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Mr Mario Minchella
ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
MARIO MINCHELLA (050282K)
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Held online on:
27 and 30 September 2024
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Present:
Martin Winter (Legally Qualified Chair)
Deborah Kirk (PCC Architect Member)
Neil Calvert (PCC Lay Member)
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The Architects Registration Board (“the ARB”) was represented by Mr Ryan Ross (“the Presenter”) instructed by Kingsley Napley LLP.
Mr Mario Minchella (“the Registered Person”) did attend the hearing and was not represented.
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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 act without undue delay, contrary to Standard 6.2 of the Architects Code (“the Code”) in that he: a) Failed to submit the planning application in a timely manner; and b) Failed to keep the Referrer and/or agent updated on the progress and/or status of the planning application and that by doing so, he acted in breach of Standard 6.2 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”). The sanction imposed is a Reprimand. |
Allegation
1. The Registered Person faces an allegation of unacceptable professional conduct (“UPC”) in that:
1. The Registered Person failed to act without undue delay, contrary to Standard 6.2 of the Architects Code (“the Code”) in that he:
a) Failed to submit the planning application in a timely manner; and/or
b) Failed to keep the Referrer and/or agent updated on the progress and/or status of the planning application
Background
2. The Registered Person is a registered architect with his own practice, Mario Minchella Architects. In 2015, the Referrer purchased at auction a property near Taunton (“the Property”). The Property required extensive work. The Referrer dealt with preliminary work which was completed in December 2017. He appointed a different architect to prepare a planning application to convert the hotel into a residential dwelling; that application received permission in June 2016. Due to a number of factors, the Referrer decided to ‘park’ the project for a few years.
3. Around June 2019, the Referrer met Mr G.K. (“Mr K”), a Business Finance Consultant. The Referrer states that Mr K told him that the Property had potential to be converted into residential apartments for sale and that he knew someone who could assist. In due course Mr K introduced the Referrer to the Registered Person. The Referrer states that Mr K had no further involvement in the project after an agreement had been reached on plans prepared by the Registered Person in October 2020. The ARB has sought to obtain witness evidence from Mr K but he has declined to assist. The Registered Person has asserted that Mr K played a more significant role than simply effecting the introduction.
4. The Referrer had previously obtained some plans for the Property and these were provided to the Registered Person in June 2019. No site visit was carried out, but the Registered Person prepared fresh plans that proposed converting the Property into seven flats. The new plans were completed and provided to the Referrer on 4 July 2019. He agreed the plans in principle but states that his attention was focussed on his other business activities.
5. In September 2020, the Registered Person sent proposed floor plans to Mr K who then forwarded these to the Referrer. The Referrer advises he had not had any communication from the Registered Person between 4 July 2019 and 30 September 2020. Whilst they had agreed the scheme in principle, he had concluded they would proceed once his other business issues had been addressed.
6. On 2 October 2020 the Registered Person issued an invoice to the Referrer for the planning stage fees. In an email attaching the invoice he stated, “We will submit the application upon receipt of the payment and, while the application is being determined, we will undertake a site visit”. An updated invoice was sent on 5 October 2020 and the Referrer paid the invoice the same day. He expected the Registered Person to submit the planning application at that time.
7. The Referrer advises that a site visit was not arranged, but he did not follow this up with the Registered Person. He says that due to the Covid pandemic he did not want to pester the Registered Person so he left a reasonable amount of time before he chased the Registered Person about the progress of the application. He assumed the application was being processed in accordance with the assurance he had received from the Registered Person on 3 October 2020.
8. Around May 2021, the Referrer was working with another architect on another project. He says that the other architect told him that there was nothing on the planning portal suggesting that the planning application for the Property had progressed at all; the Referrer says he was shocked by this.
9. The Referrer requested an update from the Registered Person who responded stating, “Keep an eye out for an email from the Planning Portal requesting the fee payment within the next hour or two. This will activate the application. I’ll email the drawings when I get in later today”. The Referrer says that it was at this point that he realised that the planning application had not been submitted in October 2020 as he had expected. He told the Registered Person “If you haven’t submitted it already then stop”.
10. The Referrer asked the Registered Person why the application had not been submitted in October 2020. The Registered Person advised, “…We prepared the application electronically via the Planning Portal which should have sent you an email to pay the fee to the LA. For some reason it has been stuck in Draft Format all this time and we thought you had paid the fee to them. I accept responsibility for not chasing it up but I thought the lack of news was due to Covid at their end. I should have chased it and I apologise profusely. To compensate, I can offer you a reduction in our fee as a token for respect to you”
11. On 15 May 2021, the Referrer terminated the agreement with the Registered Person and asked for a refund. In response the Registered Person stated that he had completed the drawings in July 2019 and waited more than a year before payment was received. The Referrer notes that no invoice was raised until 5 October 2020, which was paid immediately.
