. The letter sets out the original quoted fee of £7,225 and then further costs of £4,875 for uplifted site visit fees and revisions to drawings. It was explained within that letter that the uplifted site visit fee was to reflect the complexity and extent of the project. Attached to that letter was an invoice for three site visits at the uplifted fee of £375 which had already taken place and before the uplift for site visits was communicated to the Referrer.

 

  1. The Committee considered that in respect of the uplifted fee for site visits, this had not been adequately communicated to the Referrer in advance. The Committee considered that the information regarding the site fee increase should have been communicated to the Referrer before the visits had taken place and not applied retrospectively to site visits undertaken before the basement plan was agreed.

 

  1. The Committee accepted the evidence of Mr Morley relating to costs advice. Mr Morley stated that the Registered Person should have provided a financial appraisal at the outset of the project and cost reporting at regular agreed intervals. Mr Morley explained that the schedule of works produced by the Registered Person should have been incorporated into the contract and costs advice should subsequently have been given within the overall context of the project. There was no evidence before the Committee that the Registered Person had undertaken any regular cost reporting to the Referrer. Mr Morley was also of the opinion that the Registered Person had a duty to administer the contract and provide regular cost reporting to the Referrer.

 

  1. The Committee was satisfied on the evidence that the Registered Person had failed to keep the client adequately informed of matters affecting the cost of their project.

 

Particular 4 – Found Proved

 

  1. The Registered Person failed to provide adequate drawings in line with relevant professional and/or technical standards.

 

  1. The Committee accepted the evidence of Mr Morley in this regard. In his report dated 8 December 2023 Mr Morley set out a number of areas in which he considered the drawings were inadequate. In his oral evidence Mr Morley maintained, that in his view, the drawings had shortcomings and were not in line with best practice and he explained that on their own these were not serious failings. However, Mr Morley told the Committee that the basement waterproof design drawings were inadequate and not in line with the relevant standards as they detailed a system that was not suitable for use below ground. Mr Morley explained that the Registered Person had adapted the manufacturer’s standard drawing which was for a system intended to deal with above ground rising damp in masonry walls and had crossed out the text indicating the external ground level. Mr Morley’s evidence was that this was a serious failing, and the drawing detailed a design which was “bound to fail”.

 

  1. The Committee considered that it was reasonable to conclude that the Registered Person had adapted this design and had produced a drawing for a design that was not suitable for basement waterproofing. The Committee considered that this drawing was not in line with professional standards as it was for a design that the Registered Person should have been aware was outside the manufacturer’s intended use and was not suitable for the basement waterproofing. The Committee considered that as an experienced architect the Registered Person should have been aware of the limitations of this design.

 

Particular 5 – Found Proved

 

  1. The Registered Person failed to carry out adequate inspections of the basement.

 

  1. The Committee accepted the evidence of Mr Morley in this regard. In his report he stated,

 

“I would have expected the Registered Person to have carefully inspected the basement waterproofing as it would have been critical in the creation of a habitable space ….. Based on the information that I have been provided with, I consider that the frequency of site visits were inadequate. Furthermore, I consider the reports from site visits were also inadequate and did not follow guidance set out in the RIBA Job Book …. I have seen no evidence that the Registered Person inspected the basement waterproofing.”

 

In his oral evidence Mr Morley told the Committee that the number of site visits were inadequate for the inspection of the basement even on the basis that there were a number of site visits that were undertaken for which there are no records available.

 

  1. There was no evidence before the Committee the Registered Person had carried out any inspection of the basement waterproofing during construction. The Committee noted that there was limited information in the form of site visit notes as the Registered Person had not provided any documentation to the Committee. In these circumstances, the Committee considered that the Registered Person had failed to carry out adequate inspections of the basement.

 

Particular 6 – Found Proved

 

  1. The Registered Person failed to adequately and/or appropriately respond to a complaint, contrary to Standard 10 of the Architects Code.

 

  1. The Committee noted the evidence of the Referrer and the letter dated 12 January 2022 sent by him to the Registered Person. The Committee noted that the letter was clearly headed “Formal Complaint.” The Committee considered that it was plain from reading the letter that the Referrer was raising a complaint and it set out 31 points. The Committee noted that the Registered Person responded on the 18 January 2022 and responded to only two of the points raised. The email confirmed that a further response to the “construction issues” would follow within 30 days.

 

  1. The Committee noted that the Registered Person failed to respond to the Referrer, despite chasing emails. In these circumstances the Committee was satisfied that the Registered Person had failed to fully and adequately respond to the Referrer’s complaint as he was required to do by the Code.

 

Particulars 7, 8 and 9 – Found Proved

 

  1. The Registered Person failed to cooperate fully and promptly with ARB, contrary to Standard 11.1 of the Architects Code.

 

  1. The Registered Person failed to promptly notify ARB of his change of address, contrary to Standard 11.2 of the Architects Code.

 

  1. The Registered Person failed to provide ARB with evidence of adequate Professional Indemnity Insurance, contrary to Standard 8 of the Architects Code.

