Select Page


Download this page as a PDF

Mr Kieron Lynch

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr KIERON LYNCH (061368A)

Held on 18 – 22 July 2022

By Video conference

_______________

Present:
Andrew G Webster QC (Chair)
Stuart Carr (PCC Architect Member)
Martin Pike (PCC Lay Member)

_______________

The Architects Registration Board (“ARB”) was represented by Ms Catriona Watt of Anderson Strathern LLP (“the Presenter”).

Mr Kieron Lynch (“the Respondent”) did not attend the hearing but was represented by Mr Luke Wygas, of 4 Pump Court.

 

The Professional Conduct Committee (“PCC”) finds the Respondent guilty of Unacceptable Professional Conduct (“UPC”). It did so having found the particulars of the Charge proved only to the following extent:

1. The Respondent failed to make it clear prior to or at the time of issuing his letter of appointment to the Complainant dated 25 April 2018 that by acting as both architect and contractor his advice could no longer be impartial.

2. The Respondent’s actions at 1, lacked integrity in that he knew that there was a professional obligation on him to explain the effect of so acting and in deliberately not doing so he misled the Complainant.

3. The Respondent commenced work on the project without a Building Warrant in place.
…

6. The Respondent failed to adequately manage the Complainant’s project in that:

a. there were delays in the project throughout
b. works and materials paid for were not delivered
…
e. the work commenced without a building warrant

8. The Respondent failed to adequately deal with the complaint as required under Standard 10 of the Architects Code.

and that by doing so, he acted in breach of Standards 1, 6, and 10 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The disciplinary order imposed is a suspension order removing the name of the Respondent from the Register for a period of twelve months with effect from 22 July 2022.

 

Allegation

1. The Charge against the Respondent is that:

“He is guilty of unacceptable professional conduct and/or serious professional incompetence in respect of the project at 2 Chalmers Place, Tillicoultry, FK13 6RT, in that:

1. The Respondent failed to make it clear prior to or at the time of issuing his letter of appointment to the Complainant dated 25 April 2018 that by acting as both architect and contractor his advice could no longer be impartial.

2. The Respondent’s actions at 1, above, lacked integrity in that he knew that there was a professional obligation on him to explain the effect of so acting and in deliberately not doing so he misled the Complainant.

3. The Respondent commenced work on the project without a Building Warrant in place.

4. The Respondent failed to provide the Complainant with the financial documents and full accounting, as requested by her in October 2019 and March 2020 detailing what payments of up to £100,000 made by her during the project had been spent on and to which she was entitled as part of the project.

5. The Respondent’s actions at 4, above, were dishonest in that he knew that if he provided a full accounting it would be identified he had sought payment for or been paid for materials, contractor cost and project work which had not been not provided.

6. The Respondent failed to adequately manage the Complainant’s project in that:

a. there were delays in the project throughout
b. work and materials paid for were not delivered
c. there was late commissioning of the site investigation
d. there was a failure to obtain and include the groundworks in the original estimate
e. the work commenced without a Building Warrant
f. there was no programme of works or contract programme
g. there were no notes or minutes of progress meetings
h. there was no statement of work carried out
i. the Complainant had paid the agreed contract price but had only a partially completed project at the point the Respondent terminated the contract

7. The Respondent’s actions at 6, above, lacked integrity in that the Respondent knew he had a professional responsibility to carry out his work faithfully and conscientiously, including keeping the Complainant properly advised, and did not do so despite knowing of the difficulties arising throughout the project.

8. The Respondent failed to adequately deal with the complaint as required under Standard 10 of the Architects Code.

 

Background

  1. The charge comes before the Committee further to its jurisdiction under the Architects Act 1997, sections 14(3) and 15(1)(a) to determine whether an architect is guilty of unacceptable professional conduct (“UPC”) or serious professional incompetence (“SPI”); and if so, to determine whether a disciplinary order ought to be made in consequence thereof; and if so, what order should be imposed.

 

  1. The Respondent is a registered architect, with apparent interests in two companies: Kieron Lynch Architecture & Development Company Limited (“KLAD”) and Kieron Lynch Design & Build Limited (“KLDB”). The Report to the Committee drew attention to his involvement in the extension of a residential property at 2 Chalmers Place, Tillicoultry, (“the Property”) belonging to JM (“the Complainant”), from in or about 2018.  The report narrated that during the course of work, relations between the Complainant and the Respondent broke down following concerns that work and materials had not been provided despite payment having been made.

 

Preliminary matters and later applications

 

  1. At the start of the hearing the Presenter sought to amend the allegation by deleting “full” in particular 4 and by substituting “an” for “a full” in particular 5. She submitted that the proposed amendment was not prejudicial to the Respondent as the essence of the charge – a failure to account – remained the same.  Mr Wygas did not object to the application but noted that the application carried an implicit recognition of lack of specificity in the allegation.  The Committee, noting the absence of prejudice to the Respondent, determined to allow the amendment proposed.

 

  1. The Presenter also sought to allow the Witness Statement of David Millward to be received in evidence without being spoken to. She explained that ARB had endeavoured to contact Mr Millward to secure his attendance but had been unable to reach him.  She submitted that his evidence was essentially hearsay evidence and referred to matters also spoken to by the Complainant.  She accepted that the weight of his evidence would have to be appraised in the light of the absence of cross examination.  There was, she submitted, no prejudice to the Respondent.  Mr Wygas stated that the Respondent had no objection to Mr Millward’s statement being so received into evidence.  The Committee, having been reminded by the Chair that the admission of a witness statement in the absence of a witness was not just a matter of weight, but required the Committee to assess whether in all the circumstances it was fair to admit the evidence, determined that in the light of the apparent nature of the evidence of Mr Millward and the availability of other witness to fact on the matters spoken to by him, it would be fair to admit his witness statement as evidence; and so directed.

