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Mr Lekia Lebari-Orleans

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

LEKIA LEBARI-ORLEANS (082803C)

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Held via video conference on

22-25 August 2023 and 13-15 May 2024

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Andrew G Webster KC (Legally Qualified Chair)

Robert Dearman (PCC Architect Member)

Alastair Cannon (PCC Lay Member)

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The Architects Registration Board (“the ARB”) was represented by Mr Greg Foxsmith (“the Presenter”) of Kingsley Napley LLP.

Mr Lekia Lebari-Orleans (“the Registered Person”) did attend the hearing and was not represented.

 

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

(1) The Registered Person failed to provide documents to which the client was entitled.

(2) The Registered Person failed to act without undue delay and within an agreed timescale.

(3) The Registered Person failed to respond and keep the client informed of the progress of work contrary to Standard 6.3 of the Architects’  Code.

and that by doing so, he acted in breach of Standards 1.1, 4.6, 6.2 and 6.3 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed by the Professional Conduct Committee is a £2,500 penalty order. 

 

Allegation

1.  The Charge made against the Registered Person is that he is guilty of Unacceptable Professional Conduct (“UPC”). The particulars in support of the Charge (as amended (see below) are:

ii. The Registered Person failed to provide documents to which the client was entitled;

iii. The Registered Person failed to act without undue delay and/or within an agreed timescale;

iii. The Registered Person failed to respond and keep the client informed of the progress of work contrary to Standard 6.3.

 

Background

2. 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 UPC; and if so, to determine whether a disciplinary order ought to be made in consequence thereof; and if so, what order should be imposed.

3. The Registered Person is a registered architect. On or about 25 January 2022 a complaint was made to ARB by Mr John Agboola (“the Referrer”) that the Registered Person, having been engaged as an architect, had failed to deliver drawings despite having been paid and that he had ceased communicating with the Following investigation, a report dated 30 March 2023 was submitted to the Committee.

Preliminary matters

4. The Presenter sought to amend the allegation to substitute references to the “Registered Person” for references to “There was no objection to that application by the Registered Person. The Committee determined to allow the amendment further to power to do so within Rule 26 of the PCC Rules. The Committee determined that the amendment reflected and clarified the intent of the allegation, as one directed towards the Registered Person, and that the amendment could be made without injustice.

5. The Registered Person sought the admission of late documents. The Presenter objected to the receipt of some of the documents. The Presenter characterised the documentation as falling into three groups: group (1) pages 1 -8, related to pleadings in civil proceedings brought relative to the subject matter of the allegation before the PCC; group (2) pages 9-26 consisted of various emails; and group (3) pages 27-36 was a chronology of events. The Presenter objected to the late receipt of the documents in groups (1) and (3). He had no objection to receipt of the documents in group (2). He submitted that the group (1) documents constituted only part of the documentation in the civil They were partial and, in any event, irrelevant. The Registered Person could lead and challenge evidence in these proceedings without reference to the civil litigation. As for the documents in group (3) the Presenter submitted that he had had limited opportunity to consider the same, but submitted from that limited examination that it did not appear to narrate a comprehensive timeline of events and was therefore partial and potentially misleading. He submitted that the chronology could be utilised by the Registered Person as an aide memoire, without being lodged.

6. The Registered Person submitted in support of the receipt of the documentation that it had been shared with ARB, it was relevant because it demonstrated the conversation between him and ARB and set out the order of events.

7. Further to power to do so within Rule 19 of the PCC Rules, the Committee determined to allow receipt of the documents in group 2 only. Those documents appeared to be evidence of a primary nature and of potential relevance; and no objection was taken to their admission. The Committee determined that it would be fair to admit the The same could not be said of the material on groups (1) and (3). The Committee determined that the material was not of the nature of primary evidence and in any event of doubtful relevance; and in any event was apparently partial. The Committee determined that to admit those documents would not be fair.

