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Mr Justin Patrick Davies

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

MR JUSTIN PATRICK DAVIES (067546F)

Held as a video conference

   On

22 to 26 November 2021

———-

Present

Sadia Zouq (Chair)

Deborah Kirk (PCC Architect Member)

Jules Griffiths (PCC Lay Member)

———–

In this case, the ARB is represented by Ms Kathryn Sheridan of Kingsley Napley LLP.

Mr Justin Patrick Davies has attended this hearing but is not legally represented.

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

    1. Did not provide adequate terms of engagement to the Complainant contrary to Standard 4.4. 
    1. The Respondent failed to adequately communicate with the client in relation to:
      i. Site visits and/or other meetings and/or;
      ii.Issues affecting cost and/or fees.
    1. The Architect failed to deal with a complaint and/or dispute appropriately

and that by doing so, he acted in breach of Standards 4.4, 6.3, 10.2 and 10.3 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is one of Suspension for a period of 9 months. 


The Allegation

  1. Mr Justin Davies (“the Respondent”) is charged by the Architects Registration Board (“ARB”) with unacceptable professional conduct (“UPC”), and the Professional Conduct Committee (“the Committee”) is responsible for deciding whether that allegation is found proved, or not.
  1. The Charge comes before the Committee further to its jurisdiction under the Architects Act 1997, section 15(1)(a) to make a disciplinary order if a registered person has been guilty of UPC.
  2. The matters asserted by the ARB to have occurred and which it is said amount (if proved) to UPC are the following:
    (1) The Respondent did not provide adequate terms of engagement to the Complainant contrary to standard 4.4 of the Architects Code;

    (2) The Respondent failed to adequately communicate with the client in relation to:

    1. site visits and/or other meetings and/or;
    2. Issues affecting cost and/or fees.

    (3) The Architect failed to deal with a complaint and/or dispute appropriately.

Preliminary legal matters

  1. At the commencement of the hearing Ms Sheridan (“the Presenter”) sought to amend Particular 2 to add the word “or” at the end of 2(i). The Presenter informed the Committee that the Respondent was provided notice of the application to amend on 15 November 2021. She submitted that the amendment allowed flexibility for the Committee to consider Particulars 2(i) and (ii) individually. The Presenter further submitted that the amendment does not cause unfairness to the Respondent. The Respondent did not object to the application.
  1. The Committee heard and accepted the advice of the Legally Qualified Chair who referred it to rule 16(b) of the Professional Conduct Committee Rules 2019 (“the Rules”), which provides: “The Hearing Panel may permit the amendment of a Charge, but if such an amendment is permitted and the Respondent has been materially prejudiced he or she shall be entitled to an adjournment.”
  1. The Committee determined that the amendment would allow it the flexibility to find one of the two sub-particulars under Particular 2 proved. The Respondent had been provided notice of the proposed amendment, he did not object to it and there would be no material prejudice to him. It therefore granted the application to amend Particular 2 in the terms sought, namely:
    (2) The Respondent failed to adequately communicate with the client in relation to:
    i. site visits and/or other meetings and or;
    ii. Issues affecting cost and/or fees.
  1. In the Acknowledgement of Notice of Hearing form dated 4 September 2021 the Respondent denied the Allegation and further denied that the Allegation could amount to UPC. At the hearing the Respondent confirmed he denied the Allegation.

