Mr Neil Eldem

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

NEIL ELDEM (085492A)

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Held via video conference on:

23 – 25 April 2025

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Present:
Martin Winter (Legally Qualified Chair)
David Mulligan (PCC Architect Member)
Peter Baker (PCC Lay Member)

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In this case, the Architects Registration Board (“ARB”) was represented by Mr Leonard Wigg (“the Case Presenter”) instructed by Kingsley Napley LLP.

Mr Neil Eldem (“the Registered Person”) attended the hearing and was not legally represented.

 

Preliminary issue(s)

Redactions on Registered Person’s Bundle

1. The Case Presenter referred the Committee to the redactions within the Registered Person’s bundle of evidence. These redactions had been put in place by the ARB for the benefit of the Registered Person and because the ARB could not agree to the admissibility of the information contained therein.

2. The Registered Person confirmed that the redactions removed references to a Consent Order procedure that had been entered into prior to the hearing. Evidently, the procedure had not resulted in an agreed Consent Order.

3. The Chair explained that Rule 45 of the current PCC Rules stipulated that information relating to a Consent Order remained confidential “… unless the Registered Person chooses to bring this information…” to the attention of the Committee. Therefore, if the Registered Person wished to rely upon this information, which he did, he could do so and there was no power to prevent this.

Evidence related to the Consent Order Procedure

4. The redactions were removed and the relevant documents provided to all parties. Having read the unredacted documents it became clear that the documentation provided an incomplete picture without the draft Consent Order and the Consent Order Panel decision. The Registered Person was invited to consider whether he would want the Committee to see all this documentation in accordance with Rule 45 and he confirmed that he did. Thereafter the decision of the Consent Order Panel and the draft Consent Order were also provided to all parties.

5. In addition to these documents, the Case Presenter suggested that a letter written by the solicitors instructed by the ARB, and previously provided to the Consent Order Panel, ought also to be made available. The Registered Person agreed and a letter dated 1 April 2025 from Kingsley Napley solicitors to the Consent Order Panel was also provided.

6. In summary, these documents demonstrated that the ARB had sought to enter into a Consent Order agreement with the Registered Person on the same facts as were before the PCC except that the allegation of dishonesty at particular 3(b) had been removed. The suggested sanction was a Penalty Order in the sum of £2,500. The Consent Order Panel had rejected the draft Consent Order and, in accordance with PCC Rules 38 – 45, the Consent Order procedure was terminated and the matter proceeded to this PCC hearing.

 

ARB indication to “offer no evidence”

7. Before opening the case on behalf of the ARB, the Case Presenter indicated that he had instructions that ARB were “not minded” to proceed with the allegation of dishonesty (particular 3(b)) in effect reflecting the position ARB presented to the Consent Order Panel. The Chair pointed out that the PCC Rules do not permit such a process and that the proper course would have been for the ARB to refer the matter back to the Investigation Panel to review the decision to allege dishonesty.

8. The Chair advised the Committee that it would be an improper use of the PCC Rules for the Committee to amend the particulars of the charge to remove the allegation of dishonesty given the Investigation Panel had approved this particular and the Consent Order Panel had rejected the draft Consent Order that had removed the allegation of dishonesty. If the evidence of dishonesty was weak, then that would be a matter that could properly be addressed at the close of the ARB case as part of a Galbraith submission or by the Committee during decision-making on the findings of fact at stage 1.

Additional Documentary Evidence from the Registered Person

9. During his oral evidence the Registered Person referred to the content of the letters of engagement that he sent his clients during the period when he accepted that he did not have PII cover. He also referred to the standard terms and conditions he attached to each of those letters. Although it appeared that he had been requested to provide these by the ARB during the investigation, those requests were not followed up. In any event, the Registered Person stated that he could provide these documents with ease and all parties agreed to the admission of this new evidence. The Committee asked the Registered Person to produce these documents , which he did (see paragraph 17).