 

  1. After ARB’s evidence was heard, the Presenter also sought to amend the allegation by deleting “not” where it appeared as the penultimate word in particular 5 and by deleting particular 6.f in its entirety. She explained that the former was a typographical error and the latter amendment was proposed in the light of the evidence adduced from the Complainant during the hearing.

 

  1. In her submissions on the evidence the Presenter also sought to further amend the allegation by deleting particular 6.c in its entirety, in the light of the evidence adduced.

 

  1. Mr Wygas took no objection to either application. The Committee, having determined that no prejudice would be caused by the proposed amendments, allowed the same.

 

  1. Mr Wygas, after the conclusion of the ARB factual case sought to allow the Witness Statement of the Respondent and documents referred to therein, within Exhibit KL1, to be received in evidence without being spoken to. The Presenter stated that the ARB had no objection to the Respondent’s statement being so received into evidence.  The Committee, having again been reminded by the Chair that the admission of a witness statement was not just a matter of weight but required the Committee to assess whether in all the circumstances it was fair to admit the evidence, and also that the onus of proof was on the ARB, determined it would be fair to admit the Respondent’s witness statement and documents as evidence; and so directed.

 

  1. On the second day of the hearing the Presenter advised the Committee that it had become apparent that the appointment of the Chairperson as a member of the hearing panel by the Chair of the Committee had not been executed prior to the commencement of the hearing. It was explained that another legally qualified member of the Committee had originally been appointed to the hearing panel, but had become unable to attend.  A new appointment in respect of the current Chairperson had been sent to the Chair of the Committee, but due to a combination of absence and oversight it had not been executed prior to the commencement of the hearing.  The Presenter advised that it had been signed since the start of proceedings.  The Presenter moved the Committee in terms of Rule 16.a.(i) of the Professional Conduct Committee Rules (“the Rules”) to determine the allegation notwithstanding the absence of an earlier appointment of the Chairperson on the basis that there had been a technical fault in the proceedings and that it would nonetheless be fair to the Respondent and not contrary to the Architects Act 1997 to proceed.  Mr Wygas took no objection to the application made.  The Committee received the advice of the legally qualified Chairperson that the requirement for appointment within Rule 5 of the Rules was not a prescription within the Act and that a failure to appoint before the start of the hearing which was remedied before the end of the proceedings could be viewed as a technical fault in that the hearing panel as now fully appointed could hear the evidence already adduced again if necessary.  The Committee determined that the earlier absence of appointment should be viewed as a technical fault in the proceedings and that to proceed on the basis that the evidence adduced to date would be treated as evidence before the properly constituted hearing panel so as to avoid the need to start again with the possibility of a delay in the conclusion of the hearing, would be fair to the Respondent.

 

Response to allegation and Admissions

 

  1. Further to Rule 18 of the Rules, the Respondent having been invited to admit any the facts contained within the report before the Committee, Mr Wygas on his behalf stated that the Respondent admitted the facts in particulars 3, 6.e (as originally presented) and 8.

 

  1. In respect of those admitted facts and on behalf of the Respondent, Mr Wygas tendered a plea of guilty to the allegation of UPC. Otherwise, the Respondent denied the allegation.

 

Evidence

 

  1. The Committee heard and considered oral evidence from the Complainant and the Inquirer, Robert Johnston, Chartered Architect. The Complainant adopted her witness statement and gave further oral evidence.  Mr Johnston adopted his report and its appendices as his evidence and gave further oral evidence.  In addition, the Committee had regard to the witness statement of Mr Millward and the written statement and annexes thereto of the Respondent.  The Committee also had regard to the documentary material presented with the Report to the Committee.

 

  1. During the evidence, the Presenter sought to introduce additional documentary material in the form of a Payment Schedule and two photographs. Mr Wygas did not object to their receipt.  The Committee, noting that the documents related to matters referred to by the Complainant in her evidence determined, further to Rule 15.b. of the Rules to allow the additional material to be adduced and received into evidence.  They were added to the Appendix to the report to the Committee as pp 176-178 (the Payment Schedule) and p 179 (the photographs).  Further, Mr Wygas sought to introduce an email addressed to registrationdepartment@arb.org.uk dated 28 December 2021, from the Respondent, seeking to notify his resignation from ARB.  No objection to the receipt of that document was taken by the Presenter.  The Committee, further to Rule 15.b., allowed that additional document to be adduced and received into evidence on the basis that it would not be prejudicial so to do.  The Committee had regard to those additional documents also.

 

  1. The Complainant’s evidence was that the Respondent had attended at her place of work, an estate agency, with flyers for “his company”, offering a bespoke “one stop shop” service in relation to extensions and renovations, including the preparation of architectural drawings and completing the build. She was impressed that the Respondent was ARB and RIBA certified.  A letter of appointment was signed on 25 April 2018.  It envisaged that the work would be performed in two stages: the design; and the build.  The design work was to cost £11,000 plus VAT.  A design was offered and approved.  On 24 February 2019 the Complainant, her husband and KLDB entered into a contract for the build.  The build cost was to cost £86,718 inclusive of VAT (£72,265 excl. VAT).  In total, inclusive of VAT, the project was to cost £99,918.  The build contract provided for the work to be finished within 16 weeks or sooner “being cognisant” of the possibility of delay due to amongst other things adverse ground conditions.  The building work commenced in February 2019.  Unknown to her, at that time there was no Building Warrant in place for the work.  A Building Warrant was only obtained in September 2019.  The project was in an ex-mining area and the Respondent subsequently explained to the Complainant that the foundations for the extension needed more complicated pile foundations.  It was explained that this would entail additional cost.  In due course the extra cost of groundworks was identified by the Respondent as amounting to £19,890, together with project management and travel costed at £6,660.  The Complainant paid £101,000 to the Respondent.  The last payment was a payment of £6,000 to acquire windows after the Respondent had expressly requested that sum for that purpose.