8. Whilst the Committee was considering its findings of fact the Registered Person submitted a letter to ARB, dated 10 May 2024, in which he raised concerns as to the conduct of the Referrer in September 2023, which the Registered Person considered to be threatening. The Committee having considered the letter and related correspondence between the Referrer and the Registered Person, and the Registered Person and ARB determined that it was not material to the immediate task of fact finding. The Committee reminded itself that it had to determine the allegation before it. The conduct referred to in the correspondence did not relate to the events in 2020 – 2022 that were the subject matter of the allegation. Furthermore, by the time it considered the letter the Committee had reached its conclusions on issues of fact principally by reference to the documentation before it, on which there was no dispute in the The Committee determined that any issue of credibility or reliability of evidence that might have arisen out of matters alleged by the Registered Person in September 2023 were not such as to have materially influenced the decision which follows, based as it is on contemporaneous documentation. The Committee therefore determined that it was not necessary to invite the ARB to respond, nor to invite parties to make further submissions to the Committee in respect of the correspondence.

 

Response to Charge and Admissions of Fact

 

9. The Registered Person, upon the Charge having been read to him, made no admission, and denied the Charge.

 

Evidence

10. The Committee heard oral evidence from (1) the Referrer, and (2) the Registered Person. The Committee also had regard to the evidence presented in a witness statement by the Referrer, dated 5 May 2023, and to the documentary material presented with the Report to the Committee together with documentary material produced in a defence bundle and the documentation that was admitted late. The Presenter and the Registered Person made oral submissions on the evidence.

11. In his witness statement the Referrer stated that in or about September 2020 he engaged the Registered Person to provide services in respect of a residential development project in Nigeria. The Registered Person’s fee proposal provided for payment in stages, with invoicing at 5 points of progress. During the course of the project, the first three invoices issued by the Registered Person, up to 18 December 2020, were The Referrer referred to having to “chase” for drawings in June 2021. In July 2021, his structural engineers in Nigeria required drawings in DWG format. He agreed with the Registered Person that DWG drawings would be produced but for an additional charge of £1,800. On 4 August 2021 the Registered Person, to “help with pre and post planning approval cash flow” agreed to split the payment for the DWG drawings into two instalments “60% pre [planning] approval – £1,080 … 40% post [planning] approval – £720”. The Registered Person ’s fourth invoice referred to the “purchase of DWGs – part 1) and was in the amount £1,080. It was paid on 16 September 2021. The Referrer was advised in August 2021 of a problem with the proposed stair in the property. The Registered Person acknowledged at that time that there was an issue with the stair but advised that it would be resolved in subsequent work. During September to December 2021 the Referrer continued to press the Registered Person to produce drawings. Only in January 2022 did the Registered Person state that the drawings were available but insisted upon payment of a final payment “to settle the account” before doing so. On 7 January 2022, the Registered Person invoiced the Referrer seeking, amongst other things, £720 for “purchase of DWGs – part 2”, in addition to the balance due on the original fee proposal. The Referrer paid the balance of the original fee proposal but questioned the Registered Person, by email, as to the requirement to pay the £720 balance for the DWG drawings, referring back to the concession given in the letter of 4 August 2021 and that planning permission would only be obtained once the DWG drawings had been provided to his team in Nigeria. The Referrer said that despite repeated requests, he never received a reply from the Registered Person, nor final drawings, until after he made a complaint to ARB. The Registered Person continued to demand payment of the £720.

12. In his oral evidence the Referrer adopted his written statement as his evidence, save in respect of certain matters which, due to the passage of time, had changed, which he went on to He confirmed that he had bought land in Lagos for the erection of a holiday home. He had found the Registered Person as an architect registered in the United Kingdom through a friend of his son. On 1 September 2020 he received an email setting out the proposed work to be done by the Registered Person, including arrangements for staged payments and with each stage to be paid before proceeding to the next stage. He said his focus was on achieving an end product, rather than the process of getting there. He was not, at that time, concerned as to time. He referred to an email dated 13 September 2021 in which the Referrer identified PDF and DWG drawings to be provided; and a date – 30 September – as the date when the Referrer would “get a design package” to him. Reference was made in that email to an invoice being attached for “Stage 4”. He said under reference to further narrative in the email that “we normally require 3-4 weeks to complete a Stage 4 Technical Design package”, that it indicated to him that delivery of final drawings might be into October 2021. This was the first time he had been advised of a delivery date.

13. He referred to a bank statement demonstrating payment of all invoices rendered to him by the Registered Person. He said that his desire was to get to a position where he would get planning approval. He paid the invoices to get to that goal. He did not want to delay matters.