Background

  1. The Respondent registered with the ARB in 2003. He is the Managing Director of Architectural Consultants in Bristol.
  1. On 14 December 2018 Mr X and Mrs X (“the Complainants”) purchased the property (“the site”). The site consists of a house and a number of other buildings. The Complainants planned to convert some of the additional buildings into holiday lets whilst residing in the house. A planning application was required to undertake this work. The Complainants contacted the Respondent.
  1. In early April 2019 the Complainants had an initial meeting with the Respondent at the site to discuss the project. The Respondent told the Complainants that he would be able to secure planning permission for the holiday lets. At the meeting the Complainants indicated they would like to instruct the Respondent.
  1. On 18 April 2019 the Respondent wrote to the Complainants and provided a letter of agreement for the conversion of the four buildings into three holiday lets. The letter begins by identifying the nature of the agreement and then goes on to list costs according to various stages of work:
    “Stage 1 £1200. To start
    Stage 2 £1200 Drawings handed to client for approval prior to submission
    Stages 3 and 4 to be confirmed at a later stage
    Stage 3 £900 Building Regs submission”
  1. The letter details various additional fees including fees for site visits and the Respondent’s hourly rate. In the event of a dispute the letter states the Respondent would hope to settle through negotiation or mediation.
  1. The planning permission application was submitted to South Gloucestershire Council (“the Council”). There was a delay in obtaining planning permission for several months due to a combination of the Council’s back log of applications and objections raised within the local community contesting the application.
  1. On 25 April 2019 and 2 May 2019 the Complainants made payment to the Respondent for Stages 1 and 2. Stage 2 payment was for the sum of £1314.56, an increase of £114.56. On 17 September 2019 the Respondent notified the Complainants by email that due to additional work arising from the planning application a further £700 fee had been incurred.
  1. On 31 October 2019 a meeting was held at the Council to consider the planning application. A notice relating to this was provided to the Respondent. The Complainants attended the meeting. Someone was taken ill during the meeting and passed away, so the meeting was rescheduled to 14 November 2019.
  1. On 12 November 2019 the Respondent emailed the Complainants asking whether the application had been approved. The Complainants responded explaining what had happened and that the meeting had been rescheduled. The Respondent offered to attend the rescheduled meeting on 14 November 2019 in the place of the Complainants, and they agreed. The Respondent did not attend the meeting. Planning permission was granted on 15 November 2019.
  1. During September 2019 the Complainants considered adding an additional two buildings to the holiday let proposal, to bring the total number of holiday lets to five. They sought to instruct the Respondent to draw up the site plans so that a retrospective application for the buildings to be used as two holiday lets could be submitted.
  1. It is alleged by the Complainants that the Respondent increased the complexity of the process by suggesting that he withdraws the original planning application and submits a new application to include the additional two holiday lets. This was not accepted by the Complainants who said that they had withdrawn their instructions in relation to the two additional lets. The Respondent continued to work on this project and produced site plans.
  1. On 18 November 2019 Mrs X received an invoice from the Respondent via email for £8402.75. The invoice was disputed by the Complainants as there were items listed that were not considered to be chargeable work, namely two site visits of 16 October 2019 and a site visit of 14 November 2019. It also did not credit the £2514.56 already paid for Stages 1 and 2. On the same evening it is alleged that the Respondent attended the Complainants address demanding payment. The Complainants did not pay the invoice.
  1. On 20 November 2019 the Complainants received an amended invoice from the Respondent via email for £6377.75. The invoice was again disputed as chargeable items were listed which the Complainants had not been informed about. These included: a meeting with an Arborist on 15 November 2019, a committee meeting to discuss burning of materials on 17 November 2019, the Respondent’s attendance at a funeral of a neighbour on 27 November 2019.
  1. A series of email exchanges took place between the Complainants and Respondent. On 25 November 2019 the Complainants emailed the Respondent setting out which areas of the invoice were disputed and suggesting a figure of £4000.00 in settlement. On the same date the Respondent replied to the email and referred to work undertaken in respect of the two additional units. The Respondent’s email concluded with: “There will be no more correspondence from this office in relation to this payment. Only court proceedings for Non-Payment of an agreement in writing. Are we going to court for Non payment or is this invoice going to be paid? [sic]. On 26 November 2019 the Complainants emailed the Respondent for him to not contact them again.
  1. On 30 November 2019 the Respondent emailed the Complainants asking when he could expect payment. On 5 December 2019 the Complainants transferred the sum of £2899.06 to the Respondent. The Respondent replied on the same day, asking when he could expect to receive the “final payment in full prior to court proceedings”.
  1. On 6 January 2020 the Respondent sent several emails to the Complainants referencing payment and Court proceedings. On 8 January 2020 the Respondent sent a further invoice in the sum of £4120.79 to the Complainants. On 9 January 2020, the Respondent sent a further four emails to the Complainants chasing payment and referencing court proceedings. The Complainants did not make payment.
  1. On 22 October 2020 the civil claim brought by the Respondent was heard in Court. The Respondent claimed £5156.70 in unpaid fees. The Court allowed the Respondent’s claim in part, and the Complainants were left with an outstanding amount owed to the Respondent of £1483.41.
  1. On 3 February 2020 the Complainants submitted a formal complaint to the ARB.
  1. The Respondent provided written representations to the ARB on 10 May 2020. In December 2020 the Respondent provided his response to the allegation for consideration by the Investigations Panel of the ARB. The Respondent disputes the allegation.