 

Allegation

10. The Registered Person faces an allegation that he is guilty of Unacceptable Professional Conduct (“UPC”). The Architects Registration Board (“the ARB”) relies upon the following particulars in support of the allegation:

(1) The Registered Person did not maintain adequate and appropriate Professional Indemnity Insurance cover (PII), contrary to Standard 8.1 of the Architects Code;

(2) The Registered Person did not inform clients that he did not hold adequate and appropriate PII cover;

(3) The Registered Person’s actions at 1 and/or 2:
a) Lacked integrity; and/or
b) Were dishonest.

11. In doing so, it is alleged that the Registered Person acted in breach of Standards 8.1 and 1.1 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code).

Background

12. On 3 August 2023 the Registered Person sent an email to the ARB providing information about a County Court judgment that had been made against him a few weeks earlier. He made this voluntary disclosure in order to be fully compliant with Standard 9.2 of the Code as he knew that he would not be able to settle the judgment debt.

13. On 14 August 2023 the ARB requested further information from the Registered Person regarding the judgment and, as an ancillary matter, also requested evidence of the Registered Person’s PII cover.

14. The Registered Person requested a telephone call with the ARB investigator and on 20 August 2023 a conversation took place during which the Registered Person disclosed that he did not have PII cover and had not had cover since 2019. He explained that the cost of PII had become prohibitively expensive and he had undertaken very few architectural projects since that time.

15. The Registered Person continued to correspond with the investigator cooperating as fully as could be expected. Eventually he was able not only to renew his PII but was also able to obtain cover that provided a retroactive date covering the entirety of the period during which he had not had cover. He also provided information confirming the 16 projects that he had worked on while not covered by PII.

16. The Registered Person provided five statements, each with an attestation of truth, making admissions that he did not have the appropriate insurance cover during the relevant period but denying that he had intended to mislead, or had misled, any of his clients. He stated that should any of his clients have asked what insurance cover was in place he would have told them the truth but none of his clients asked that question.

17. During the hearing, at the request of the Committee, the Registered Person was also able to provide copies of his standard letters of engagement and the terms and conditions that he had sent to his clients during the period that he did not have PII cover. The Committee allowed the admission of this additional evidence in accordance with Rule 20 and with the agreement of the Case Presenter.

Submission of no case to answer

18. Although the PCC Rules do not explicitly provide for a submission of no case to answer, it is widely accepted in regulatory law that no useful purpose is served in continuing proceedings if, based upon the case which has been put before the Committee, there is no real prospect of proving the facts alleged. Given the submissions made by the Case Presenter that the ARB was minded not to proceed with the allegation of dishonesty, and in light of the comments made by the Chair at that time (see paragraphs 7-8 above), the Chair invited the parties to make submissions as to whether the evidence relied upon by the ARB was such that there was no case to answer.

19. The Case Presenter referred the Committee to the admissions made by the Registered Person during the investigation that he agreed he had told his clients that he was bound by the Code and he accepted that the Code obliged him to have appropriate PII. The reasonable inference that his clients would draw was that appropriate PII was in place and this must have been the intention of the Registered Person. The Registered Person knew that he did not hold PII at the time that he was implying to his clients that he did.

20. The Registered Person asserted that he had not intended to cheat or deceive his clients at any time.

21. The Chair provided the Committee with appropriate advice as to the standard to be met by the ARB at the close of their case. The Committee was referred to the decision in the case of R v Galbraith (1981) 73 Cr App R 124. The Committee was advised that the matter under consideration falls into the category of cases where there is some evidence supporting dishonesty, but the Committee must consider whether it is so inherently weak or vague, or whether it is inconsistent with other evidence, such that the Committee could not conclude that the Registered Person could be found guilty. The question for the Committee to ask itself is “is there any evidence upon which a properly directed Committee could find the alleged facts proved?”

22. The Committee was satisfied that the admissions made by the Registered Person that he knew he did not have PII cover at the same time he was asserting to his clients that he was subject to the Code (and therefore obliged to hold PII cover) was sufficient for the Committee to find there was a case to answer and to proceed to hear the defence case and receive oral evidence from the Registered Person and any other supporting material.

Findings of Fact

23. The PCC Rules make it clear that the burden of proof at the fact-finding stage is on the ARB. So, it is for the ARB to prove the factual particulars set out in the allegation. It is not for the Registered Person to disprove them.