14. He said he had been contacted by his structural engineers, who needed structural drawings. He spoke to the Registered Person who agreed that the structural engineers would benefit from DWG files. The Registered Person had said he already had the information, but to release it he was going to charge for The Registered Person was however slow to respond. He had to chase. In the email dated 4 August 2021 the Registered Person offered that payment for the DWGs be made with 60% paid before planning approval and 40% after. The Referrer said he paid the 60%.

15. He met the Registered Person in London in September 2021 and asked for a review of the design in relation to the location of a He was advised by email on 3 October 2021 that the Registered Person was “a little bit behind” but was trying to complete the project “for the end of the week”. Although he had booked travel and an hotel to meet the Registered Person on 8 October 2021 the Registered Person had gone on holiday and the meeting was rescheduled. Thereafter the Registered Person became difficult to contact. They did meet in Liverpool on 13 November 2021. The Registered Person showed him some of the finished drawings and had said he would get the final drawings that week. He did not receive those drawings. On 18 November, the Registered Person wrote to say, “they are nearly there”, but he was left waiting for the final drawings. After sending messages and trying to call him, the Registered Person replied on 15 December 2021 with an apology for “disappearing” but with a hope to produce the drawings by the end of that week. On 16 December 2021 he had made a further request for the drawings to be provided the following day, but never received a response. After further chasing emails on 6 January 2022, the Registered Person advised by email that he would upload final drawings that evening but that did not happen. On 7 January 2022, the Registered Person advised that he was holding off issuing the final drawings pending payment. The Referrer stated that the project had not at that point in time reached a post-planning consent stage. By 7 February 2022, the Referrer had returned to in Lagos with no reply to further chasing emails.

16. The Referrer explained that whilst in para 56 of his written statement he said he had not received the drawings, after he had raised his complaint with ARB, he took civil action for recovery of money or drawings. The Registered Person was ordered to deliver the final drawings to him or to refund the Referrer, with interest. He said that 4 drawings remain outstanding.

17. As to impact, he said that the project had stalled and cannot progress. 

18. In cross examination the Referrer was, at length, tested on but did not depart from his evidence in chief. In particular he was asked whether he accepted that an email sent to him by the Registered Person on 4 September 2021 which sought, at bullet-point 2, the payment of remaining fees “for providing DWGs” amounted to a new agreement between him and the Registered Person. He said that that he had not requested of the Registered Person anything more than had been agreed to be provided in the original agreement of 1 September 2020 and the further agreement to provide DWG drawings with staged payments, on 4 August He denied that he was responsible for delays in progress of the project and in particular that the project had been delayed for 6 months between February and August 2021 whilst he consulted with the relevant planning authorities in Lagos. He denied instructing any change regarding the toilet provision within the plans, or in respect of the staircase or the swimming pool. He denied that an email sent by him on 5 September 2021 in response to that of 4 September 2021 was a new instruction to provide construction information. He said he was not aware of any delay in the work as at 5 September 2021. He recalled that on 13 September 2021 the Registered Person had indicated the work would take two to three weeks to be completed.

19. In re-examination the Referrer stated that that he did not ask for any change to the stair proposed, he said he simply requested information. He clarified that as regards the proposed toilet, he had suggested a change but the Registered Person had recommended no change.

20. In his evidence, the Registered Person said in contracting he had been careful to avoid expensive design work that might be rejected at the planning stage, and so the proposed payment arrangement of 1 September 2020 was arrived at. He said that drawings were issued on 30 March Nothing was heard from the Referrer until 3 June 2021. Changes were requested and were undertaken without charge. The Referrer then asked for DWGs to be provided. The Registered Person was concerned about liability. He consulted his insurers. They advised that he request a fee for the information sought. On 5 August 2021 to assist the Referrer with cash flow he agreed to accommodate a split in payment for that work. Shortly thereafter, DWG drawings were released. The Referrer complained that they had not been fully released.

21. Having regard to the whole evidence before it, the Committee reached the following findings of fact.

 

Findings of Fact

22. In reaching its decision the Committee carefully considered the submissions made, together with the evidence presented to it.

23. The Committee also has 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.

 

Particular (1): Found Proved.