 

  1. The Committee accepted the evidence of Mr Harding, Investigations Officer at ARB who stated that on the 16 December 2022 he sent an email to the Registered Person requesting a response to the complaint that had been made by the Referrer by 6 January 2023. Mr Harding sent a further email on 4 January 2022 to remind the Registered Person that his response was due. Within that letter a request was made for evidence of the Registered Person’s professional indemnity insurance to be provided to ARB. No response has been received from the registered Person to that letter. The Committee noted the extensive efforts made by Mr Harding to bring this complaint to the attention of the Registered Person and it also had regard to the Companies House search which demonstrated that the Registered Person had changed his address for the Practice in February 2023. The Committee also noted that a postal letter sent to the Registered Person’s registered address was returned as undelivered.

 

  1. The Committee considered that it was clear from the evidence that the Registered Person had not co-operated with ARB’s investigation as required by the Code. To date he has not provided any response to the complaint. The Registered Person has not produced the information requested by ARB that would assist in its investigation. In his letter of 11 April 2024, the Registered Person has expressed his position not to provide any information to this Hearing. The Registered Person has not produced any evidence of his professional indemnity cover, although indicating that such cover is in place. This is despite recent requests by the Hearings Officer to provide this information.

 

  1. The Committee was satisfied that the Registered Person had changed his practising address given the information provided to Companies House for Endymion Architects. The Registered Person has not updated his address on the ARB register as required. The Registered Person has indicated that this was not necessary as he still owns the property that is registered. The Committee noted that mail was returned to ARB as undelivered that was sent to that address. It was clear to the Committee that the Registered Person has not complied with his responsibilities to cooperate with ARB and to comply with his obligations to provide information to ARB. In all the circumstances the Committee was satisfied that these particulars are proved.

 

Unacceptable Professional Conduct (UPC)

 

  1. The Committee went on to consider whether the conduct of the Registered Person amounted to UPC. In making this decision the Committee had regard to the submissions of the Presenter who submitted that both individually and cumulatively the failings of the Registered Person were serious and amounted to UPC.

 

  1. The Presenter submitted that the conduct of the Registered Person eroded the trust that the Referrer placed in him to act professionally and protect his interests. The Presenter submitted that the consequences of the Registered Person’s failings in relation to the terms of business and the contract provisions had serious consequences for the Referrer and left him feeling out of control with regard to costs.

 

  1. The Presenter submitted that the design of the basement was a significant falling short as the Referrer now has a space which is unusable. This failing was, in the submission of the Presenter, compounded by the failure to inspect the construction which should have prevented these issues arising. The Presenter submitted that the failure to respond to the Referrer’s compliant left the Referrer feeling “abandoned” and he is now facing significant difficulty in rectifying the problem.

 

  1. The Presenter submitted that the Registered Person’s failure to cooperate with his regulator has undermined ARB’s function to protect the public and prevented it from discharging its functions. The Presenter submitted that the Registered Person’s failings occurred throughout the project and can be considered a pattern of conduct which can properly be categorised as UPC.

 

  1. The Committee accepted the legal advice of the Chair. The Committee noted that UPC is a matter for its professional judgement. The Committee noted the standards applicable at the time under the 2017 Code and reminded itself that not every falling short or breach of the standard is sufficient to justify a finding of UPC, the failing must be serious.

 

  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 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”.

 

  1. The Committee considered that failing to provide adequate terms of engagement to the Referrer was a serious failing and left the Referrer without clarity on the role of the architect and the fees to be charged. This failure was compounded by the failure to provide adequate costs advice as the project progressed and left the Referrer in a position where costs escalated and there was no mechanism to control them. The Committee considered that the failure to give the Referrer adequate advice about the appropriate form of building contract was very serious in that it left the Referrer without significant contractual protection. The Registered Person advocated and subsequently negotiated a contract that did not contain key mechanisms to control costs and did not make the role of the architect clear. This is despite the fact that the Registered Person was a signatory to that contract. Payments were to be made by certain dates regardless of whether the work had been completed. The Registered Person placed the Referrer in a disadvantageous position with regard to the terms of the contract. The Committee considered that the Registered Person had failed in his core duties as an architect to provide adequate terms of business and adequate professional advice.

 

  1. The Committee considered that the failure to adequately design and inspect the basement was a serious falling short. The Committee considered that the design was flawed, and it accepted the evidence of Mr Morley that it was “bound to fail”. The Referrer has been left with a basement that is not fit for purpose with water ingress, mould and water damage. He is facing considerable costs to rectify this work. The Committee considered that, as an experienced architect, the Registered Person should have been aware that the system was not appropriate for the basement and regular and detailed inspection of the work should have alerted him to the potential problems. The Referrer paid the Registered Person’s fees for drawings and site visits and had a legitimate expectation that the Registered Person would pay particular attention to the design and inspection of the waterproofing of the basement given the impact of failure on the project. The Committee considered that these failures were a serious falling short of the responsibilities of an architect.