12. In August 2022 the Referrer made a formal complaint to ARB.
13. The Registered Person stated, in response to the ARB investigation, that the situation arose because of “poor and convoluted” lines of communication between himself and the Referrer’s agent, Mr K, under difficult circumstances. He accepted that he should have done more to monitor the project but that events occurred during the height of the Covid-19 restrictions which created unprecedented, extraordinary and inefficient working conditions.
Findings of Fact
14. Upon the allegations being read, the Registered Person was asked whether he wished to make admissions. The Registered Person confirmed that he admitted the facts as alleged. This was consistent with the indications contained in the Acknowledgement of Notice of Hearing form submitted by the Registered Person in advance of the hearing.
15. In accordance with Rule 26(d) the Chair announced these facts proved by admission.
Unacceptable Professional Conduct
16. Having found the particulars of the allegation set out above proved, the Committee went on to consider whether the Registered Person’s conduct amounted to Unacceptable Professional Conduct (UPC).
17. The Committee found that the Registered Person’s actions fell short of Standard 6.2 of the Code.
6.2 You should carry out your professional work without undue delay and, so far as is reasonably practicable, in accordance with any timescale and cost limits agreed with your client.
18. The Committee heard evidence from the Referrer and the Registered Person. The Committee found that both gave credible and balanced evidence. The Referrer described the emotional and financial impact caused by the delay in getting the planning application submitted. This included the direct costs of the fees charged by the Registered Person, but also the indirect costs associated with the litigation that flowed from the delay. He also described the unforeseen costs to the project that had impacted the viability of the project. The Referrer conceded that the Registered Person was not entirely responsible for all of the factors that had led to the project stalling.
19. The Registered Person explained that the changes in working practices during the Covid 19 lockdown periods had been the primary cause of the delay in submitting the planning application. He described how his ability to supervise the work of his colleagues had been diminished when staff began working remotely from home. He was adamant that only the Referrer’s project had been affected in this way. He accepted that he was responsible for the wasted fees he had charged and received from the Referrer and the cost of the subsequent legal proceedings. He did not accept that he caused any other losses and suggested that the economic effects of Covid and other factors were mostly to blame for any change to the viability of the project.
20. The Committee heard submissions from the Presenter and the Registered Person and accepted the advice of the Legally Qualified Chair. The Committee reminded itself that a finding of UPC is a matter for its own independent judgement having regard to any facts found proved. There is no burden or standard of proof.
21. The Committee noted that UPC is defined in section 14(1)(a) of the Architects Act 1997 as conduct which falls short of the standard required of an Architect. The Committee further noted that misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as: “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.
22. In the Registered Person’s case the standards required to be followed by the Registered Person are contained in The Architects Code: Standards of Conduct and Practice 2017 (the Code). The Committee recognised that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be considered should it be necessary to examine the conduct or competence of an architect.
23. The Committee had regard to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and noted that for a finding of UPC to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” is required. The Committee also recognised that any failing must be serious as was confirmed in the case of Vranicki v Architects Registration Board [2007] EWHC 506 (Admin).
24. The Committee also reminded itself of the relevance of drawing a distinction between a single act and multiple acts of concern, and that “mere negligence does not constitute misconduct” and “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.” cited in R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin).
25. The Committee considered that the crucial issue in this case is whether the failing on the part of the Registered Person was sufficiently serious as to amount to unacceptable professional conduct.
26. The Committee agreed with the submission of the ARB that the delay would have been greater had the Referrer not initiated contact with the Registered Person in May 2021. Despite the Registered Person giving reasons for the delay at the time, the Committee concluded that the planning application had simply been forgotten about by the Registered Person from October 2020.
27. The Registered Person suggested that he was waiting for additional information from the Referrer’s agent, Mr K, before finalising the planning application. Communications in this regard were, he says, only by telephone and were not recorded in any way. The Registered Person confirmed that the planning application was ready to be submitted as early as November 2020 with or without this additional information. The Committee concluded that the Referrer’s project was simply overlooked from October 2020 until May 2021.
28. The Committee noted that there was no intervening correspondence from the Referrer or his agent between October 2020 and May 2021 that would have identified the error at an earlier stage. Once he became aware of the error the Registered Person acted swifty to seek to rectify the issue. However, it would have been natural for the Referrer to assume the planning application would be processed around October 2020 after payment of the Registered Person’s invoice had been made as that was what the Registered Person had agreed to do.
29. The Committee accepted that this was an isolated episode of negligence on behalf of the Registered Person, but it was one that had a significant effect on the Referrer’s project in delaying any progress for seven months. Aside from the direct financial impact, the Committee accepted the submission of the Presenter that the delay created the potential for further indirect costs through the loss of opportunity.
30. The Committee considered that the context of Covid restrictions was a significant factor in this project. The Registered Person described how there had been unprecedented changes to working arrangements whereby the usual collegiate environment of a busy architect’s office was replaced by remote working from home. This created obstacles to proper supervision of projects and colleagues. The Registered Person accepts, in hindsight, that he had insufficient working practices in place to maintain proper supervision of his workload during this time.