 

  1. By October 2019 only foundations had been installed and the Complainant was concerned at apparent lack of progress with the build despite having paid £90,000 at that point in time. On 24 October 2019 she requested by email that the Respondent send “a detailed exhaustive list of everything you have paid for to date on our project including your fees and the costs of all work so far.  We also want to know the balance you have from the money we have paid upfront for the works that have still not taken place as yet.”  The Complainant received a response on 2 January 2020 providing some information on expenditure.  On 24 March 2020 the Respondent emailed the Complainant to advise that due to Covid and Scottish Government instructions he was to “shield” at home, work had ceased on site, and that “whenever your project can be restated … please remember you first will have to commit further expenditure”.  The Complainant emailed the Respondent in response, concerned as to where her money had gone and asking for information as to what progress had been made on various outstanding matters.  The Respondent replied on 25 March 2020.  In that letter the Respondent stated “in light of your various previous defamatory inferences and the current global pandemic upheavals ahead, my conclusion is that we can now surely only be parting company permanently.  Further correspondence then passed between them as the Complainant sought better information.  On 13 August 2020 the Complainant received a letter from KLDB bringing the build contract to an end.  On 18 August 2020 the Complainant submitted a complaint to ARB.

 

  1. The Complainant gave evidence as to the emotional and financial consequences for her in having an incomplete extension and having to fund further works to complete it. She estimated the further cost of at least £50,000 “to get a basic design completed.”

 

  1. The Complainant’s evidence was not materially challenged. She accepted in cross examination that she had received a schedule of works covering a period of 16 weeks.

 

  1. The Committee found the Complainant to be a credible and reliable witness of fact. Her evidence accorded with the documentary material available to the Committee.  She did not exaggerate.  She was clear and definite on matters of detail, such as the circumstances in which she had been asked to provide money for windows.

 

  1. The Committee also heard from Robert Johnston, the Inquirer. He spoke to and adopted into his evidence his report dated 6 December 2021.  The Committee found Mr Johnston’s oral evidence to be consistent with his report.  He spoke as to his expectations of the Respondent in the performance of the project.  His evidence was that the Respondent’s letter of 25 April 2018 set out that he was to be the architect, to design, to project manage and act as contractor.  He expressed the opinion that there was a risk to the Complainant as client if something went awry during the construction.  As the Respondent would be taking a profit as contractor, it was difficult for the Respondent to act impartially if the contractor did not perform.  He was cross-examined by Mr Wygas on his experience of construction projects not entailing the use of an architect.  In that regard he conceded that he had no such experience.  He also conceded he had no quantity surveying or structural engineering qualifications.  The Committee found Mr Johnston to be a measured and conscientious witness in the detail and qualifications to his evidence, both as provided in his Report and in his oral evidence.

 

  1. The Committee noted the evidence of Mr David Millward contained within his witness statement. He expressed a view on the value of the works that could be observed and the absence of any materials on site “in 2019”.  He also expressed views on the terms of the contractual documentation entered into.  As Mr Millward’s evidence was not tested, it was vague as to the timing of his observations and at times was of the nature of hearsay evidence.  As a consequence, the Committee placed no material weight on his evidence.

 

  1. The Committee also had regard to the witness statement of the Respondent. His evidence was that he is a Director of both KLAD and KLDB.  He stated that in or around April 2018 he decided to provide local businesses with marketing literature for KLDB in order to advertise “my business”.  He said that as a director of KLDB he wrote on 25 April 2018 to provide a fee proposal to the Complainant.  He stated that KLDB entered into a contract for the build component of the works on 24 February 2019.

 

  1. The Respondent in his witness statement accepted that works commenced without a Building Warrant. He stated that “As the contractor, I was under not under an obligation to provide any advice to the Complainant” (sic) and denied any lack of integrity in that regard.  He denied that in his role as a director of the contractor he or the contractor was obliged to provide the Complainant with the financial information requested.  He therefore denied the allegation of dishonesty that flowed from this.  He accepted various factual components of particular 6 of the allegation, but denied any personal responsibility, identifying that they were concerns “for which the Contractor had responsibility”. He denied any consequential lack of integrity.  He admitted that he had failed to adequately deal with the complaint made by the Complainant.

 

  1. In the absence of the Respondent, the Committee was unable to test his evidence and therefore placed limited weight on it. However, the Committee found his evidence of being a director of the two companies he referred to was consistent with the other evidence before it, of these being business vehicles of the Respondent.

 

Submissions of the parties

 

  1. The Presenter on behalf of ARB made submissions on the evidence. She relied upon the terms of her Report, including the witness statements referred to, the Inquirer’s Report and appendices, and the evidence bundle.  She submitted that in the light of the terms of the Architects Code: Standards of Conduct and Practice (“the Code”) and ARB Guidance on Serious Professional Incompetence and Unacceptable Professional Conduct, each and all of the particulars of the allegation as amended can be found proved on the balance of probabilities.

 

  1. As regards particular 1, under reference to Wingate v Solicitors Regulatory Authority [2018] 1 WLR 3696 and Tinnery v Financial Conduct Authority [2018] UKUT 0435 (TCC), she submitted it was evident from the evidence of the Complainant, the letter of 25 April 2018, the contract of 24 February 2019, references to “architect” in email correspondence from the Respondent dated 25 March 2020, the nature of the project, the evidence of the Inquirer referring to references to “architect” in the Respondent’s documents and his own admissions, that the Respondent had acted as an architect and contractor.  Further, under reference to Standard 1.3 of the Code, she submitted that he had failed to set out clearly to the Complainant the implication of working as was proposed in the letter of 25 April 2018, including the potential for conflict of interest explained by Mr Johnston.  His actions, she submitted, lacked integrity.