24. The Committee placed reliance on the documentation before it, the authenticity of which was not disputed by the Registered Person or the The documentation disclosed that the Registered Person offered to provided services to the Referrer on 1 September 2020, as set out in the fee proposal of that date. The fee for those services was to be paid in instalments. On 4 August 2021, the Registered Person offered to provide further services relative to the original work, in particular to provide DWG format drawings which would contain CAD information. The DWG drawings were to be paid for in instalments, with £1,080 to be paid before planning approval was obtained and £720 after planning approval. The parties then conducted their affairs on the basis of those communications. Planning approval for the project was not proved before the Committee. Accordingly, on the evidence before the Committee there is no obligation on the part of the Referrer to pay the second instalment for the DWG drawings. Noting the various invoices issued by the Registered Person and the Referrer’s bank statement evidencing payment, the Committee is satisfied that it has been demonstrated on the balance of probabilities that the Referrer had by 10 January 2022 paid all sums then due under both contractual arrangements (the £720 balance of the payment for the DWG drawings may yet, in the event of planning consent, fall to be payable). On 7 January 2022, the Registered Person had completed “the final drawings and DWGs” but did not deliver the same to the Referrer, instead he sought settlement of his account before doing so and advised the Referrer accordingly and rendered his Invoice No. 6. There was no dispute in the evidence that drawings that were to be provided in terms of the agreements were not provided by the Registered Person to the Referrer before regulatory proceedings were commenced.

25. In reaching that view the Committee considered whether events in September 2021 resulted in a new or varied agreement between the parties; in particular, whether the Registered Person’s email of 4 September 2021, in which he stated “[we] would also require the remaining fees for providing DWGs giving that we will now be providing technical information” varied the arrangements reached following the letter of 1 September 2020 and the email of 4 August 2021. That email was responded to by the Referrer on 5 September 2021 but the request for a variation of payment arrangements was not agreed to, either expressly or implicitly. The Committee therefore determined that the correspondence on 4 and 5 September 2021 did not materially alter the earlier contractual arrangements.

26. The Referrer having paid the Registered Person’s invoices in so far as they were due and payable, the absence of payment to meet the claimed balance due in respect of the DWGs (£720) was not a justification for the Registered Person to fail provide the drawings and DWGs that he accepted he had not delivered. This allegation was therefore found proved.

 

Particular (2): Found Proved as regards a failure to act without undue delay and within an agreed timescale

27. Standard 2 of the Architects Code (the Code) provides that an architect should carry out their professional work without undue delay.

28. The Committee again accepted the documentation before it as providing credible and reliable evidence of the communications between the Referrer and the Registered Person. The Committee found proved on the balance of probabilities that when the Registered Person was asked to progress with the final stage of the project (stages 4 and 5) in August 2021 he advised that he would need 4 weeks from commencement to do so. The Referrer was invoiced for the first payment for this work on 13 September 2021 and paid that invoice on 16 September Whilst payment of the relevant invoice of itself might not indicate the commencement of the work, on 19 October 2021 the Registered Person sent a text to the Referrer advising that the “work will be done by Friday this week”. Friday of that week was 22 October 2021. That was an agreed timescale. It was not met.

29. On 18 November 2021, the Registered Person emailed the Referrer and advised “we’ve been pushing ahead with the design and just have a few final bits to We’re nearly there but this will likely creep again into next week.” That was a second agreed timescale. It also was not met.

30. On 16 December 2021, the Registered Person emailed the Referrer and advised “I’ve started populating the drawings to the link below and should be completed by the end of the week”. That was a third agreed timescale. It also was not met.

31. On 5 January 2022, the Registered Person emailed the Referrer and advised “we will get the drawings out to you by Thursday Evening” and on Thursday 6 January 2022 in a further email advised “[uploading] final drawings this evening that have all been checked”. That was a fourth agreed timescale. It also was not met.

32. The Committee therefore determined that there were multiple occasions of a failure to act within an agreed The absence of payment on any of those dates was not relevant as the issue here was the Registered Person’s completion of his services to justify a request for payment. Further, whilst the evidence disclosed that there had been discussions between the Registered Person and the Referrer regarding aspects of the design, including the stairs, a toilet and the swimming pool, those issues pre- dated the first offer of a completion date. The Committee drew the inference from the identification of delivery dates that these were dates that the Registered Person considered he could meet notwithstanding the discussions that have taken place regarding the design.

