Mr Olgierd J Miloszewicz
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
MR OLGIERD JERZY MILOSZEWICZ (073182J)
Held on 19 – 22 April 2022
Via video conference
Andrew Webster QC (Chair)
Stuart Carr (PCC Architect Member)
Alastair Cannon (PCC Lay Member)
In this case, the Architects Registration Board (“ARB”) is represented by Ms Kathryn Sheridan of Kingsley Napley LLP (“the Presenter”).
Mr Olgierd Miloszewicz (“the Respondent”) has attended the hearing but is not legally represented.
The Professional Conduct Committee (“PCC”) found Mr Olgierd Miloszewicz guilty of unacceptable professional conduct (“UPC”) in that he:
(1) did not provide adequate terms of engagement to the Complainant, contrary to Standard 4.4 of the Architects Code;
(2) did not
(b) adequately communicate with his client by not responding to correspondence at all from 7 May 2021 onwards;
(3) did not deal with a complaint appropriately, contrary to Standard 10 of the Architects Code;
(4) did not co-operate fully with his regulatory requirements contrary to Standard 11 of the Architects Code; and
(5) did not provide evidence of adequate Professional Indemnity Insurance cover to the ARB when requested to do so contrary to Standard 8 of the Architects Code.
and that by doing so, he acted in breach of Standards 4, 8, 10 and 11 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).
The sanction imposed is a suspension of six months.
1. The Charge against the Respondent is that he is guilty of UPC.
2. The particulars alleged in support of the charge are:
(1) the Respondent did not provide adequate terms of engagement to the Complainant, contrary to Standard 4.4 of the Architects Code;
(2) the Respondent did not
(a) adequately progress the project in a timely manner and in accordance with timescales agreed with his client;
(b) adequately communicate with his client by not responding to correspondence at all from 7 May 2021 onwards;
(3) the Respondent did not deal with a complaint appropriately, contrary to Standard 10 of the Architects Code;
(4) the Respondent did not co-operate fully with his regulatory requirements contrary to Standard 11 of the Architects Code; and
(5) the Respondent did not provide evidence of adequate Professional Indemnity Insurance cover to the ARB when requested to do so contrary to Standard 8 of the Architects Code.
3. 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 made in consequence thereof; and if so, what order should be imposed.
4. The Respondent is a registered architect, practising as A1 Architecture Planning Development. In or about late 2020 and in 2021 he provided professional services to A (“the Complainant”) who, together with his partner, had purchased a former retail property with a view to its conversion into residential property for letting purposes. During the course of work, relations between the Complainant and the Respondent broke down and matters were brought to the attention of ARB. ARB undertook enquiries.
5. Further to rule 18 of the Professional Conduct Committee Rules, the Respondent, having been invited to admit any the facts contained within the report before the Committee, admitted particular (2)(b) of the allegation within the Charge. Otherwise, he denied the particulars of the allegation.
Response to allegation
6. The Respondent pled not guilty to the Charge of UPC.
7. The Committee heard evidence from the Complainant and from the Respondent. The Complainant adopted his witness statement and gave further oral evidence. The Complainant was not cross-examined by the Respondent. In addition, the Committee had regard to the unchallenged witness statement of Viviana Schejtman, an Investigations Officer at ARB, and to the documentary material presented with the Report to the Committee. The Presenter on behalf of the ARB made submissions on the evidence. She invited the Committee to find the allegation proved in its entirety and to find the Respondent guilty of UPC. The Respondent declined the opportunity to make submissions in reply.
Findings of fact
8. In reaching its decisions the Committee carefully considered the submissions made, together with the evidence presented to it, both in documentary form and in oral evidence.
9. The Committee also had regard to the advice of the Legally Qualified Chair that on disputed issues of fact, the onus of proof was on the 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.
10. The findings of the Committee are:
Particular 1: FOUND PROVED.
11. Standard 4.4 of the Architects Code: Standards of Professional Conduct and Practice (“the Code”) provides that before undertaking any professional work an architect should enter into a written agreement with the client which adequately covers 10 identified issues.