24. The ARB must prove the charges on the balance of probabilities, another way of putting that is, is it more likely than not that the allegations occurred as alleged.

25. The Committee will take into account the established case law that, although the standard of proof always remains the same, namely on the balance of probabilities, that the more serious the charge then it is inherently less likely to have been committed so the more cogent is the evidence needed to prove it.

26. In this case, on the allegation being read, the Registered Person made formal admissions to particulars 1, 2 and 3(a) and these are found proved in accordance with Rule 25(d).

27. The Registered Person denied particular 3(b) that he acted dishonestly in respect of the matters contained in particulars 1 and/or 2. The Committee must decide whether the conduct set out in particulars 1 and 2 lacks integrity, as admitted by the Registered Person, or crosses the line into the more serious allegation that the conduct was dishonest.

28. The test for dishonesty is set out in the case of Ivey v Genting Casinos (2017) UKSC 67. It is a two-part test. First, the Committee must determine, subjectively, what was the genuinely held state of mind of the Registered Person as to the facts and, secondly, whether this would be considered dishonest by the objective standards of ordinary decent people.

29. When considering conduct that lacks integrity, the Committee will apply the judgment in the Court of Appeal case Wingate and Evans v Solicitors Regulation Authority which was heard together with the case of SRA v Malins reported at 2018 EWCA 366.

30. Integrity is a broader concept than honesty, hence it is less easy to define in professional codes of conduct. The term integrity is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members.

31. The underlying rationale is that the professions have a privileged and trusted role in society and in return they are required to live up to their own professional standards. Integrity connotes adherence to the ethical standards of one’s own profession.

32. A professional disciplinary tribunal has specialist knowledge of the profession to which the Registered Person belongs and of the ethical standards of that profession. Accordingly, such a body is well placed to identify lack of integrity.

33. The Committee first assessed the Registered Person’s state of knowledge or belief as to the facts as at the relevant period. The Committee was satisfied that the Registered Person knew he should have PII to be compliant with the Code and the terms and conditions agreed with his clients. The evidence of the Registered Person was at times inconsistent. Initially he had indicated that he had forgotten that he did not have PII but in course of his evidence he clarified that he had made a conscious decision not to renew his PII policy when the premium increased dramatically at the end of 2019.

34. Furthermore, in response to questions posed by the Committee, the Registered Person confirmed that he knew he was doing wrong in not having PII and that every time the issue of PII occurred to him, he knew that his failure to have adequate insurance “would catch up” with him and “would cause trouble” for him. He stated that he was very aware of this shortcoming and that he had not been forgetful.

35. The Committee was also satisfied that the Registered Person’s state of knowledge as to the facts included that he had sent letters to his clients during the period when he did not have PII within which he confirmed that he was subject to the ARB code and that the terms of his engagement included the standard terms and conditions that he had obtained from RIBA.

36. It was also clear to the Committee that the Registered Person’s knowledge as to the facts included a good working knowledge of the ARB code. He confirmed this several times in evidence.

37. The Committee then went on to apply the second stage of the test as set out in the case of Ivey and asked itself whether an ordinary decent person would consider the conduct as alleged in particulars 1 and 2, given the Registered Person’s knowledge or belief as to the facts, would be considered honest or dishonest.

38. The Committee was not convinced that the conduct set out in particular 1 would be capable of being considered dishonest in and of itself. It is clearly wrong not to have adequate PII, and is a falling short of the standards expected, but the Committee was not satisfied that it could amount to a dishonest act in the absence of some other misrepresentation.

39. The Committee next considered the conduct as set out and admitted by the Registered Person at particular 2. The Committee noted the evidence produced by the Registered Person that comprised the letters and attachments sent to each of his clients during the period that he did not have PII cover. The letters explicitly stated that the Registered Person is subject to the Architects Code: standards of conduct and practise as issued by the ARB. The Code includes the requirements at Standard 8.1 to have adequate and appropriate professional indemnity insurance and at Standard 4.4 to provide a written agreement to clients which adequately covers, amongst other matters, a statement that “you have adequate and appropriate insurance cover as specified by ARB”.