Evidence

  1. In reaching its decisions, the Committee carefully considered the live evidence from Mr X and Mrs X and the Respondent, together with the documentary evidence presented to it in the Report of ARB’s Solicitor and the documents exhibited to it.
  1. The Complainants’ evidence was challenged by the Respondent.
  1. The Respondent provided a number of documents in addition to those in the ARB bundle. This included a two page print out of customer feedback from a number of customers dated between November 2017 and December 2020, an email dated 2 November 2021 from the Respondent to the ARB, and a five page Curriculum Vitae.
  1. The Respondent referred to further documentation during his evidence. This evidence was not before the Committee and the ARB and had not been served in accordance with the Rules. The evidence comprised of a letter dated 15 January 2020 from the Respondent addressed to “Dear Courts”, and a Zip file that contained a number of written objections from the local community to the Complainants’ planning application.
    1. The Respondent applied to adduce the additional documents under Rule 15. He submitted as follows:
      • The documents were relevant to the Committee’s consideration of the Allegation;
      • The documents clarified the amount of money he claimed in the civil proceedings;
      • In relation to the local community objections to the planning application, the Respondent had taken time to consider these objections during his instruction hence the additional costs incurred. This work was referenced in his email to the Complainants of 17 September 2019, as were the additional fees;
      • The documents could not be provided earlier as reference to the additional work was only raised in evidence on day two of the hearing;
      • It would be fair to admit the documents.
  1. The Presenter did not object to the admission of the documents. The Presenter submitted that she was conscious the Respondent was not legally represented. She made the following observations in response to the application:
    • The letter of 15 January 2020 was not new material. The sums quoted in the letter are inconsistent with the Respondent’s own claim form;
    • The Committee was not being asked to resolve a fee dispute but to consider the Respondent’s failure to adequately communicate to the Complainants issues affecting cost and/or fees;
    • There was no good reason for the letter to be admitted;
    • In relation to the local community’s objections to the planning application, the Respondent now submitted that the work to consider the objections justified the additional hours and fees quoted in his email of 17 September 2019; however, the Respondent had been in possession of the invoice and so this was not new material that could not have been produced sooner;
    • The local community’s objections are not relevant and do not take the Respondent’s case any further.
  1. The Legally Qualified Chair referred to Rule 15a and b. The Committee considered it was regrettable that the Respondent had not provided the documents earlier. It was desirable and in the interests of justice that all relevant evidence was before the Committee. Noting that the Respondent was not legally represented, and he considered the documents to be of significance to his case, the Committee considered that it would be unjust not to admit the documents. The Presenter and the Committee would have an opportunity to ask the Respondent questions in relation to the documents.
  1. Prior to concluding its deliberations on Facts and UPC, the Respondent applied to adduce further documentation to put before the Committee. He referred to an email sent to ARB which included:
    • A combined site plan;
    • Three identical invoices dated 29 October 2021 (in relation to an anonymised client);
    • A letter of appointment dated 15 November 2021 (in relation to an anonymised client);
    • An undated seven page conditions of appointment document with the Respondent’s company logo headed on page 1;
    • A decision for a planning application dated 20 March 2020;
    • A number of comments from the Respondent in his email of 7:26 am on 25 November 2021.
  1. In fairness to the Respondent the Presenter did not oppose the Committee seeing the documentation. She submitted that the Committee had not concluded its deliberations, the documentation did not prejudice the ARB’s case and it took the Committee no further in relation to its deliberations on Facts and UPC. The Presenter stated that some of the documentation may become relevant at the sanction stage, if reached. The Respondent submitted that the documentation was relevant as it demonstrated he had revised his paperwork following the civil proceedings, and he was “keen to ensure that something like this never happens again”.
  1. The Legally Qualified Chair referred to Rule 15a and b. The Committee decided to admit the additional documentation at this stage. The Committee had not finalised its deliberations on Facts and UPC, the Respondent was not legally represented, and he considered the documentation to be of significance. The application was unopposed by ARB. The Committee therefore determined it would be unjust not to admit the documentation.
  1. Prior to the Committee handing down its decision on Facts and UPC, the Respondent informed the Committee that he wished to make a further application under Rule 15 to adduce into evidence 6 emails and a bank statement. The Respondent submitted that these documents were relevant to rebut aspects of the ARB’s witnesses. The Presenter, having seen the additional documentation, submitted that closing submissions have been heard and the Committee has finalised its decision on Facts and UPC. In fairness to the Respondent the Presenter reminded the Committee that the Respondent will have a further opportunity to submit evidence and address the Committee in submissions should it reach the sanction stage.
  1. The Committee determined that because it had come to its decision on Facts and UPC, it was not prepared to admit additional documentation in relation to these stages.
  1. Prior to hearing submissions on sanction, the Respondent applied to admit further evidence in the form of eight emails. These emails included the six emails the Respondent had applied to submit into evidence previously. The eight emails had been emailed to ARB at various times in the afternoon of 25 November 2021 and in the morning of 26 November 2021. The Respondent submitted that the relevance of the emails was “as set out in them”. ARB did not oppose the application. The Committee had regard to Rule 15 and admitted the emails. The Committee considered that the emails were of limited relevance to its consideration of sanction.
  1. During his evidence at the sanction stage the Respondent referred to matters concerning his financial circumstances. He applied to the Committee for it to hear those parts of his evidence private. ARB did not oppose the application. The Committee had regard to Rule 21 and considered those parts of the hearing that relate to the Respondent’s financial circumstances should be heard in private.
  1. The Committee heard live evidence from ARB’s two witnesses. It considered the evidence of Mrs X to be consistent with her complaint and the documentary evidence in the bundle.
  1. The Committee considered Mr X’s evidence to be limited in terms of memory recall on specific dates. For example, Mr X could not recall the date(s) when he verbally de-instructed the Respondent in relation to the two holiday lets. The Committee noted that Mr X relied on Mrs X to communicate with the Respondent throughout the professional relationship.
  1. The Respondent gave evidence. The Committee took into account the Respondent was not legally represented. It acknowledged that the process was stressful and difficult. Notwithstanding this, the Committee identified a number of factors that undermined the Respondent’s credibility generally:
  1. At times he was evasive and his oral evidence was inconsistent with the documentary evidence in a number of important aspects. For example, when it was put to the Respondent in cross-examination that he had failed to inform the Complainants of the two site meetings on 16 October 2021, the Respondent was unable to point to correspondence which supported his position they had been informed, but instead directed the Committee to an email dated 18 October 2019, which referred to a site visit on 17 October 2019 – a different day to that invoiced. He also referred to an email to the Council dated 17 October 2019 in which he states, “I was on site yesterday…”. These were not emails informing the Complainants prior to site meetings taking place;
  2. The Committee considered that some of the explanations that he gave were neither credible nor reasonable and did not align with any sensible interpretation of the facts. For example, in relation to the meeting with an Arborist, which the Respondent maintained in evidence the Complainants were aware of, the explanation he provided was that the Complainants were copied into correspondence with the Council which offered an arboriculture method statement as a condition. However, this was not a communication clearly explaining to the Complainants of the implications of having an arborist in terms of fees and/or costs. Further the Respondent’s explanations for urgent meetings with the Committee and/or environmental health, which the Complainants state they were not notified of until receiving the invoice, lacked credibility.
  3. He was at times vague in that he was unable to explain items he had charged the Complainants. For example, during re-examination the Respondent referred to the item “Telephone call to LA [local authority] and received from client” as noted on the 18 November 2019 invoice. He stated that this was not a call “just to the Local Authority” but also to the Complainants, without any sensible explanation of why the calls were invoiced for a duration of three hours.
  4. Despite stating in evidence that his paperwork, specifically referring to his letter of agreement and invoicing, required “tightening up”, the Respondent was unable to provide any satisfactory explanation why he had not provided adequate terms of agreement and an updated agreement in relation to the variation in accordance with Standard 4.4. He initially stated that terms and conditions ought to have been included with the letter of agreement, and when questions were put to him, he stated “yes it [terms of agreement] can be improved. I have no qualms in improving it and discussing it with ARB”, and “I am totally aware the terms of agreement needed updating”. However, the Respondent maintained that the terms of agreement were adequate and compliant with the relevant standard because “the Complainants understood them and they knew what they were paying” – a contradiction to his earlier responses in cross examination;
  5. At times the Respondent failed to engage with the allegation, preferring to focus on the fee dispute which had already been considered in civil proceedings on 22 October 2020.
  1. For the reasons stated above, the Committee considered that the Respondent’s evidence in a number of respects lacked credibility and reliability. This led the Committee to conclude that where there was a conflict between his evidence and that of ARB’s witnesses, ARB’s evidence was to be preferred.