12. In his evidence the Complainant stated that he received as an attachment to an email from the Respondent an initial fee estimate dated 19 October 2020 for the planning stage of the proposed conversion of the property that had been acquired. No other proposed terms of engagement or contract were sent by the Respondent, other than a further fee estimate dated 12 February 2021 and emailed to the Complainant on 13 February 2021. That estimate included for, amongst other things, structural design work. Subsequent emails on 23, 24 and 25 February 2021 between the Complainant and the Respondent settled the fee to be paid and identified that the structural design work was “time-sensitive” and would “be done in approximately two weeks”. The Complainant was not cross-examined by the Respondent. It was not suggested to the Complainant in evidence that there were any other documents that might amount to contractual documents or terms of engagement. The Complainant’s evidence was that the Respondent had proceeded to provide professional services further to the work proposed in the first estimate. He had also provided professional services further to the work proposed in the second estimate, but not in respect of the structural design work proposed. The Complainant stated that he received some architectural drawings on 7 May 2021, but they did not relate to the proposed structural design work. He had, however, as agreed, made a partial payment in advance for the structural design work.
13. The Respondent did not identify any other contractual documentation in respect of the work. His evidence was that his clients usually did not want too much paperwork. The relevant parties were, he said, to be identified in the emails he sent. His Professional Indemnity Insurance cover was referred to on his website. If clients wished for further information, they could ask for it and they would receive it.
14. The Committee found that there was no dispute in the evidence that the documentation sent by the Respondent on 19 October 2020 and 13 February 2021 and the subsequent emails on 23, 24 and 25 February 2021 was the full extent of the written agreement between the Respondent and his client(s). However, the Committee finds that the emails and fee estimates, even when taken together, failed to meet the expectations of Standard 4.4. Although the fee estimates contained a narrative of the scope of the work proposed by the Architect and his proposed fee, they fell conspicuously short of the full requirements of Standard 4.4 of the Code.
15. In his uncontested evidence the Complainant advised that the property to be redeveloped had been acquired by him and his partner. The estimates were silent as to the contracting parties. Although emails were sent to the Complainant, it is not clear, in the light of the purchase of the property by the Complainant and his wife whether only the Complainant or the both of them were the commissioning client(s). The Committee determined that the addressee of the emails was not necessarily synonymous with the commissioning client(s) and that therefore the documentation failed to identify adequately the contracting parties. Further beyond the scope of the work, the correspondence did not identify who would be responsible for what; it did not specify whether, and if so, there were any constraints or limitation on the responsibilities of the parties; nor did it specify any provisions for suspension or termination of any agreement, including legal rights on cancellation. Further still, it did not raise the issue of any Alternative Dispute Resolution scheme; it did not advise that the Respondent had a complaint-handling procedure available on request; nor did it advise that the Respondent was registered with ARB and that he was subject to the Code.
16. Accordingly, the Committee found that the fee estimates and emails failed to meet the standard required within Standard 4.4 of the Code as to the provision of adequate terms of engagement and that no other attempt had been made to set out the matters required by Standard 4.4. Accordingly, the Committee found this particular proved.
Particular (2)(a): FOUND PROVED IN PART: The Respondent did not adequately progress the project in accordance with time scales agreed with his client.
17. In his evidence, the Complainant stated that the structural design work was a time sensitive matter to be completed as soon as possible, but it had never been received. He had repeatedly sought progress from the Respondent, but to no avail. His evidence was consistent with the documentary correspondence. The Committee noted the email from the Complainant to the Respondent dated 24 February 2021 in which time sensitivity was raised. As already noted, on 25 February 2021 the Respondent replied by email and advised that the structural design work would “be done in approximately two weeks.” However, on 28 April 2021 the Respondent sent a WhatsApp message to the Complainant advising that: “I’m still working with the structural. Checking alternative loads case. Maybe, I will call you when I’m ready with everything. Or, maybe better, I’ll email you structural part, then put my hands on day light study and then we will meet. Or chat. OK?” Further, on 5 May 2021 the Complainant emailed the Respondent referring to an earlier discussion in which the Respondent had committed to completing the structural work by the previous Thursday (i.e. 29 April 2021). Despite various attempts to ascertain from the Respondent what the position was as regards provision of the structural design work, the Respondent failed to communicate further with the Complainant after an email dated 7 May 2021.