 

  1. She noted the Respondent’s admission of particular 3.

 

  1. She submitted as regards particulars 4 and 5 that the Respondent’s responses to the Complainant’s emails of October 2019 and March 2020 were inadequate. Under reference to Ivey v Genting Casinos [2017] UKSC 67 she submitted that the Respondent was aware that he had not provided the information requested and, in the light of the evidence of the Complainant as to the state of the project at the time of the request, he knew that if had provided the information requested it would be identified that he had sought payment for work not carried out.  An ordinary member of the public would, she submitted, view the Respondent’s action in not providing the information requested as dishonest.

 

  1. As regards particulars 6 as amended and 7, the Presenter submitted that the alleged failures were spoken to by the Inquirer in his Report and that the Respondent’s actions failed to meet the professional standards of frankness and integrity identified in Wingate, above.

 

  1. She noted the Respondent’s admission of particular 8.

 

  1. The Presenter invited the Committee to find the particulars of the allegation proved. Under reference to Standards 1.3, 4.1, 4.2, 6.1, 6.2, 6.3, 7.1 add 10, she submitted that individually and cumulatively the Respondents actions, including actions that lacked integrity and were dishonest, amounted to UPC.  In that regard she referred to the evidence of the Complainant as to the emotional and financial consequences that had occurred.  She advised that the ARB did not seek a finding in respect of SPI.

 

  1. Mr Wygas on behalf of the Respondent reaffirmed the admissions made. Otherwise, he submitted that the absence of specification in particular 4 as to the financial information that it was alleged ought to be provided was “a flaw”.  He drew attention to the absence of any evidence from a suitably qualified individual, such as a Quantity Surveyor, or a Bill of Quantities to allow the Committee to determine the value of the build so as to determine whether it cost too much for what had been done.  He also submitted that the Committee should have proper regard to the distinction between architect and contractor referred to in the Respondent’s “Defence” document, including that the Respondent was not retained as an architect for the project by the Complainant, who had contracted with KLDB.  He submitted that in so far as the Complainant entered into a “one stop shop” design and build contract with a contractor, KLDB, it would be a nonsense to suggest that the duties of an architect embedded in the contractor would be the same as that of an architect acting for the employer.  He submitted that ARB had failed to grapple with the nature of a design and build contract.  ARB’s approach was wrong, naïve, and ought not to be followed.

 

  1. As to particulars 1 and 2 he submitted that the Complainant was well aware that she was entering into a “one stop shop” arrangement with the Respondent’s company. She was not misled.  There was no scope for a lack of impartiality.  There was no lack of integrity.

 

  1. As to particulars 4 and 5 he submitted that it was still not clear what information was to be provided. In the absence of a clear understanding and proof of what had to be disclosed, then the allegation of dishonesty was flawed.

 

  1. As to particulars 6 and 7 he submitted that it was a matter for the design and build contractor (KLDB) to manage the build: by implication, not the Respondent as architect for the Complainant. Further, there was no evidence before the Committee as to what the obligation of an architect embedded in a design and build contractor would be expected to provide to an employer.  He reminded the Committee that the evidence of the Complainant was that a programme of works had been provided to her (relevant to particular 6(f) as originally presented and amended out on the application of the Presenter).

 

 

 

 

Findings of fact

 

  1. In reaching its decisions the Committee carefully considered the submissions made, together with the evidence presented to it, both in documentary form and in oral evidence.

 

  1. The Committee also had regard to the advice of the Legally Qualified Chair that on disputed issues of fact, the onus of proof was on ARB and that the standard of proof was the civil standard of the balance of probabilities. In determining the facts, the Committee considered the evidence in the round and noted that it was entitled to draw reasonable inferences from established facts, but that it was not to speculate.

 

  1. The findings of the Committee are:

 

Particular 1: FOUND PROVED.

 

  1. The Committee accepted the evidence of the Complainant, that she had been approached by the Respondent offering the services of a company, described as “his”, to provide a “one stop shop” architectural design and construction service; and that on 25 April 2018 on the notepaper of KLDB, subscribing his name with the suffix “RIBA” and capacity “Owner & Founder” the Respondent provided the Complainant with two documents: a letter and a Payment Schedule. The Committee noted that he did not subscribe either document as “director”, although the Committee accepted the Respondent’s evidence that he was a director of that company.  The letter stated that the service to be provided would be “Using my company’s full architect led design and build service …” It also provided, as regards the proposed build works “your architect project manages the works throughout”; and further “Remember, you only deal with my company and me. Only one point of contact from start to finish, hassle free for you.”  In the Payment Schedule that accompanied that letter the Respondent stated “your architect is on site every working day throughout your project, at no extra cost to you”.

 

  1. In the Committee’s view, the Respondent’s approach to the Complainant, initial discussions and the letter and Payment Schedule carried an implication of responsibility on the part of the Respondent towards the Complainant as architect in addition to any role that he might perform as an architect within his own company. In the letter he narrated “you only deal with my company and me” [emphasis added] which identified more than one point of contact.  Further he earlier stated, “Your architect project manages the work” [again, emphasis added], which in the view of the Committee carried, in context, an implication of direct relationship between himself and the Complainant.  That context included the Respondent describing himself as “Owner and Founder”, identifying his membership of RIBA and thus his architectural credentials, and the statement “Using my company’s full architect led design and build service …”.  In the view of the Committee, together that carried the implication that the Respondent would be the architect referred to as “Your architect”.  The Payment Schedule reinforced that impression by referring to “your architect is on site every working day …” [again, emphasis added].