Legal Advice

  1. The Committee accepted the legal advice given by the Legally Qualified Chair. It has had regard to the fact that the burden of proof is on ARB and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies. UPC is defined as conduct which falls seriously 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 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.

Findings of Fact

  1. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainants and the Respondent, together with the documentary evidence presented to it in the bundle and report of ARB’s solicitor, the documents exhibited to that report, and the documents supplied by the Respondent. It has taken into account the submissions made by the Presenter and Respondent.
  1. The Committee makes the following findings of facts:

Particular 1 – Found Proved

  1. Standard 4.4 of the Architects Code 2017 states that an Architect is expected to ensure that they enter into a written agreement with the client which adequately covers a number of matters as set out below:
  • the contracting parties;
  • the scope of the work:
  • the fee or method of calculating it;
  • who will be responsible for what ;
  • any constraints or limitations on the responsibilities of the parties;
  • the provisions for suspension or termination of the agreement, including any legal rights of cancellation;
  • a statement that the Architect has adequate and appropriate insurance cover as specified by ARB;
  • the existence of any Alternative Dispute Resolution schemes that the contract is subject to and how they might be accessed;
  • that the Architect has a complaints-handling procedure available on request;
  • that the Architect is are registered with the Architects Registration Board and that they are subject to this Code.
  1. The Committee considered the Respondent’s terms of engagement letter dated 18 April 2019 and the updated terms of engagement email dated 24 September 2019.
  1. The Respondent told the Committee that the letter of engagement dated 18 April 2019 was the standard written agreement that he had previously provided to all of his clients since 2018 which is when he began trading as a sole architect. He had taken advice from the Royal Institute of British Architects (“RIBA”) when drafting his terms of engagement and “reduced it to two pages to keep it simple”. He stated that the majority of his clients instruct him to undertake relatively modest projects and that he believed the content of the letter of engagement was adequate.
  1. When answering questions from the Presenter the Respondent stated that the terms of engagement needed “tightening” but maintained that the terms of engagement were adequate and that he had verbally confirmed everything with the Complainants who understood what each stage involved and that it was “pretty well clear”. When it was put to the Respondent it was unclear whether the £100 per site visit applied to stages 3 onwards, he replied “Yes I do agree with you. This letter of engagement is an old one that has been changed…. I do agree the letter of appointment can be improved upon… I have no qualms in improving it and discussing it with ARB”.
  1. In relation to the updated terms of engagement dated 24 September 2019 the Respondent stated “…well the client signed it and knew what they were getting. I don’t see how that is deficient”.
  1. Mrs X told the Committee that she understood the fees of £100 per site visit and £35 per telephone call did not apply to stages 1 and 2, and that the Complainants would be notified of the costs of Stages 3 and 4 in advance by the Respondent. As the Respondent did not submit the building regulations under stage 3, the Complainants did not expect to be charged for any work under stages 3 and 4. Mrs X stated that they were unaware of what Stages 3 and 4 involved as the letter of engagement stated, “to be confirmed at a later stage”. She also stated that the Respondent did not inform them of the work which was charged at the hourly rate prior to it being incurred.
  1. The Committee is satisfied that the Respondent’s letter of engagement dated 18 April 2019 was inadequate and did not cover all the requirements of Standard 4.4. The letter of engagement lacked sufficient clarity in relation to the scope of work that the Respondent would provide. Stages 1 and 2 were insufficiently detailed, and there was no explanation as to what Stages 3 and 4 involved and what fees would be incurred.
  1. The fees or method of calculating fees were also insufficiently detailed. It was unclear whether references to ‘£100 per site visit’ referred to Stages 3 and 4 only or applied to the project as a whole. Whilst the terms state ‘£35 telephone call during the build’, the Committee noted the Respondent invoiced the Complainants for calls during Stages 1 and 2, contrary to his own agreement.
  1. The terms do not clearly set out any constraints or limitations on the responsibilities of the parties and does not provide details of any complaints handling procedure.
  1. The Committee considered that the updated letter of engagement sent to the Complainants via email on 24 September 2019. The Respondent states in this email “in order for us not to have to write another additional letter of Appointment, I will submit another additional planning and Building Regulation application as discussed for the additional 2 no holiday lets on site, as set out on the same terms of the letter of appointment”. It follows therefore, that the deficiencies noted by the Committee in the letter of engagement of 18 April 2019 also apply to the updated letter of engagement.
  1. The Committee therefore finds that the Respondent breached Standard 4.4 of the Code and that particular 1 of the allegation is proved.