33. As to the allegation of failing to act without undue delay, the Committee determined that repeated identification of and failure to comply with implicitly achievable timescales demonstrated undue delay in the completion of the work and that proved that the Registered Person had also failed to act without undue delay.

 

Particular (3): Found Proved in respect of the periods of time:

 

i. 8 – 26 March 2021,

ii. 1 – 15 December 2021, and

iii. 10 January until in or about early April 2022. 

 

34. Standard 6.3 of the Code expects an architect to keep their client informed of the progress of the work undertaken on their behalf.

35. Once again, the Committee determined that the uncontested documentary evidence provided credible and reliable evidence as the actions of the Registered Person and the Referrer. The Committee found proved that on 8 March 2021 the Referrer asked the Registered Person for an indication as to when he could expect to have certain specified matters, including a 3D illustration of updated drawings, a list of questions and confirmation that updated drawings were ready for submission for approval. No response was made to that email until after 21 March 2021, when the Referrer, in a further email, sent a reminder. The Registered Person responded on 26 March 2021 with an apology and explanation that a member of staff had left and that he was “currently playing catch across all fronts” (sic). Whilst the passage of time between 8 and 26 March 2021 was not particularly long, the Committee determined that the context was relevant in the assessment of whether there had been a failure to respond. In the view of the Committee “failure” connotes an element of want in Where there was a specific issue affecting delivery performance across the Registered Person’s practice and thus the ability of the Registered person to deal with the substantive client query, as the email identifies, the Committee determined that it was incumbent upon the Registered Person to at least let the client know of the issue affecting his ability to respond. The Registered Person failed so to do until 26 March 2021.

36. The Committee also found proved that on 1 December 2021 the Referrer emailed the Registered Person: “please update me as to when the drawings will be ready”. That was responded to on 15 December 2021 when the Registered Person emailed back with “sincere apologises for disappearing”. Against the background that the Referrer had by then passed two dates identified for the completion of the work, to have not responded to the Referrer’s requests more promptly, even with a holding email, was a further failure in the duty in Standard 6.3 of the Code to keep the Registered Person’s client informed.

37. Finally, the Committee having noted that the Referrer had paid all that was then due by 10 January 2022, found that he was entitled to a timely explanation from the Registered Person for his failure to provide the work that had been done and paid No explanation came before a complaint with ARB was lodged. Only in discussions and correspondence in early 2022 did the Registered Person engage with the Referrer as to why he had not delivered the documentation. The Registered Person failed to respond to the Referrer’s specific chasing email of 12 January 2022. The Committee determined that the failure to keep the Referrer informed on the progress of the work at least to identify why it was not being made available, dated from 10 January 2022 when payment was made and the obligation to deliver the work arose.

 

Finding on UPC

38. The Committee proceeded to consider whether the Registered Person’s conduct amounted to UPC is defined by s. 14(1)(a) of the Architects Act 1997 as “conduct that falls short of the standard required of a registered person”.

39. The Committee had regard to the legal advice of the Chair that the issue of whether the proved conduct amounts to UPC is one for the Committee’s independent judgment. The deficient conduct must be serious.

40. The Committee also bore in mind that to reach a decision of UPC “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required (Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin), [2013] 1 WLR 1307). The PCC also reminded itself, drawing from R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin),of the relevance of drawing a distinction between a single act and multiple acts of concern, viz.

 

mere negligence does not constitute misconduct” … “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions and a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance.”

41. The Presenter submitted that UPC had been established in respect of each and all of the findings of fact. He submitted under reference to the Code, that Standards 4.6, 6.2 and 6.3 were engaged. The Referrer had paid the instalment for the DWGs in full and had satisfied his obligations. The Registered Person’s failure to meet his obligation then to deliver the documentation was a serious failure to meet Standard 4.6 of the Code. The Referrer had not received what he had paid for. He was disadvantaged as he was unable to progress his project. Further, the Registered Person had repeatedly not met timescales, despite being chased. The delays, individually and cumulatively, had resulted in a failure to keep the Referrer informed. They amounted to failures to meet Standards 6.2 and 6.3 of the Code. They were serious because they left the Referrer with unnecessary delay and uncertainty. The Registered Person’s failure to comply with the Standards identified in the Code also adversely affected the reputation of the profession. An architect is expected to adhere to the minimum standards set out in the Code. The failings were serious and amounted to UPC as they had the potential to substantially undermine confidence in the profession.