 

  1. The Committee considered that the Registered Person’s failure to cooperate fully and promptly with ARB and to provide his regulator with required information was a serious falling short of his obligations under the Code. ARB undertakes an important function to protect the public by maintaining the Register and ensuring that the public can have confidence in members of the profession. The Registered Person’s actions have undermined that confidence and hampered ARB’s ability to carry out its regulatory functions. Letters sent to the Registered Person’s address have been returned which suggests that members of the public may have a similar difficulty in writing to the Registered Person. ARB has been placed in difficulty investigating the concerns raised by the Referrer because of the lack of cooperation by the Registered Person. Failure to provide the evidence of indemnity insurance has had an impact in terms of both public confidence and protection more generally and the Referrer’s ability to raise a claim in particular.

 

  1. In the Committee’s view, the Registered Person’s conduct constituted a breach of Standards 2.1, 4.1, 4.4, 6.1, 6.3, 8.1, 8.4, 10.2, 11.1 and 11.2 of the 2017 Code.

 

  1. The Committee considered these failings to be very serious. They have impacted on the reputation of the profession and had a profound financial and personal effect on the Referrer.

 

  1. 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.

 

  1. In all the circumstances and for the reasons set out above, the Committee finds that the conduct of the Registered Person does amount to unacceptable professional conduct in respect of all the particulars both individually and cumulatively.

 

Sanction

 

ARB Submissions

 

  1. The Presenter set out the ARB’s submissions in relation to sanction and drew the Committee’s attention to the ARB’s Sanctions Guidance 1 April 2022. The Presenter submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction.

 

  1. In terms of aggravating factors, he asked the Committee to remind itself of its findings in relation to UPC take into account the following:

i. The very serious effect of the failings of the Registered Person on the Referrer

ii. This was a pattern of poor conduct encompassing multiple failings over the course of the project and beyond.

iii. There has been a refusal to acknowledge failings.

iv. There has been a failure to engage with the disciplinary process constructively.

v. The Registered Person has not demonstrated any insight or remorse.

vi. The Registered Person has not provided any evidence of corrective steps taken to reassure the Committee that his failings will not be repeated.

 

  1. As for mitigating factors the Presenter informed the Committee that there were no previous adverse regulatory findings against the Registered Person.

 

Decision on Sanction

 

  1. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the 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 Registered Person’s interests, the 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.

 

  1. The Committee has identified the following aggravating factors:

i. The Registered Person’s failings have had a very serious effect on the Referrer. He has incurred significant expense and is also facing significant costs to rectify the issues. The Referrer has experienced considerable stress and expense as a result of the conduct of the Registered Person.

ii. The Registered Person has not provided any evidence of any insight into the seriousness of these failings and has not provided any evidence that he has learned from his failings nor any reassurances that they will not be repeated.

iii. The Registered Person’s failure to cooperate with his regulator has persisted over a significant period of time and involves failure to comply with core obligations.

 

  1. The Committee has identified the following mitigating factors:

i. The Registered Person has no previous adverse regulatory history in a lengthy career.

 

  1. 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.

 

  1. The matters found proved are serious to the extent that the Registered Person’s failings diminish both his reputation, and that of the profession generally and exposed his client to substantial detriment and financial loss. The public would expect to rely on an architect to protect their interests and ensure that designs are fit for purpose. 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 and particularly the failure by the Registered Person to comply with his obligations as a registered professional.

 

  1. The Committee concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

 

  1. The Committee has balanced the Registered Person’s own interests with those of the profession and the public and has borne in mind the need to act proportionately.

 

  1. 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 Registered Person’s conduct was at the lower end of the scale.

 

  1. 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.

 

  1. 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 insufficient to uphold the reputation of the profession or protect the public. Given the seriousness of the UPC and the identified risk of repetition together with the lack of any meaningful insight the Committee concluded that a suspension order would not be sufficient to uphold the public interest. The Committee has taken into account the Registered Person’s unblemished career and the fact that this was a failing in relation to one project. However, there were multiple failings which are so serious and so fundamental that the Committee considers these are incompatible with continuing to be an architect. The Committee considered that the continuing failure to engage constructively with ARB was incompatible with continued registration as the Registered Person is unwilling to comply with the requirements imposed upon him. The Committee considered that the seriousness of the matters found proved were at the higher end of the scale and damaged the trust that the public places in the profession and fell far short of what is expected.

 

  1. The Committee considered that given the seriousness of the matters found proved the only appropriate and proportionate sanction to uphold the reputation of the profession and protect the public is erasure. The Committee has had regard to the impact of such a sanction on the Registered Person but considers that the public interest outweighs his interests.

 

  1. The Committee therefore directs that the Registered Person’s name is erased from the register. The Committee recommends that the Registered Person shall be entitled to apply for restoration to the register in no less than three years which the Committee considers is proportionate in the circumstances.

 

  1. This would mean that should the Registered Person wish to return to practice as an architect, he would have to demonstrate that he is fit to do so by satisfying the ARB that he had addressed the failings that gave rise to the findings of this Committee before returning to practice as an architect. The Committee considered that this was an essential safeguard for the public and to ensure that the reputation of the profession is upheld.

 

  1. That concludes this determination.