40. The letters also refer to the standard terms and conditions that the Registered Person stated were attached to each letter of engagement sent to his clients. Clause 7.4 of the terms & conditions states “the architect shall maintain… professional indemnity insurance… provided such insurance continues to be offered on commercially reasonable terms to the architect…” Clause 7.6 states “the architect shall inform the client if such insurance ceases to be available at commercially reasonable terms… in order that the architect and client can discuss the best means of protecting their respective positions”. Clause 7.5 states “the architect, when reasonably requested by the client, shall produce for inspection a broker’s letter or certificate confirming that such insurance is being maintained.”

41. The Committee noted the unchallenged evidence of the Registered Person that he was of good character. The Chair provided a direction to the Committee confirming that he had the benefit of his good character in assessing both the truthfulness of his evidence and his propensity to commit the alleged misconduct.

42. The Committee also noted the evidence from the Registered Person that he was aware of his obligations to tell his clients about the status of the PII and that it “would have been easy”, in his view, to tell them as he enjoyed a good relationship with them. He stated that his conduct was reckless and that he had turned a blind eye to his obligations regarding PII. He stated that he did not have any intention to mislead or cheat his clients. He also stated that some of his clients did not have a good level of English, but he was not considering this at the time with sufficient care. He was, he said, “continuing as before” without thinking and was not considering that there was any misrepresentation. He accepted, in cross examination, that the information contained within his letters was incorrect as to PII. He acknowledged that he had not done his duty to ensure the information was accurate. He stated that if he was trying to be dishonest then he would not have sent the letters at all.

43. The Case Presenter submitted to the Committee that the correspondence sent to the clients gives a clear indication that the Registered Person is suitably insured, which was not true, and the failure of the Registered Person to correct the misrepresentation would be considered dishonest by ordinary standards.

44. The Committee finds that the Registered Person made a deliberate and conscious decision in 2019 not to renew his PII and this decision continued for the next 4 years. It is clear from the evidence of the Registered Person that throughout this period he was aware that he should have PII and, in his own words, that the failure to hold appropriate insurance cover “would catch me out”. The Registered Person also speculated that he could have disclosed the true picture to his clients, but he chose not to.

45. The Committee is satisfied that the correspondence sent to his clients throughout the period during which the Registered Person did not hold adequate PII cover gave a clear indication that insurance was in place. The Registered Person knew throughout this period that there was no PII and he confirmed in evidence that he simply did not change his practise nor the content of his standard correspondence when his PII cover expired. The Committee is satisfied that continuing to send his standard terms of engagement and failing to inform his clients that he no longer held adequate and appropriate PII cover would be considered dishonest by the standards of ordinary decent people.

46. The Committee was mindful of the evidence from the Registered Person of the many factors in his personal and business activities that would be both troubling and distracting during the relevant period. However, these factors do not amount to a defence. The Committee also noted the consistent evidence of the Registered Person that he neither intended to be dishonest nor did he believe that he had been dishonest. However, it is the objective standards of an ordinary decent person that the Committee have applied when assessing the issue of dishonesty in accordance with the case of Ivey.

47. In conclusion, the Committee finds the facts proved in relation to particulars 3(b) in respect of the conduct in particular 2.

Unacceptable Professional Conduct

48. The Committee went on to consider whether the Registered Person’s conduct amounted to Unacceptable Professional Conduct (UPC).

49. The Committee heard submissions from ARB, 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.

50. The Case Presenter drew attention to the findings of dishonesty and multiple breaches of the Code. The Registered Person accepted that his conduct amounted to UPC.

51. 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”.

52. The standards required to be followed by the Registered Person are contained in The Architects Code: Standards of Conduct and Practice 2017. 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 taken into account should it be necessary to examine the conduct or competence of an architect.

53. 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) and that seriousness needs to be given proper weight, as described by Collins J in Nandi v GMC (2004) EWHC 2317 (Admin) as “conduct which would be regarded as deplorable by fellow practitioners”.