18. In his evidence, the Respondent explained that after having undertaken on 25 February 2021 to complete the structural design work in approximately two weeks, he became aware during a site inspection on 8 March 2021 that there was an issue as to the adequacy of the building’s foundations. Further, on 18 March 2021 planning permission was refused. The refusal of the planning permission necessitated a reconsideration of the redevelopment to accommodate light issues, but that entailed further structural work and a consideration of access requirements during any work phase. These latter matters were to be addressed by commissioning a light study and as part of that study commissioning a 3D model of the adjoining properties. Whilst he had done significant work on the structural study before the 8 March 2021, the new information and the refusal of planning permission required further work to be done. He said the Complainant agreed to fund the £300 which the light model would cost. However, despite the model being obtained, he stated that he had not received payment from the Complainant for that work. However, that evidence was not put to the Complainant for comment. He said he had provided further proposed architectural design changes, but because the design process was not completed the structural work remained outstanding. He had declined to answer the Complainant’s enquiries as he regarded them as a form of harassment. He had not produced the structural design work to the Complainant.
19. The Committee found the Complainant to be a credible and reliable witness. His evidence corresponded to the documents that were available to the Committee. His evidence was not challenged. Whilst the Respondent offered evidence as to the reasons why he had not completed the structural study work, he did not dispute that he had on 25 February 2021 given a timeline of “approximately two weeks” for the structural study work; nor that he had in discussions with the Complainant committed to complete it by 29 April 2021. The Committee accepted the evidence of the Complainant as to these agreed timescales and that the Respondent had failed to meet them.
20. However, the Committee had no evidence before it against which to assess what would have been a timely period for the completion of the structural study works in the light of the actual state of the property. Without such evidence it was not able to conclude whether the Respondent’s failure to produce the structural study work was inadequate in point of time.
21. The Committee therefore determines that particular (2)(a) of the allegation has only been proved in part, namely that the Respondent did not adequately progress the project in accordance with timescales agreed with his client.
Particular (2)(b): ADMITTED AND FOUND PROVED.
22. The Respondent admitted this particular of the allegation, namely that he did not adequately communicate with his client by not responding to correspondence at all from 7 May 2021 onwards. The Committee noted that the admission was consistent with the documentary material before it. The Committee thus found this particular proved.
Particular (3): FOUND PROVED.
23. Standard 10 of the Code sets out expectations as to how a registered architect is to deal with disputes or complaints appropriately. In particular, complaints are to be handled promptly and as far as practicable an acknowledgement of a complaint should be made within 10 working days from receipt of a complaint and a response addressing the issues should be provided within 30 working days of the initial complaint.
24. The Committee accepted the evidence of Complainant that he had, by email, advised the Respondent on 26 May 2021 of his dissatisfaction with progress of the work. The Committee was satisfied that the email on its terms carried a clear implication of a complaint because the prospect of referral to the Committee was raised. The Committee also accepted the undisputed evidence of the Complainant that he had not received a response from the Respondent, either of acknowledgment or addressing the issues, other than a response to legal proceedings raised against the Respondent, received on 30 August 2021. In the absence of timely responses to the Respondent, as expected by the Code, the Committee determined that his particular had been proved.
Particular 4: FOUND PROVED.
25. Standard 11 of the Code raises an expectation on the part of registered architects to cooperate full and promptly with ARB and within any timescale if asked to provide information which ARB needs to carry out its statutory duties.
26. The Committee accepted the unchallenged evidence of Ms Schejtman, which referred consistently to the documentary evidence before the Committee. The documentary material disclosed that in response to the Complainant’s complaint to ARB dated 21 June 2021, on 6 September 2021 ARB emailed a request to the Respondent, in an attached letter dated, in error, 6 November 2021, to provide a response to allegations set out therein. A response by 20 September 2021 was required. No response was received. In the absence of a response, a further requirement for a response was made by email on 27 September 2021. A deadline for the response was given as 4 October 2021. Again, no response was received. In the light of the failure to make any response within the clear deadlines provided by ARB in its correspondence, the Committee concluded that this particular of the allegation had been proved.
Particular 5: FOUND PROVED.
27. Standard 8 of the Code requires registered architects to have in place adequate and appropriate professional indemnity insurance cover; and to provide evidence of the same to the ARB upon request.