Particular 2 (i) – Found Proved

  1. The Committee first considered the communication between the Respondent and Complainants in relation to site visits. In their evidence to the Committee Mrs X and Mr X stated the Respondent had charged for site visits that were not notified of in advance, had not taken place, or did not progress the project. In relation to the site visit of 14 November 2019, Mrs X stated that the Respondent arrived at their property in the evening unannounced. The Respondent queried the time of the planning meeting and was informed that it had taken place that morning. Mrs X stated that the Respondent’s visit did not progress the project any further and there was no justification for that visit for which they were subsequently charged. The Respondent stated in evidence that the reason for the site visit was in email correspondence and “they knew about this and that is what all… it was for. They knew I needed to go to site”. There was no correspondence before the Committee to corroborate the Respondent’s evidence.
  1. In relation to the site visit of 19 November 2019, Mrs X told the Committee there was no notification about a site visit and the fees incurred. Regarding the two site visits of 16 October 2019, Mrs X told the Committee they were not notified of these visits and that she was abroad at the time. The Respondent in evidence stated the site visits were necessary to provide drawings for work on the front of the property and that he had copied Mrs X into all correspondence. However, he was unable to point to correspondence which supported this position, and instead directed the Committee to an email of 18 October 2019 which referred to a site visit on a different day to that invoiced and, in any event, was sent to the Complainants after the meeting had already taken place.
  1. The Committee next considered the communication between the Respondent and Complainants in relation to other meetings.
  1. A meeting with an Arborist on 15 November 2019 was noted on the invoice. The Complainants had not specifically instructed the Respondent to contract work with an Arborist. The Respondent directed the Committee to an email in which Mrs X was copied into correspondence with the Council which offered an arboriculture method statement as a condition. In Mrs X’s email to the Respondent of 25 November 2019 she stated “… on 15 November 2019 you had a meeting with an arborist. As plans had already been passed by this point and we did not agree to this, we are not going to pay for this either. The only person who has ever mentioned the tree is you.” Mrs X confirmed in her evidence to the Committee that she was not notified by the Respondent of an Arborist being called. The Respondent maintained that the Complainants knew about the Arborist but was unable to provide any corroborative correspondence in which he had notified the Complainants of the instruction and subsequent meeting with an Arborist.
  1. The Complainants were invoiced for a meeting on 17 November 2019 noted by the Respondent as “meeting with committee to discuss burning of materials and funeral 27th of neighbour”. Mrs X stated in evidence they were never informed of such a meeting and that it was up to the Council to discuss concerns regarding burning of materials with the Complainants directly. The Respondent clarified in his evidence that the meeting took place at the Parish, and before the date of the neighbour’s funeral. He told the Committee that he “had to find out other information for my client to ensure they got planning permission”. In his closing submissions the Respondent stated, “the only time I didn’t communicate with them was when I went to the Parish and that was an emergency”. The Committee noted the Respondent’s email of 17 October 2019 to the Council, in which Mrs X is copied, where he states, “I have not been instructed to proceed with the application for the other existing building on this site”. The Respondent was therefore aware he was no longer instructed in relation to the two holiday lets yet attended a meeting at a Parish that was unnecessary, and in any event had not been communicated to the Complainants in advance.
  1. In its determination of Particular 2(i) the Committee preferred the evidence of Mr X and Mrs X. Mrs X was balanced and fair. She told the Committee that they were advised of certain site meetings; for example, when she was informed what had to be done regarding the splay. However, the later site visits came as a “complete surprise” and did not progress the project. Neither she nor Mr X had agreed to these meetings in advance and had no notion that they were being charged for them. She had accepted that there may be additional costs incurred beyond the £2400 quoted for Stages 1 and 2, and this was reflected in her evidence where she stated that they did not dispute the total cost of £2514.56. Mrs X’s evidence was consistent with her handwritten annotations on the invoice of 20 November 2019 and her email to the Respondent dated 25 November 2019 in which she disputed the site visits and the meetings with the Arborist and at the Parish. In her email of 5 December 2019 Mrs X stated, “We have deducted the amount for the many so-called site visits which did not exist…We did not cancel them because you did not make the appointments in the first place”. The Committee considered that the contemporaneous documents provided by the Complainants supports their accounts that they were not notified/kept informed of site visits and other meetings. The Respondent has been unable to produce diary entries, minutes or notes from site visits and has not been able to provide evidence to corroborate the other meetings and their necessity.
  1. Accordingly, for the reasons set out above, the Committee finds the entirety of Particular 2(i) proved.

Particular 2 (ii) – Found Proved

  1. The Committee carefully considered the evidence of the Complainants and the Respondent. The Complainants maintained that they were not expecting to be billed for site-visits which had not been prearranged including visits where they were not present at the site, or for work which they had not specifically instructed the Respondent to carry out, including meeting an Arborist and attending a meeting at the Parish.
  1. The Complainants contend some of the work undertaken by the Respondent was unnecessary as it post-dated the grant of the planning application to which the work related and post-dated his de-instruction in relation to the additional two holiday lets. Mrs X stated that they had no notion of their fees or costs increasing to the sum initially invoiced by the Respondent or on the basis on which those fees had been accrued. Mrs X said she was “astonished at how could he have run up such a bill given we had paid him over two thousand pounds to start with…We never thought it would be anywhere near this figure”. She told the Committee that they had paid an additional £114 without questioning the Respondent for Stage 2; however, the Respondent had not communicated in advance why the sum had increased by this amount. The increase was not disputed by the Respondent in his evidence.
  1. The Respondent’s evidence was that Mrs X was copied into all correspondence with the Council and therefore was aware of the work being undertaken and its associated costs. The Committee reviewed this correspondence and noted, other than an email of 17 September 2019 from the Respondent which detailed an additional 17 hours of work accrued at £700, there was no other correspondence from the Respondent to the Complainants setting out issues affecting cost and/or fees. The Committee also had regard to the Respondent’s invoices. These do not set out clearly what work has been undertaken and in some instances descriptions of work are insufficient, such as a “Telephone call to LA [local authority] and received from client” at “3 hours” on 19 November 2019 which postdates the granting of planning permission and the Respondent’s de-instruction in relation to the additional two holiday lets.
  1. The Committee considered that the documentary evidence supports the Complainants account. The Complainants were not adequately informed by the Respondent of the increase in costs and/or fees of the project before undertaking work. Accordingly, the Committee finds the entirety of Particular 2(ii) proved.