54. The Committee considers that the Registered Person’s actions fell short of the following Standards of the Code:

i. Standard 8.1
ii. Standard 1.1

55. The Committee was satisfied that the findings in respect of particular 3(a) and (b) were particularly serious. The finding of dishonesty is a serious departure from the standards expected of architects. Not maintaining PII for 4 years represented a protracted and significant financial risk to both clients and the Registered Person himself and was serious and amounted to UPC alone. However, the failure to inform clients of the absence of PII, whilst giving the impression PII existed through his standard terms and conditions, aggravated the overall seriousness.

56. The Committee finds UPC proved.

 

Sanction

57. 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. The Committee heard submissions by the Case Presenter, legal advice from the Chair and took careful note of the ARB sanctions guidance 2022. The Committee had regard to the public interest 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.

58. The Committee was mindful that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. Any sanction must balance the rights of the Registered Person against the need to uphold proper standards and protect the public.

59. The Committee heard submissions from the Case Presenter and the Registered Person who expressed his great regret and emphasised his early admissions and cooperation. He accepted the exposure of risk to his clients but asserted that he had otherwise discharged his professional duties competently. He stated that he had gone to great efforts to rectify his PII situation and had an unblemished 10-year history as an architect.

60. 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.

61. The Committee found the following aggravating factors:

i. A substantial risk of harm to clients.
ii. A pattern of poor conduct as the conduct was deliberate and repeated on 16 occasions over a 4-year period.
iii. Dishonesty; found proved in respect of allegation 2.

62. The Committee found the following mitigating factors:

i. Evidence of insight and remorse; the Committee was satisfied that the Registered Person has shown insight and consistently expressed genuine remorse for his conduct.
ii. Personal circumstances: the Committee was satisfied that the Registered Person was enduring significant stress in his business and personal life.
iii. Evidence of remedial action taken to prevent repetition; The Committee was satisfied that the Registered Person went to considerable efforts to obtain retroactive PII in order to protect his clients.
iv. The Registered Person is of good character with no blemishes on his 10-year membership of the ARB.
v. The Registered Person made admissions at an early stage, cooperated with the investigation and volunteered to participate in a Consent Order disposal.
vi. The Registered Person stated that he had represented the profession overseas and that he financially supports his elderly mother who lives in Türkiye.

63. The Registered Person told the Committee that he is currently working on several projects that require his continued registration to complete and that if he were suspended or erased from the register that this would affect his main source of income. He is the sole director of a limited company established in 2012. His bundle of evidence contained testimonials from five current or former clients who attested to his good character and professional ability.

64. In light of all the evidence and the factors highlighted above, the Committee considered this case to be at the higher end of the scale of seriousness for misconduct amounting to UPC.

65. The Committee went on to consider the sanctions available to it in ascending order. It first considered whether it was appropriate to impose no sanction. Given the serious nature of the findings, this was not considered appropriate.

66. A Reprimand was not considered suitable as the findings are too serious and although there are some factors such as insight, corrective steps and good disciplinary history, they are not significant enough to satisfy the Committee that this would be an appropriate or proportionate sanction.

67. A Penalty Order was also considered unsuitable as the seriousness of the conduct, including a finding of dishonesty, was such that this would not be an appropriate or proportionate sanction considering the overarching purpose of sanctions upholding the confidence of the public and maintaining proper standards.

68. The Committee considered whether a suspension order was the appropriate sanction. This would be appropriate for serious offences.

69. The Committee was satisfied that there is little likelihood of repetition and therefore little ongoing risk to the public. There is little evidence of entrenched integrity issues as demonstrated by the steps taken by the Registered Person to correct and rectify his situation. He has also demonstrated that he has reflected upon his conduct with a self-critical eye and the Committee is satisfied the behaviour is unlikely to be repeated.

70. The sanction of erasure was considered to check the correctness of the decision and the Committee was satisfied that the conduct was not fundamentally incompatible with continued membership and that, although dishonesty was found proved, it was not so egregious that erasure would be appropriate.

71. The Committee took into consideration the personal mitigation and the adverse impact that a suspension will have on the Registered Person, but the seriousness of the case requires a sanction that reflects the misconduct if the reputation of the profession is to be maintained.

72. The Committee therefore imposes a suspension order of 6 months in this case.

73. This concludes this determination.