28. The letter attached to the email of 6 September 2021 referred to above requested evidence of the Respondent’s professional indemnity insurance. Ms Schejtman’s uncontested evidence was that no response had been received from the Respondent in response to the request. Accepting her uncontested evidence, consistent as it was with the documentary material available to the Committee, the Committee therefore determined that this particular of the allegation had been proved.
Finding on UPC
29. Having found the foregoing facts proved, the Committee proceeded to consider whether the Respondent’s conduct amounted to UPC, that is “conduct that falls short of the standard required of a registered person” (s. 14(1)(a), Architects Act 1997). The Committee had regard to the advice of the Legally Qualified Chair that the issue of whether the proved conduct amounts to UPC is one for the Committee’s independent judgment.
30. The Committee determined that the Respondent’s conduct was serious and of wide-ranging concern. The agreement reached between the parties, such as it was, was little more than a broad statement of proposed works and cost. The protections afforded to both clients and registered architects by a letter of engagement or contract setting out matters detailed in Standard 4 of the Code are valuable in preserving not only the interests of the parties, but also the reputation of the profession. Being a registered architect affords many advantages, but also entails duties and responsibilities which the public are entitled to expect to be followed. The Respondent’s actions demonstrated little regard to the requirements of Standard 4.4 of the Code.
31. Further, his failure to adequately progress matters according to a timetable he initially offered and one further timetable which he subsequently agreed had significant consequences for the Complainant in that, as the Complainant proffered in evidence, he had then to seek other professional advice, with consequent delay. More significantly, however, the Respondent’s failure to adequately communicate with the Complainant in the light of the failures to progress the work to the timetables agreed exacerbates the unacceptable nature of the Respondent’s conduct. Whilst the Respondent may have had a view as to the Complainant’s conduct, it was not justification for failing to acknowledge the complaint and responding to it. The Code expects registered architects to engage with complaints and the public are entitled to expect that the profession will adhere to that standard when disputes arise. For the Respondent not to do so seriously undermines the reputation of the profession.
32. The Respondent’s failure to cooperate with ARB by responding within the timescale initially provided, and as subsequently extended, demonstrates, in the view of the Committee a serious failure by the Respondent to acknowledge the importance of the regulatory process and proceedings. If ARB’s regulatory function were to be undermined by the failure of registered architects to engage, the system of regulation may be brought into disrepute. Whist the Respondent had provided information on 30 August 2021 to ARB in response to the complaint made by the Complainant, he did not co-operate fully when, after allegations had been formulated for investigation by his professional body, he was asked by them for a formal response. By that time, the Respondent had already responded to the civil proceedings brought against him. Furthermore, the Respondent’s failure to provide evidence of adequate Professional Indemnity Insurance cover was another serious failure on the part of the Respondent to acknowledge the important role of regulation in the public interest.
33. Cumulatively, but also taken on their own, each and all of the proven particulars are serious shortcomings on the part of the Respondent to which the descriptor UPC is to be applied. The Respondent’s conduct fell short of the standard to be expected of an architect. Members of the public would, in the opinion of the Committee, be shocked that an architect had conducted himself in such a manner. The Committee thus determined that the Respondent’s conduct does amount to UPC.
34. The Committee went on to consider whether a disciplinary order was necessary.
35. The Presenter submitted that it was appropriate to recognise that the Respondent had no previous regulatory findings, had engaged with the regulatory process before the Committee and had made a factual admission. However, she submitted, his conduct demonstrated wide-ranging concerns which was illustrative of a pattern of poor performance. It was not an isolated incident but had persisted over a period of time. His conduct had been deliberate and repeated. He had chosen to ignore repeated requests for communication from the Complainant, despite being aware of the terms of the Code. He had submitted a fee estimate that was inadequate on its terms despite knowledge of the Code and he had maintained during the hearing that his documentation was adequate. She submitted that the Respondent had demonstrated limited insight and had been unable to acknowledge his failures or accept responsibility for them. For example, he had admitted particular 2(b) of the allegation but not UPC. That, she submitted, indicated a lack of responsibility on the part of the Respondent. His conduct had caused the Complainant inconvenience and delay, with a financial impact. There was little evidence of remediation on the part of the Respondent and therefore a risk of repetition.