 

  1. Further, the Committee took the view that in the circumstances of this case, where the Respondent identifies the company providing the build services as “my company”, which he describes himself as owner (and not qualified as joint owner) and a director of, the company is to be viewed as a trading vehicle of the Respondent and thus that the Respondent is, for the purposes of assessing a potential conflict of interest, the proposed contractor.

 

  1. The Committee also noted the Respondent’s admission of particular 3 of the allegation (“The Respondent commenced work on the project without a Building Warrant in place.”) In the view of the Committee, the admitted fact that it was the Respondent who was carrying out the work as opposed to his company supports the Committee’s view that at least for the purposes of assessing potential conflict of interest, the Respondent should be considered as the contractor, amongst other things.

 

  1. Standard 1.3 of the Code provides:

 

“Where a conflict of interest arises you are expected to disclose it in writing and manage it to the satisfaction of all parties.  You should seek written confirmation that all parties involved give their informed consent to your continuing to act.  Where consent is not received you should cease acting for one or more of the parties.”

 

Standard 6.3 of the Code provides:

 

“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.”

 

The Committee took the view that if the proposed arrangement came to pass the Respondent’s ability to impartially act as the Complainant’s architect, including project manage the build, would be undermined by the reality of the situation: the Respondent acting as the Complainant’s architect would be project managing the works undertaken by his company.  The letter did not set out the potential for conflict of interest that would arise where the Respondent acting as the Complainant’s architect, including with responsibility for the project management of the build, would be obliged to review the work of the contractor: a company owned and directed by the Respondent.  The Committee accepted the evidence of the Inquirer that it would be difficult for the Respondent to act impartially if the contractor did not perform.  The letter gives no notice that his actions as architect could no longer be impartial.  There was no evidence of any prior warning to that effect.

 

  1. The Committee therefore were of the view that particular 1 of the allegation was proved.

 

Particular 2: FOUND PROVED

 

  1. The Committee recalled that “Integrity” is an expression used to connote the higher standards which society expects from professional persons and which the professions expect from their own members. Integrity connotes adherence to the ethical standards of one’s own profession (Wingate, cited above).

 

  1. The Committee’s view was that the Respondent having failed to comply with Standard 1.3 of the Code, his actions described in particular 1 lacked integrity. As the author of the letter to the Respondent dated 25 April 2018 he misled the Complainant as to the potential that acting as architect and as contractor in the provision of build services by his company, the Respondent’s advice as the Complainant’s architect could no longer be impartial.

 

Particular 3: ADMITTED AND FOUND PROVED

 

  1. The Respondent admitted this particular in his witness statement and that was confirmed on his behalf by Mr Wygas. The Committee noted the uncontested evidence of the Complainant that work on the build began in February 2019 and that the Building Warrant was granted in September 2019 and thus found the particular proved.

 

Particular 4: NOT PROVED

 

  1. The Committee had regard to the terms of the letter of 25 April 2018 and the contract of 24 February 2019. In the view of the Committee, neither document carried the obligation for the Respondent, either personally or via his company providing the build service, to provide a breakdown of expenditure incurred.  The nature of the service to be provided by the company was the provision of the build for a fixed price (payable in instalments), subject to additional costs that might be incurred because of specified circumstances, set out in clause D4 of the contract.  Clause I set out the contractor’s responsibilities.  No provision was made for providing a breakdown of the contractor’s costs.  The Committee therefore concluded that there was no entitlement in terms of the contract and therefore no entitlement in terms of the project.

 

  1. The Committee further considered the professional responsibility of the Respondent in terms of the Code. The Committee recalled that the Standard 6.3 of the Code provides in the context of an architect’s “professional work”:

 

“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.”

 

Notwithstanding the terms of earlier correspondence, the build contract that was entered into in February 2019 contained no provision for the Respondent to act as the Complainant’s architect.  The view of the Committee was that whilst the Respondent may not, despite the impression created by the letter and Payment Schedule of 25 April 2018, have entered into any direct contractual obligation with the Complainant to act as her architect, the Respondent nevertheless remained a registered architect with professional obligations.  Within his company as a registered architect he was uniquely positioned to direct and manage all the actions of that company.  He offered an architect led service.  In the view of the Committee, in so leading the work, the work of the company is properly to be seen as the professional work of the Respondent.  Accordingly, the Code applies to his conduct in the provision of that service, including Standard 6.3.

 

  1. The Committee’s view was that the obligation to keep the client informed in such a context should not exceed the duty that would be expected of an architect acting for a client of a design and build contractor on a fixed price contract. Thus, the Respondent’s professional obligation was to provide what the client would be entitled to under such circumstances.  Where, as here, there was no obligation to provide a breakdown of costs in respect of the anticipated works, there was no further obligation on the Respondent.  In the event, the Respondent did however provide a breakdown of costs on 2 January 2020.  As regards the additional adverse groundworks, in his response of 2 January 2020 the Respondent provided the Complainant with an explanation.

 

  1. The Committee therefore concluded that particular 4 had not been proved

 

Particular 5: NOT PROVED

 

  1. Particular 5 was an allegation of dishonesty in relation to the conduct averred in particular 4. As particular 4 had not been proved, particular 5 is also not proved.

 

Particular 6: ADMITTED AND FOUND PROVED IN RELATION TO 6.e. (the work commenced without a Building Warrant); FOUND PROVED in relation to 6.a. and 6.b. (there were delays in the project throughout; and work and materials paid for were not delivered); Otherwise, NOT PROVED.