42. In response the Registered Person accepted that his conduct as found proved under particular (2) amounted to UPC, but not otherwise. As regards particular (1) he said that he did not believe that he was required to the deliver the documents that he had withheld. As regards particular (2), he accepted that in the light of the timescales set by himself he repeatedly failed to provide what he had agreed to provide. He said there had been complex amendments to the project, but accepted he had failed to explain to the client that the amendments would cause He said he was profoundly sorry. It was a matter of embarrassment for him. He recognised that the public’s confidence in architects might be adversely affected. He said he would endeavour to improve his systems and review the stop gap approach he had adopted. As to particular (3), he said he thought he had an agreement with the Referrer, however he accepted that he should have continued to communicate with the Referrer. He initially stated that he recognised that the project was about the Referrer and not himself; and that he should have put the client first. He said he could see that it could amount to UPC. He apologised for that. However, in response to questions from the Committee seeking clarity as to whether he did nor did not accept his actions as proved amounted to UPC, he said the Referrer had failed promptly to pay an earlier invoice and had thereby caused damage to his practice by withholding payment, so he felt justified in his actions.

43. The Committee determined each and all of the particulars of the charge that had been proved to be serious. The Code sets out standards of conduct that the public are entitled to expect from registered architects. Standard 4.6 provides that upon reasonable demand architects should promptly return to a client any papers, plans, or property to which they are legally By 10 January 2022, the Referrer had paid all that he was due to pay the Registered Person for work under the original contract and all he was due to pay at that time under the separate agreement for the provision of DWGs. The Registered Person’s failure to provide final drawings and the DWGs was a deliberate decision. Having regard to his submissions to the Committee on the issue of UPC, the Registered Person was clearly apprehensive that if the drawings and DWGs, including the technical information in the DWGs, were delivered without payment in full, his ability to recover the remaining £720 for the DWGs might be compromised. However, he had reached the agreement with the Referrer that brought about that state of affairs. The communications between the Registered Person and the Referrer gave no indication that the instalment payment arrangement settled in the email of 4 August 2021 had been varied. The Committee was also concerned to note the Registered Person’s final position in respect of particular (3): that the failure to deliver was in consequence of a delay in payment by the Referrer of an earlier invoice. In the view of the Committee, the Registered Person’s failure to provide the documentation represents a serious failure to comply with Standard 4.6 of the Code. Furthermore, for the reasons he gave to the Committee in his submissions to it, it touches upon his integrity in adherence to legal obligations entered into by him and thus Standard 1.1 of the Code (“You are expected at all times to act with honesty and integrity …”). Standard 1.1 expressly provides “[this] standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.”

44. As to the progress of the work, the Committee recalls Standard 6.2 of the Code (see above). The Registered Person assured the Referrer that matters were in hand and were deliverable by various dates (22 October, 26 November, 17 December 2021, and 6 January 2022), only for those dates to be repeatedly missed. The technical information in the drawings and DWGs was awaited by the Referrer. The Registered Person was aware since at least 10 July 2021 of the Referrer’s need for the drawings and DWGs to progress matters in Lagos. The Registered Person was thus aware that missed deadlines and delay was likely to cause difficulties for the Whilst the Registered Person in his evidence stated that he had been ill during this period, including suffering intermittently from the effects of a Covid-19 infection during the summer, and that he had been managing unspecified family issues, the Committee noted that the various dates identified by the Registered Person were offered by him in the knowledge of these issues and the effect they had on his practice. They were not dates that had been identified in contractual arrangements some months previously before any work had commenced, for which compliance was frustrated by unforeseen supervening events. In the circumstances the Committee concluded that the repeated failure to meet agreed timescales represented a serious failure on the part of the Registered Person in his meeting of Standard 6.2 of the Code. When viewed collectively the period of time taken to complete the drawings and DWGs was properly to be described as undue delay failing to meet the expectation of Standard 6.2, which was also serious when viewed against the background of the Registered Person’s knowledge as to the importance of the documentation to the Referrer to allow him to progress matters in Lagos.