Particular 3 – Found Proved

  1. The Respondent emailed the Complainants an invoice dated 18 November 2019. The invoice was disputed. The Committee noted the invoice stated payment was due in seven days. The following day at 8:30pm the Respondent attended the Complainants address. A confrontation took place between Mr  X and the Respondent. Mr X gave evidence that the Respondent demanded payment for his fees and “He was trying to get into the house. He wanted money. I’d never see anything like it”. The Respondent’s evidence is that he went to the address to inform the Complainants that planning permission had been granted and he was assaulted by Mr X. In his written representations to the Investigating Panel of ARB the Respondent stated, “Please note the Police were informed [sic] and “When someone tells you to Fuck off and assault you after you have just obtained planning permission for them. Then they are heading to court.[sic].
  1. The Committee noted there was a conflict of evidence between the Complainants’ and the Respondent’s accounts as to what happened that evening. There was also an inconsistency in the Respondent’s own evidence. The Committee preferred the Complainants’ account in relation to the events of 19 November 2019 for the following reasons. The Complainants’ account was corroborated by Mrs X’s email of 26 November 2019 in which she told the Respondent “Due to your derogatory emails, aggressive behaviour when you call at the house on Tuesday 19 November 2019, and demanding money with menaces, we will now be complaining to the Architects Registration Board. Do not contact us again”. Further, the Committee noted that planning permission had been granted on 15 November 2019 and there was no reason for the Respondent to have attended the Complainants’ address at 8:30pm unannounced to notify them of the same. The Committee noted that despite the Respondent stating to ARB that the local authority and police had been informed, he did not provide any enforcement notice or police correspondence to the Committee. His representations to ARB contradict his email of 22 November 2019 in which he told the Complainants “I nearly went to the police today, but decided against it…”.
  1. A second invoice was provided by the Respondent on 20 November 2019, which was closely followed by a spate of four informal emails requesting payment sent on 22 November 2019. The Committee considered the contents of these emails and concluded the Respondent’s comments as inappropriate, specifically: “I won’t go public I promise” and “Please tell X if we meet again he promises to be good”. Following Mrs X’s email of 25 November 2019, in which an offer to settle the outstanding payment in the sum of £4000 was made to the Respondent, he replied offering to reduce the invoice by £100 and said that the Complainants were “making up a story to avoid payment” and suggested that they “…tried avoid payment making out so much bullshit [sic] before concluding “there will be no more correspondence from this office in relation to this payment. Only court proceedings for Non Payment of an agreement in writing. Are we going to court for Non payment or is this invoice going to be paid? [sic]. The Committee concluded that these comments from the Respondent were not only inappropriate but unprofessional.
  1. The Respondent then sent a total of sixteen further demands for payment between 25 November 2019 and 9 January 2020. In his email of 26 November 2019 to the Complainants the Respondent stated, “How is X getting on destroying all of his marijuana equipment in the rear field?”. On 6 January 2020, within the space of two hours and eight minutes the Respondent sent seven emails to the Complainants. In his evidence to the Committee the Respondent stated that he considered it was appropriate to send repeated emails in this manner as he was doing “everything to settle the final account”, and that there was a telephone call to the Complainants before the emails were sent. Mrs X said she felt that the Respondent was browbeating them into paying and described the Respondent’s tone as “bullying, unprofessional” and she was “astounded that he could behave like that”.
  1. In coming to a conclusion in relation to Particular 3, the Committee carefully considered the correspondence between the Respondent and Complainant and the oral evidence. It noted that the Respondent did not make any reference to alternative methods of dispute resolution, and, other than demanding payment, he did not address the Complainants concerns. Initially he did not allow the Complainants the seven days to make payment as noted on his invoices. The Committee considered that the Respondent barraged the Complainants with amended invoices and emails demanding payment. He escalated the dispute to Court, where his claim was allowed in part only with a substantial amount of his claim disallowed. When the Respondent was informed that the Complainants would be making a complaint to the ARB, rather than professionally acknowledging that complaint, the Respondent replied with an email stating: “No problem, please send them my regards and to keep up the good work and don’t forget to tell them I will heading their way soon if they would like any further information it would be a pleasure…[sic]”.
  1. The Committee concluded that the Respondent failed to deal with the disputed invoice appropriately. It is clear to the Committee that despite the Complainants offer to settle the dispute the Respondent made no attempt to discuss the offer or explain why it was rejected. Instead, the tone of his emails was aggressive, hostile, and accusatory. Accordingly, the Committee found Particular 3 proved in its entirety.