 

  1. The Respondent admitted that he failed to adequately manage the Complainant’s project in that the work commenced without a Building Warrant. The Committee found that build work commenced without a Building Warrant.  In his evidence Mr Johnston said that the commencement of work that requires a Building Warrant when no warrant exists constitutes an offence.  That is indeed the case: Building (Scotland) Act 2003, section 8(2).  By allowing the work to commence the Respondent exposed the Complainant to the prospect of criminal proceedings.  The Committee accepted the evidence of the Complainant that she was unaware that work had started without a Building Warrant.  The Committee’s view was that by managing the work in such a way that allowed work requiring a Building Warrant to be commenced without such a warrant and without the Complainant being aware of that state of affairs amounted to a failure to adequately manage the Complainant’s project.

 

  1. The Committee also accepted the Complainant’s evidence that there were delays in the project. It noted support for the Complainant’s evidence in an email from the Respondent to the Complainant dated 24 October 2019 at 17:15 in which he advised that his joinery sub-contractor had “seriously let me down” and that he had to postpone when they would start to the effect that “no further progress on site can now be expected to be achieved before the January return to work at the earliest.”  In the event, the Complainant explained under reference to the photographs that little more that timber frame walls and a roof had been erected before the build contract was brought to an end in August 2020.  The build contract provided for a construction period of 16 weeks.  Even allowing for that full period from the end of October 2019 when the joinery work could otherwise have begun apart from the “let down” the Complainant provided a list of incomplete work to the Respondent in an email dated 24 March 2020, including wiring, plumbing, heating, kitchen, bathroom, windows, and doors, amongst others.  The Respondent did not dispute the list of incomplete work in either correspondence or in evidence.  The Committee accepted the list as an accurate statement of work not performed.  As more than 16 weeks had passed since the end of October 2019 the Committee was of the view that these matters were delays in the project.  They remained unfulfilled when the build contract was brought to an end on 13 August 2020.

 

  1. As regard the question of whether work or materials were paid for and not delivered, the Committee accepted the uncontested evidence of the Complainant that she had paid £6,000 for windows, but that they had not ever been delivered.

 

  1. As regard the remaining parts of particular 6 of the allegation, the Committee’s view was that inclusion of groundworks in the original estimate was not a matter of management of the project. In the event, there was a specific provision for any additional groundworks.  Further, standing the nature and terms of the build contract there was no obligation on the Respondent as contractor to maintain notes or minutes of progress meetings or create a statement of work carried out.  In the light of the Committee’s view as to the extent of the Respondent’s duties when acting as contractor, the Committee determined that such documentation would not necessarily be available to an independent architect acting for the client and therefore was not to be expected of the Respondent here.  Further, the Committee was not able to conclude on the evidence that the Complainant had paid the agreed contractual price.  The build contract provided for a fixed price plus any additional cost incurred for works under clause D4.  The method of calculation for the additional works is not specified.  The Committee had evidence in the form of an invoice from MG Construction Ltd for piling and ground beam works.  It did not have evidence as to whether this was the full extent of the cost incurred in the adverse ground works, nor reliable evidence upon which to test the reasonableness of any uplift that could reasonably be charged on such third-party cost in determining how much additional cost was properly incurred.  Without that information, the Committee was unable to reach a conclusion that the Complainant had indeed paid the agreed contract price, irrespective of her evidence of what she had paid.

 

Particular 7: NOT PROVED

 

  1. The Committee was not satisfied on the evidence that the Respondent’s conduct in managing the project lacked integrity. The build contract was for a fixed sum plus such additional cost as might be incurred due to, amongst other things, additional adverse ground works.  In the event there were such works, leading to an increase in the overall cost of the build and the time for completion; and there were difficulties in securing labour.  These were matters that the Respondent had to respond to but were not his actions.  Furthermore, the Committee identified no evidence, nor could it reasonably infer, that in requesting money for windows the Respondent had intended to not deliver them.  In addition, the Committee noted the evidence of Mr Johnston that despite the potential for criminal proceedings for commencing work without a Building Warrant, provision exists for a retrospective application. It drew the inference that there may be circumstances where, in the exercise of professional judgment such work would be permitted to proceed in the light of what is a remote prospect of proceedings (provided the employer was fully informed of the risk).  In the view of the Committee the Respondent clearly recognised that there would be difficulties bringing the build to a completion on time, acted upon them in commencing the build, and in his correspondence with the Complainant sought to explain the difficulties.  In those circumstances, and recalling its understanding of integrity above, the Committee was not satisfied that in respect of the proved aspects of particular 6, including reporting of the same the Respondents conduct fell below the standard to be expected of architects such as to be characterised as lacking integrity.

 

Particular 8: ADMITTED AND FOUND PROVED

 

  1. The Respondent admitted this allegation in his witness statement and that admission was confirmed by Mr Wygas on his behalf. The Committee had regard to build contract that contained at Section K a dispute resolution procedure.  Further the Committee noted the Complainant’s various written requests from 24 October 2109 for information from the Respondent.

 

  1. Standard 10.2 of the Code provides:

 

“Complaints should be handled courteously and promptly at every stage and as far as practicable in accordance with the following timescales:

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

 

  1. Other than an immediate response on 25 October 2019 to ask why the information requested was sought, the Respondent did not respond to the 24 October 2019 email until 2 January 2020. Whilst the email of 24 October 2019 is not expressly referred to as a complaint, the view of the Committee was that, following on from the Respondent explaining the proposed delay in the commencement of joinery work until January 2020, it was of the nature of a complaint requiring a response.  The time taken to respond was, in the view of the Committee, inadequate in the light of Standard 10.

 

Findings in respect of UPC

 

  1. Having found particulars 1, 2, 3, 6.a, 6.b and 6.e and 8 of the allegation proved the Committee turned to the issues of UPC (ARB not seeking a finding in respect of SPI).