45. As to the Registered Person’s failure to keep the Referrer informed of the progress of work, the Committee noted that it had found repeated incidents of such failure. The correspondence demonstrated that the Referrer had informed the Registered Person of his need for the documentation and that the Referrer had to chase the Registered Person on various occasions for progress. On the occasions identified, an unreasonable period of time was allowed to elapse before the Registered Person responded. The Registered Person thus failed to meet the expectations of Standard of the Code on multiple occasions. Whilst one such failure might be excusable; the absence of a response after 10 January 2022, particularly in the light of the email of 12 January 2022, was of itself serious and would, in the view of the Committee, be regarded as a matter worthy of harsh criticism and deplorable by a reasonable and informed member of the public. Further, when then taken with the other proven delays there was also demonstrated, in the view of the Committee a course of conduct and underlying attitude to the conscientious exercise of professional work which was deficient of the standard the public is entitled to expect of architects. The Registered Person’s repeated failure is also serious.

46. The Committee’s judgment was therefore that whether looked at individually or collectively the Registered Person’s proven conduct fell seriously below the standard expected of a registered architect. It had an adverse effect on the Referrer and undermined the reputation of the profession. In the view of the Committee, the profession would regard each and all of the matters proved as justifying harsh criticism. Membership of the profession carries many advantages, but also consequent responsibilities. The Registered Person’s conduct in respect of each and all of the particulars of the allegation found proved amounted to a serious failure to meet the standards expected of a member of the profession. The Committee therefore concluded that the Registered Person’s conduct as found proved under Particulars (1), (2) and (3) individually and collectively amounted to UPC.

 

 

Sanction

 

47. Having found the Registered Person guilty of UPC, the Committee turned to determine whether a disciplinary order should be imposed and, if so, what that order should be.

48. No further evidence was led, but submissions were made by the Presenter and the Registered Person.

49. Under reference to the Sanctions Guidance issued by ARB, the Presenter submitted that the Committee should consider as aggravating factors the adverse effect the Registered Person’s conduct had had on the Referrer. He submitted that the Registered Person’s conduct demonstrated a pattern of performance towards his client; and an entrenched failure in keeping the Referrer abreast of issues and to deal with his concerns. The Registered Person, although now accepting UPC in respect of particular (2), and in doing so having made an apology and expressed regret, had otherwise “doubled-down” and blamed the Referrer on the other aspects of the allegation, rather than identify reformed procedures. He submitted that the Registered Person remains entrenched on particulars (1) and (3), where he had a tendency to point blame towards the Referrer, rather than his own failings as found proved. Under reference to paragraph 5.8 of the Sanctions Guidance, he submitted that the Committee should focus on whether there is real evidence that the Registered Person had been able to look back at his conduct with a self-critical eye, acknowledged fault, expressed contrition and/or apologised. He submitted that there was an absence of insight and remorse on the part of the Registered Person. There were no mitigating factors. The appropriate disposal was, however, a matter for the Committee’s judgement, but this was not an exceptional case where no sanction would be appropriate.

50. The Registered Person submitted that any sanction should be proportionate. He accepted that there had been a “major misstep” on his The project was not “run of the mill.” He had made a poor choice taking it on in the first place. He was willing to offer up the conclusion that there had been poor judgement on his part. He had not benefited in any way from the “fall-out” of this project. He said he had reached out to the Referrer following the complaint to the ARB and offered to provide him with the drawings in return for payment of what he felt he was owed. He had since provided the Referrer with all of the drawings and legal proceedings between them had been brought to a close. He had wanted to maintain an air of professionalism. He was sorry. He deeply regretted his actions. As to mitigation, he submitted that he was of good character. He had not been in “this position” before and was “not planning to be back here ever again.” He submitted that he had been open and given a frank understanding of his recollection to ARB and the Committee. He did not believe he was a risk to the public. This was an isolated event in seven years of practice.

51. In reaching its decision the Committee had regard to the Sanctions Guidance and recalled that the primary purpose of any sanction is to protect the public, to uphold public confidence in the profession and to declare and uphold proper standards of conduct and competence. Sanctions are not imposed to punish architects, but they may have a punitive effect. Whether to impose a disciplinary order, and if so what order to impose, was a matter for the Committee’s judgement.