Unacceptable Professional Conduct

  1. Having found the above facts proved, the Committee went on to consider whether the Respondent’s conduct amounted to UPC. UPC was a matter of judgment for the Committee, and no burden of proof applied. UPC is defined as conduct that fell seriously short of the standard required of a registered person. The Committee had regard to standards 4.4, 6.3, 10.2 and 10.3 of the 2017 Code.
  1. The Committee carefully considered all the evidence presented to it, all submissions made and accepted the advice from the Legally Qualified Chair.
  1. The Committee concluded that the Respondent’s conduct amounted to unacceptable professional conduct.
  1. In respect of Particular 1, the Committee considered that the Respondent’s failure to provide adequate terms of engagement to the Complainants was serious because it led to misunderstanding and confusion on the Complainants behalf about important matters such as costs/fees, scope of work, any constraints or limitations on the responsibilities of the parties, and the resolving disputes and/or complaints. The result was a breakdown in relationship between the Respondent and Complainants and issuing of proceedings in the civil courts by the Respondent. Had the Respondent provided clear terms of engagement at the outset then the dispute could have been avoided or resolved by means of negotiation. The Respondent was asked about his knowledge of the Code by the Presenter in cross examination:
    “Q: Are you familiar with the Code?
    A: No, so long as you are truthful and honest and go on your way, so should be ok. I haven’t read it in absolute years, I am not totally familiar with it but I am aware of it;Q: Is there any reason why you are not aware of it?
    A: Probably because of the way I run my business;Q: What do you mean?
    A: I have been an architect for a number of years and the way I conduct myself is as it should be. That is how I am. I don’t know all the ins and outs, I have worked for others and myself in accordance as an architect;Q: When you drew up your terms of engagement did you have no regard to the Code?
    A: I didn’t look at it, no.”
  1. The Committee considered the Respondent’s answers and concluded this is a serious failing, particularly as it is a fundamental requirement that an architect complies with this aspect of the Code. Clear and comprehensive terms of engagement are necessary to provide clarity and to inform both parties of their rights and responsibilities. The fact the Respondent did not even take the time to consider the Code when drafting his terms of engagement following the creation of his business in 2018 demonstrates a disregard for his obligations as a registered architect.  The Respondent stated in evidence that the letter of engagement had been used for over three years without issue, but this did not excuse his failure to adhere to the standard.
  1. In these circumstances, the Committee finds the Respondent’s failing to be sufficiently serious for the Committee to find the Respondent guilty of UPC in relation to Particular 1 of the allegation.
  1. In relation to Particulars 2(i) and (ii), the Respondent should have better communicated the work he proposed to do, the work he had actually undertaken, the need for that work, and the associated fees throughout the project. The Respondent should have advised the Complainants of any increase in costs ahead of undertaking work and obtained their consent. The Committee considered Standard 6.3 of the Code. The Committee noted that Standard 6 of the Code is headed:You should carry out your professional work conscientiously and with due regard to relevant technical and professional standards.”
  1. Standard 6.3 states:“6.3 You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.”
  1. The Committee noted the Respondent’s failures to communicate adequately in relation to Particulars 2(i) and (ii) significantly impacted the Complainants. The Complainants were shocked at receiving the initial invoice and struggled to understand how it was possible to be charged for site visits and meetings which they were not aware of, had not consented to, and had not been informed of the associated costs and/or fees.  The only clear update on increased costs, following service of the terms of engagement, from the Respondent was in his email of 17 September 2019 whereby he advised he has accrued an additional £700 in fees.
  1. The Committee considered it was a fundamental aspect of any professional client relationship that consent must be obtained before a client incurs costs. The Respondent’s comments to ARB on 2 November 2021 that “I know I was financially caught out by one of the oldest tricks in the book. Please do not rub it in any more than you have to” demonstrates little insight on his part. The Committee was satisfied that the Respondent’s conduct in relation to Particular 2 fell short of the standard expected of an architect and, in its judgement, amounted to UPC.
  1. In relation to Particular 3, the Respondent did not provide any substantive response to some aspects of the areas of dispute raised by the Complainant. The Committee considered that when a dispute is raised, the Complainant is entitled to a full response to concerns raised. The Committee had regard to Standards 10.2 and 10.3 of the Code:

    Deal with disputes or complaints appropriately

    10.2 Complaints should be handled courteously and promptly at every stage, and as far as practicable in accordance with the following time scales:

    a) an acknowledgement within 10 working days from the receipt of a complaint; and
    b) a response addressing the issues raised in the initial letter of complaint within 30 working days from its receipt.

    10.3 If appropriate, you should encourage alternative methods of dispute resolution, such as mediation or conciliation.

  1. Whilst the Respondent acted promptly in responding to the disputed invoice, in the Committee’s view the dispute was not handled courteously as required by standard 10.2 of the Code. The Respondent’s responses were unprofessional and insulting towards the Complainants. His repeated emails to the Complainant, despite being told on 26 November 2019 to cease communication, with multiple emails sent on dates in January 2020, were considered by the Complainant as “browbeating”. Some of the Respondent’s emails made no reference to payment at all, but instead were unrelated to the dispute and unprofessional in content. When asked how she felt in relation to the emails sent on 6 January 2020, Mrs X replied “it felt like total harassment, like we were being browbeaten, we just couldn’t believe it, it seemed totally unprofessional. He said he wasn’t going to be sending another email and we would go to court. We were quite happy to go to court. He kept sending email after email”.
  1. The Complainants had a right to expect an adequate response to the disputed invoice from the Respondent before the issuing of court proceedings, and for an Architect to behave professionally. The Committee considered the Respondent’s reaction to the dispute as intimidating and his behaviour could be properly categorised as deplorable. Accordingly, the Committee concluded the Respondent’s conduct represented a significant and serious failing, capable of diminishing not only his own reputation but also that of the wider profession, and amounted to UPC.

Sanction

Submissions and evidence on behalf of the Respondent

  1. The Respondent gave evidence and was asked questions by the Presenter in cross-examination. In his submissions to the Committee the Respondent referred to the customer feedback document to demonstrate how his former clients view him as a professional. He submitted that he had made a “business mistake” and “will ensure this never happens again”. He stated that he realised the standard of his paperwork required improvement as noted by the Judge in the civil proceedings, and that he justified the fees charged to the Complainants to the Court. The Respondent maintained that he was assaulted by Mr X.
  1. The Respondent submitted that he has already made amendments to his paperwork, and that the Committee “will never see a letter of appointment like that again”. The Respondent took the Committee through the ARB’s Sanctions Guidance and submitted that he should be reprimanded for his paperwork, that a Penalty Order was a matter for the Committee, and that he hoped he would not be Suspended or Erased. The Respondent apologised and repeated that he will ensure his conduct is not repeated.