 

  1. As to UPC, the Committee reminded itself of the advice of the legally qualified Chairman that for conduct to amount to UPC it must be conduct that falls short of the standard required of a registered person; and that it must be serious. Not every shortcoming on the part of an architect, nor failure to comply with provisions of the Code, will necessarily result in a finding of UPC.  However, a failure to follow the Code is a factor that will be taken into account.  Mere negligence does not constitute misconduct.  A single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts.  The decision was one for the judgment of the Committee, in which there was no burden or standard of proof.

 

  1. By way of preliminary comment, the Committee recalls its finding above that within his company as a registered architect he was uniquely positioned to direct and manage all the actions of that company. He offered an architect led service.  In the view of the Committee, in so leading the work, the work of the company is properly to be seen as the professional work of the Respondent.  Accordingly, the Code applies to his conduct in the provision of that service

 

  1. As regards particulars 1 and 2, the Committee determined that the Respondent had breached Standard 1.3 of the Code. The Respondent ought to have advised the Complainant in writing of the potential for conflict if he was at one and the same time to be the Complainant’s architect, with responsibilities to project manage the build and at the same time, by virtue of his ownership, the contractor undertaking the build work.  The prospect that the Respondent’s project management of the build for the Complainant might conflict with the ability of the contractor to deliver is not difficult to comprehend.  The Respondent did not do so.  Had he done so the Complainant may have questioned the desirability of the project in the Respondent’s hands in the manner proposed by him, despite her attraction to the “one stop shop” concept.  His conduct was, in the judgment of the Committee, deliberately misleading in that it sought to obscure the role the Respondent was to perform as the Complainant’s architect.  The Committee concluded that the Respondent’s failure not only affected the Complainant’s ability to make an informed choice as to how to proceed, it also materially affects the confidence of the public in the profession in so far as it undermined the duty of impartiality set out in the Code, and the expectation of integrity on the part of members of the profession.  The Committee therefore determined that both in respect of particulars 1 and 2 of the allegations the Respondents actions were sufficiently serious to amount to UPC.

 

  1. As regard particular 3, the Committee noted the plea of guilty tendered on behalf of the Respondent.

 

  1. As regards particular 6.e. the Committee noted the plea of guilty tendered on behalf of the Respondent.

 

  1. As regards particulars 3 and 6.e the Committee’s view was that these matters were serious in so far as it raised the prospect of criminal proceedings against the Complainant.

 

  1. As regards particular 6.a. and 6.b. the Committee determined that the delays in the project from at least October 2019 were substantial and caused significant emotional upset to the Complainant and were therefore serious. The Respondents failure to manage the project within the timescale provided for thereafter was, in the view of the Committee, a failure to comply with Standard 6.1 of the Code (“You are expected to carry out your work with skill and care and in accordance with the terms of your engagement”).  The taking of money for windows but not then procuring them for the Complainant was also a serious failure on the part of the Respondent and a breach of Standard 6.1.

 

  1. As regards particular 8, the Committee determined that the Respondent had breached Standard 10 of the Code. In the Committee’s view the Respondent’s failure to promptly engage with the Complainant adversely impacted on the Complainant in that it caused unnecessary distress.  Further, in the judgment of the Committee it also negatively impacted upon the public confidence in the profession that derives from the expectation that complaints will be promptly responded to.  The Committee’s view therefore was that the Respondents failure was serious.

 

  1. Cumulatively, but also if necessary taken on their own, each and all of the proven particulars (1, 2, 3, 6.a, 6b, 6.e and 8) were determined by the Committee to be serious shortcomings on the part of the Respondent to which the descriptor UPC is to be applied. The Respondent’s conduct fell short of the standard to be expected of an architect.  Members of the public would, in the opinion of the Committee, be shocked that an architect had conducted himself in such a manner.  The Committee therefore concluded that the Respondent was guilty of UPC on each and all of particulars.

 

Sanction

 

  1. The Committee went on to consider whether a disciplinary order was necessary.

 

  1. The Presenter submitted that the Committee should have regard to ARB’s Sanctions Guidance (2022) and the Committee’s earlier findings. She submitted that the Respondent represented an ongoing substantial risk to public in the light of the manner in which he had acted.  He had demonstrated no real acknowledgement of the complaint, other that in respect of the work conducted without a Building Warrant.  There was, she submitted, little or no apparent insight or remorse across the established allegation.  The limited risk of prosecution for the Complainant ought not to eclipse that an offence had been committed.  She accepted that the Respondent had a good disciplinary record. However, the balance of aggravating factors outweighed mitigating factors.

 

  1. She submitted that a sanction was required. The Respondent’s conduct was serious.  A reprimand was not appropriate as the only relevant mitigation was the Respondent’s past good conduct.  As to a penalty order, she submitted that the nature and number of matters of concern and the Respondent’s lack of integrity and insight took the case beyond one appropriate for a penalty order.  She submitted that it may be appropriate to consider suspension.  Suspension would have a deterrent effect and send out a message to the profession and the public of conduct unbefitting of an architect.  Whilst the Respondent’s request for resignation from the Register was on hold pending the regulatory proceedings, the Committee could not know if the conduct was likely to be repeated.  She invited the Committee to consider the possibility of erasure as there were elements of recklessness in the Respondent’s conduct in the finding of lack of integrity: the Respondent had put his interests before those of his client.

 

  1. In reply on behalf of the Respondent, Mr Wygas submitted that whilst the Committee had found that the Respondent had lacked integrity, in the light of the Complainant’s evidence as to her enthusiasm for a “one stop shop” it was likely that the project would have gone ahead even if the Respondent had highlighted the concern upheld by the Committee. As regards the works that required a Building Warrant, he invited the Committee to consider that the prospect of criminal prosecution was remote.  As to the handling of the complaint, he submitted it was a minor matter in the context of the proceedings as a whole.  He reminded the Committee that on 28 Dec 2021 the Respondent had resigned and “fell on his sword.”  He submitted that was evidence of insight and remorse.  He referred the Committee to the Respondent’s witness statement at para 35 and 36.  He submitted that the Respondent recognised that his design and build practice cannot go hand in hand with being a registered architect.