52. The Committee considered first such aggravating and mitigating facts as were relevant to its determination. The Committee took the view that the Registered Person’s actions were deliberate. Whilst it recognised that the conduct of concern related to only one client, it was, in respect of the provision of, and failure to meet, timescales, repeated. The Registered Person had however demonstrated some insight and remorse, but that was limited to the issues of unmet deadlines, undue delay, and only certain aspects of his failure to keep the Referrer informed. The Registered Person refused to acknowledge his shortcomings in respect of his failure to provide documents to which his client was entitled; and in respect of his failure to keep the Referrer informed of the progress of the work after he made delivery of documentation conditional on payment of a sum that he was not at that point entitled to. The Committee did recognise that the Registered Person had engaged with the regulatory process. However, whilst he asserted that he would have to review his procedures regarding payment dates and communications, no evidence was produced as to any changes that the Registered Person had enacted following the No third-party evidence was produced as to good character. No evidence was produced relative to prior disciplinary history, either aggravating or mitigating.

53. The Committee considered first whether it would be appropriate to impose no disciplinary order. It determined that the level of seriousness of the Registered Person’s conduct was not so low as to render it unfair or disproportionate to impose a sanction. The Registered Person’s conduct was deliberate and required to be sanctioned.

54. The Committee then considered whether a reprimand would reflect the seriousness of its Having regard to the Sanctions Guidance, the PCC did not consider the Registered Person’s conduct to be at the lower end of the scale of seriousness. In the view of the Committee the public would be shocked and concerned to know that an architect might refuse delivery of work when all due contractual payments had been made; all the more so were they to be advised that an architect had then failed to respond and keep a client informed of the progress of the work, including responding to an enquiry as to why delivery was not taking place. On these matters the Registered Person’s conduct had been deliberate and he showed little insight. His ongoing belief, expressed in his submissions to the Committee on the issue of UPC that he was entitled to hold back delivery until he was paid a sum of money that he was not at the time entitled to was a matter of significant concern for the Committee. The Committee determined that Registered Person’s limited insight on that matter demonstrated that he presented a risk of repetition and thus a risk to the public. Furthermore, no evidence was presented to the Committee of any steps taken by the Registered Person to vary the procedures in his practice to avoid a repetition of the circumstances considered by the Committee. The Committee therefore determined that a reprimand would not adequately mark the conduct of the Registered Person as being unacceptable nor provide sufficient deterrence against the risk of repetition.

55. The Committee next considered the imposition of a penalty order. The Committee recognised that the Registered Person had demonstrated some insight into the allegation, particularly in relation to the issues of failure to comply with agreed timescales, undue delay, and some aspects of his failure to keep his client informed of progress. It also bore in mind that the Registered Person’s conduct, although at time repeated, related to only one client. Whilst the Registered Person did demonstrate a regrettable entrenchment of view as regards the delivery of documents and his need to engage with his client on that matter, he did not demonstrate broad entrenched integrity issues. Although a reprimand would not be sufficient to mark the seriousness of the Registered Person’s conduct, his limited insight suggested that a penalty order at the upper end of the scale of such an order was a potentially appropriate proportionate order.

56. As a cross-check the Committee considered whether a suspension order would be appropriate. The Committee had regard to the insight shown by the Registered Person on the issue of progression of work, and also to his limited insight on the issue of communication with clients. The Committee determined that whilst the Registered Person continued to fail to appreciate the significance of his actions in not delivering the completed drawings and DWGs, looked at in the round the Registered Person had demonstrated an ability to recognise his errors and to act to correct No adverse prior disciplinary history was drawn to the attention of the Committee. The Committee noted that the Registered Person had participated in the regulatory proceedings. In the circumstances the Committee determined that a suspension order would be a disproportionate response.

57. The Committee therefore determined that a penalty order was indeed the proportionate response. In determining the amount of that penalty, the Committee remained concerned as to the Registered Person’s lack of insight on the issue of the provision of documents and communication with clients and the consequential risk of repetition. To minimise that risk and to mark for the Registered Person and to the public the unacceptable nature of the Registered Person’s conduct the Committee determined that only a penalty at the top of the limited range available to it, marking the Committee’s concern as to that lack of insight, would be effective to protect the public, uphold public confidence in the profession, and uphold proper standards ofconduct and competence. The Committee determined to impose a penalty order of £2,500.

58. Payment of the Penally Order is to be made no later than 28 days after the date of this decision. Failure to make payment of the penalty order within the time prescribed may result in the Committee making a suspension order or an erasure order.