ARB Submissions

  1. The Presenter put the ARB’s submissions in relation to sanction and drew the Committee’s attention to the ARB’s Sanctions Guidance. She submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction and referred to aspects of the Committee’s determination in respect of the seriousness of the matters found proved. In terms of mitigating factors, the Presenter confirmed the Respondent has no previous regulatory findings. She stated the Respondent has attended and engaged with the regulatory process. In terms of aggravating factors, the Presenter submitted as follows:
  • The Respondent’s conduct in respect of Particulars 2 and 3 was repeated. In relation to Particular 2, the conduct took place throughout the entire project;
  • In relation to Particular 3, the Respondent’s conduct was a deliberate course of conduct described as hostile and intimidating by the Committee in its determination;
  • The Respondent demonstrated limited insight, despite the Respondent choosing to give evidence before the Committee on 2 occasions;
  • The Respondent has refused to acknowledge his failings. When asked to comment on the impact of his actions, he spoke of the impact of his conduct on himself rather than the impact on the Complainants;
  • The Respondent’s remediation is limited. His amended letter of engagement put before this Committee dated 15 November 2021 still falls short of Standard 4.4;
  • The Respondent’s conduct substantially impacted the Complainants. They were impacted financially upon receiving the invoice, and personally as they referred the Respondent to the ARB to ensure no one else suffered as they did.
  1. In conclusion, the Presenter submitted the Respondent’s lack of insight and meaningful remediation increased the risk of repetition of similar conduct. The Presenter referred the Committee to the following case law: Amao v. NMC [2014] EWHC 147 Admin and Bolton v. Law Society [1994] 1 WLR 512.

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 carefully considered all the evidence and submissions made during the course of this hearing. It 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, 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:
  • The Respondent’s conduct towards the Complainants following their dispute/complaint of the invoice was serious and could not be considered to be isolated or a “one off” lapse of judgement. The Committee had concluded in its decision on UPC this was deplorable conduct;
  • The Respondent’s failure to adequately communicate with the Complainants in relation to site visits and/or meetings and in relation to costs and fees was poor conduct between a professional and his clients, that was repeated throughout the duration of the project;
  • The Respondent’s failings have had an effect on the Complainants. They received significant correspondence from the Respondent that was unwanted, unpleasant and unnecessary, and did not resolve the dispute over costs and fees. Mrs X commented that she felt “harassed” by the repeated communication from the Respondent;
  • The Complainants attempts to resolve matters directly with the Respondent were ignored and they were subsequently subjected to civil proceedings;
  • The Respondent has not provided any evidence of genuine remorse or real insight into the seriousness of his failings and continues to blame the Complainants;
  • The Respondent has failed to take responsibility for his conduct and the impact of his actions, not just on the Complainants but on the wider public interest;
  • The Respondent had apologised to the Committee but had not apologised to the Complainants and continued to maintain his conduct was justified;
  • The Respondent had a number of opportunities to provide information to the ARB in terms of remedial action taken. The Committee admitted additional evidence put forward by the Respondent under Rule 15 on a number of occasions, but none of this evidence demonstrated meaningful remediation of the conduct it had found to amount to UPC.
  1. The Committee considered the Respondents long and unblemished career spanning 17 years as a mitigating factor.
  1. The Committee considered the Respondent’s evidence at sanction. He told the Committee he had made “substantial changes” to his letter of engagement which he now changes for each client, that he sends emails to clients which explain to clients in advance what work is being undertaken and that he invoices clients on a regular basis. He stated he “shouldn’t have trusted the Complainants at all… it’s just that they didn’t want to pay” and maintained that the Complainants were informed at each stage during the instruction of work, costs, and fees. When asked by the Presenter what impact his conduct has had on the Complainants the Respondent replied, “God no, they’ve made it all up…he’s tried it on”. When asked what he would do differently in handling a dispute or complaint, the Respondent agreed he would handle things differently, adding “I shouldn’t have trusted that client”.
  1. The Committee considered the Respondent’s amended terms of engagement letter dated 15 November 2021. The Respondent submitted in evidence that he now provides these terms of engagement to his clients. He stated that following the civil proceedings, the judge suggested he should “tighten up” his paperwork.  It was put to the Respondent in cross-examination that the amended terms of engagement still did not fully comply with Standard 4.4. The Respondent answered with the following: “I agree with you I need to add more information”, “I’ll add more information and give it back to the client to sign” and “it does need improving; it’s been explained to my clients verbally”. The Respondent’s answers were concerning to the Committee and demonstrated yet further his lack of insight and deficiencies in his attempts to remediate.
  1. The Committee was mindful of its role to declare and uphold proper standards of conduct and behaviour. The Committee 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.
  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 Respondent’s failings diminish both his reputation, and that of the profession generally and exposed his clients to substantial inconvenience and personal distress. The public would expect a terms of engagement letter to be provided by an architect in accordance with the relevant standard in the Code. The public would also expect any Architect to provide a clear explanation as to what work is required, updates as appropriate and most importantly obtains their client’s consent before incurring costs and/or fees. There is also an expectation that an Architect will deal with complaints and disputes appropriately and with courtesy.
  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 did not consider the Respondent’s conduct was at the lower end of the scale. His conduct involved a serious falling short in a number of areas of professional conduct.
  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 was 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 sufficient to protect the public and the reputation of the profession. 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 some loss and inconvenience to the Complainants, they obtained a successful outcome during the civil proceedings and were not asked to pay significantly over the amount initially offered to the Respondent.
  1. 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 nine months. 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.
  1. 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 was capable of being rectified. As a result, the Committee considered that such a sanction would be disproportionate and punitive given the suitability of a suspension order.
  1. The Committee therefore imposes a suspension order for a period of nine months.
  1. That concludes this determination.