 

  1. Turning to the Sanctions Guidance he submitted there was no risk to the wider public as the Respondent is no longer an architect. The Respondent had not been the subject of prior disciplinary proceedings.  He admitted four out of seven allegations against him.  The Respondent had not been found to have acted dishonestly.  There was no ongoing risk to the public.  The events in question represented an isolated failing.  The Respondent had shown insight and remorse.

 

  1. Mr Wygas submitted that it would be appropriate therefore to impose no sanction. The Respondent’s resignation represented an exceptional circumstance justifying no order.  The public had been protected by the Respondent’s own actions.  In the circumstances the imposition of any sanction would be simply to penalise the Respondent.  If the Committee was minded to impose a disciplinary order, he submitted that the Respondent had shown genuine insight and remorse.

 

  1. The Committee had regard to the advice of the legally qualified Chairperson that the primary purpose of sanctions is to protect members of the public, to uphold public confidence in the profession and to declare and uphold proper standards of conduct and competence. Whilst sanctions may have a punitive effect, they are not imposed to punish architects.  The Committee was to act proportionately, balancing the interests of the Respondent with the public interest in determining whether and, if so to what extent, a disciplinary order should be imposed.

 

  1. The Committee identified as aggravating factors in respect of the Respondent’s conduct that there was a substantial risk of harm to the public. The Committee noted the Respondent’s resignation, or more correctly, attempt at resignation from the Register.  The Committee noted that the was nothing to prevent the Respondent from withdrawing his request for resignation, and that he could in any event seek to be restored to the Register after resignation.  The Committee also noted the Respondent’s apparent desire to proceed with his design and build business.  The Committee took the view that resignation in the circumstances did not carry a necessary implication of insight.  Further, the Committee was unable to test in evidence the Respondent’s insight and remorse and so placed little weight on the Respondent’s statements in the witness statement.  In the absence of persuasive evidence of insight, the Committee was concerned as to the risk of repetition should the Respondent remain registered.  Furthermore, his past conduct, although related to one client demonstrated a pattern of systemic failures.  The Respondent had not recognised his failings when challenged and he failed to take remedial steps.  His actions were deliberate.

 

  1. The Committee also had regard to various mitigating factors. The Committee noted that the Respondent had no previous adverse regulatory history.  The circumstances related to only one client.  The Respondent had made limited admissions.

 

  1. The Committee first considered whether it would be appropriate to impose no sanction. However, it concluded that the level of seriousness of the Respondent’s conduct was not so low as to render it unfair or disproportionate to impose a sanction.  The Respondent’s conduct was deliberate and required to be sanctioned.  His resignation did not render his circumstances exceptional for the reasons set out above.

 

  1. The Committee then considered whether a reprimand would reflect the seriousness of its findings. The Committee took into account the Respondent’s previous good disciplinary history.  However, the Committee determined that the Respondent’s offending was not at the lower end of the scale of seriousness.  His conduct, although referrable to a single client, related to action at the commencement, during and at the end of the project.  His failures to comply with Standards within the Code were wide-ranging.  His actions were deliberately misleading.  If repeated, there is a material risk to the public.  His resignation was not conclusive as to his ability to continue as a registered architect after the conclusion of the proceedings.  The Committee saw no material evidence of insight on the part of the Respondent as to his conduct.  The Committee was not therefore satisfied that there was no risk to the public in the future.  His actions demonstrated a wide-ranging failure to give effect to professional standards designed to protect the public and the reputation of the profession.  Therefore, the Committee determined that a reprimand would not mark the seriousness of the Respondent’s conduct.

 

  1. The Committee next considered whether to impose a penalty order. For the reasons set out above, the Committee determined that the Respondent’s conduct demonstrated a deliberate and wide-ranging failure to adhere to relevant professional standards.  In the circumstances, a penalty order would not be sufficient to protect the public or to uphold public confidence in the profession or maintain professional standards.  The reputation of the profession relies on adherence by its members to the standards of conduct it sets for itself.  Deliberate non-adherence significantly undermines that confidence.  The imposition of a financial penalty on the Respondent would not send out the appropriate signal to the profession and to the public about what behaviour is unbefitting of an architect.

 

  1. The Committee determined that a suspension order was an appropriate and proportionate disposal order. It reflected the seriousness of the Respondent’s conduct and his lack of sufficient insight and remorse.  The Respondent’s conduct was capable of being rectified and a period of suspension would afford the Respondent an opportunity to reflect on his actions whilst at the same time sending a message to the profession and the public that his conduct fell below the standard to be expected of a registered architect.  The Committee tested whether a suspension order would be proportionate by considering the possibility of an erasure order.  However, the Committee did not regard the Respondent’s conduct as fundamentally incompatible with continuing to be an architect and noted the absence of any finding of dishonesty or of persistent lack of insight.  It therefore settled on the imposition of a suspension order.

 

  1. The Committee acknowledged that a suspension order was likely to have a significant impact on the Respondent. However, it considered that it was appropriate to suspend the Respondent from the Register in order uphold proper professional standards and public confidence in the profession.

 

  1. The Committee therefore determined to impose a suspension order for a period of twelve months. In settling on that period, the Committee determined it would be the minimum necessary to uphold public confidence and professional standards and would also provide a sufficient period for the Respondent to reflect on the findings of the Committee and the requirements of the Code.

 

  1. The disciplinary order imposed is a suspension order removing the name of the Respondent from the Register for a period of twelve months with effect from 22 July 2022.

 


Download this page as a PDF