31. The Committee also considered the significance of Mr K, the Referrer’s agent. The Registered Person described there being “convoluted lines of communication” between himself, Mr K and the Referrer. The Committee accepted that Mr K was not simply the person who effected the initial introduction of the Registered Person to the Referrer and it is clear from email correspondence that Mr K was a point of liaison between the two throughout the early stages of the project. However, the Committee concluded that, if the lines of communication were convoluted, it was incumbent upon the Registered Person to simplify and resolve any confusion this created.
32. The Referrer’s project was overlooked and forgotten about by the Registered Person for seven months until raised by Referrer in May 2021. This delay is a serious falling short of the expected standards of an architect. The Covid restrictions on working practices required professionals to adapt to cope with the changed working environment. The Registered Person’s lack of proper supervision caused the delays in this project and amount to a serious failing. For these reasons the Committee finds unacceptable professional conduct proved.
Sanction
33. Having found the Registered Person’s actions amounted to UPC, the Committee then went on to consider what, if any, sanction to impose in this case.
34. The Committee heard submissions from the Presenter and the Registered Person and received legal advice from the Chair, which it accepted. The Committee took careful note of the ARB Sanctions Guidance published in 2022.
35. The Committee had regard to the public interest in disciplinary proceedings which includes the need to protect the public, maintain confidence in the profession and ARB and to declare and uphold proper standards of conduct, behaviour and competence. The Committee was mindful that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect and that any sanction must balance the rights of the Registered Person against the need to uphold proper standards and protect the public.
36. The Committee first assessed the seriousness of the finding of UPC with reference to the facts found proved during the hearing and by considering the competing aggravating and mitigating factors in accordance with the guidance provided by the case of Fuglers & Ors v Solicitors Regulation Authority [2014] EWHC 179
37. The Committee considered the following mitigating factors: The Registered Person;
i. has a 40-year unblemished career
ii. demonstrated insight and remorse
iii. acted to remedy the situation as soon as he became aware of his error
iv. was struggling to cope with workplace changes due to Covid 19 lockdown restrictions
v. subsequently adjusted his working practices to minimise any repetition and is unlikely to repeat the misconduct if similar circumstances were to reoccur
vi. evidenced personal difficulties in his domestic life that had some impact on his ability to maintain professional standards at the relevant time
vii. made early and full admissions
viii. positively engaged in these proceedings
38. The Committee considered the following aggravating factors:
i. There was a risk of serious consequences to the Referrer’s project
39. The Committee was satisfied that this case is at a lower level of seriousness. The conduct was limited to one project and was a single act of unintended, negligent conduct in the unusual circumstances of the Covid 19 lockdown restrictions.
40. The Committee was able to attach significant weight to the mitigating factors and was satisfied that the Registered Person has been able to look back at his conduct with a self-critical eye and that he has acknowledged fault, expressed contrition and apologised. The Committee was satisfied that the Registered Person has understood his failings, the underlying reasons for them, and the impact his actions had on the Referrer.
41. When considering which sanction was most appropriate and proportionate the Committee adopted the approach set out in the case of Rashid v General Medical Council (reported at 2006 EWHC 886 Admin) to consider the least penalty first and to ask itself whether that is sufficient and, if not, then go on to the next, and so on.
42. The Committee first considered whether to take no action other than to mark the finding of UPC. However, to do so would require exceptional circumstances to be present. The Committee noted the context of the unprecedented restrictions arising from the Covid 19 pandemic but concluded that these were not so significant to justify taking no action. The situation was not unique to the Registered Person and all professionals needed to manage their business competently, even in such unusual circumstances.
43. The Committee considered the next available sanction, Reprimand. This sanction is appropriate for cases at the lower end of seriousness. The following factors were identified as being present.
i. There is no evidence that the architect poses a risk to the public;
ii. There is evidence of genuine insight and remorse;
iii. The architect has taken corrective steps;
iv. There is evidence of previous good disciplinary history;
v. The conduct represents an isolated incident;
vi. The architect’s actions were not deliberate.
44. All these factors are present in the non-exhaustive list of factors at paragraph 6.2.2 of the ARB Sanction Guidance as being consistent with the imposition of a Reprimand. The Committee considered that these factors carried significant weight. The Registered Person gave evidence and his assertions regarding insight and remorse were, in the view of the Committee, genuine and heartfelt.
45. The full financial impact of the misconduct is not a matter upon which the Committee was required to reach a precise finding. The emotional impact described by the Referrer and the potential risk of indirect costs were taken into consideration and found to be significant. The Committee noted that the Referrer has commenced litigation to recover his losses.
46. The Committee considered that a Reprimand was the appropriate sanction in all the circumstances. The Committee checked this decision by assessing the factors that would militate towards the next available sanction, a Penalty Order. The Committee was satisfied that none of the factors that would suggest a Penalty Order was the appropriate sanction applied in this case. There was little, if any, financial benefit to the Registered Person from his misconduct. The delay that he created did not provide the Registered Person with any financial advantage and he has asserted that he will honour his offer to reimburse the Referrer all the fees that he charged for the work that was done.
47. The Committee therefore imposes a Reprimand in this case.