36. In reply the Respondent submitted that he understood his failures. He accepted the decision of the Committee. He asked that it be noted that this was the only occasion in 15 years of practice that he had been found to have failed in his professional responsibilities. In answer to questions from the Committee the Respondent stated that he would have to prepare a “standard bundle” to present to prospective clients and ask for them to acknowledge that they were not interested in such paperwork. He submitted that the project with the Complainant had “gone wrong” at a point in time when he “got sick” and it had drifted from his mind. He identified a need to rely less on oral communications with clients, and more on correspondence.
37. The Committee identified as mitigating factors in respect of the Respondent’s conduct the absence of any prior adverse regulatory findings and the limited factual admission made. Aggravating factors relevant to sanction included a substantial risk of harm to clients from a risk of repetition that arose, in the Committee’s view, from his wide-ranging failures to adhere to professional standards, including both in relation to the establishment of contractual relationships and managing their breakdown. His proven conduct demonstrated, in the view of the Committee, a pattern of seriously inadequate conduct in relation to the management of his business relationships and, in due course, his responsibilities towards his professional regulator. The Committee noted with concern the Respondent’s evidence that the information required by Standard 4.4 of the Code was not regularly offered by him to his clients. Although the Committee noted the Respondent’s immediate recognition that, going forward, when engaging clients he would endeavour to record more in writing, it considered that the Respondent had only limited insight into the requirements of the Code as regards the engagement and disengagement of clients.
38. The Committee first considered whether it would be appropriate to impose no sanction. However, it concluded that the level of seriousness of the Respondent’s conduct was not so low as to render it unfair or disproportionate to impose a sanction. The Respondent’s conduct was wide-ranging and deliberate and required to be sanctioned.
39. The Committee then considered whether a reprimand would reflect the seriousness of its findings. The Committee took into account the Respondent’s previous good disciplinary history. However, the Committee determined that the Respondent’s offending was not at the lower end of the scale of seriousness. His actions demonstrated a wide-ranging failure to give effect to professional standards designed to protect the public and the reputation of the profession. In addition, the Respondent had demonstrated little insight and had not taken any corrective steps, other than to immediately recognise the need for more correspondence with clients. Further, the events found proved, although relating to a single client, touched on different aspects of the Respondent’s practice and could not to be seen as an isolated incident. Furthermore, his conduct was deliberate. Therefore, the Committee determined that a reprimand would not mark the seriousness of the Respondent’s conduct.
40. The Committee next considered whether to impose a penalty order. The Committee determined that as the Respondent’s conduct in the establishment of contractual relationships and the management of the breakdown of relationships demonstrated deliberate and repeated failure to adhere to relevant professional standards a penalty order would not be sufficient to protect the public or to uphold public confidence in the profession or maintain professional standards. The reputation and proper regulation of the profession relies on adherence by its members to the standards of conduct it sets for itself. Deliberate non-adherence significantly undermines that confidence. The imposition of a financial penalty on the Respondent would not send out the appropriate signal to the profession and to the public about what behaviour is unbefitting of an architect.
41. The Committee determined that a suspension order was an appropriate and proportionate disposal order. It would reflect the seriousness of the Respondent’s conduct. In determining that a suspension order was appropriate the Committee noted that the Respondent did not demonstrate entrenched integrity issues. In his submission relative to sanction, he immediately identified a need to amend his professional practices. Given an opportunity to reflect on his conduct and his professional responsibilities as a registered architect, and time to put in place appropriate standard terms of engagement, the potential for the Respondent’s conduct to be repeated would, in the view of the Committee, be materially reduced.
42. The Committee acknowledged that a suspension order was likely to have a significant impact on the Respondent and had regard to his personal circumstances. However, it considered that it was appropriate to suspend the Respondent from the Register in order uphold proper professional standards and public confidence in the profession. His professional conduct, although unacceptable, was not dishonest, it was capable of remediation, and therefore was not fundamentally incompatible with continuing to be an architect. In reaching that view the Committee considered that an erasure order would be disproportionate.
43. The Committee determined to impose a suspension order for a period of six months. In settling on that period, the Committee determined it would be the minimum necessary to uphold public confidence and professional standards and would also provide a sufficient period for the Respondent to reflect on the findings of the Committee and to put in place arrangements to meet the requirements of the Code.
44. The disciplinary order imposed is a suspension order removing the name of the Respondent from the Register for a period of six months with effect from 22 April 2022.