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Mr Philip Charles Syborn

THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Philip Charles Syborn (048089D)
Held as a video conference

On
25-27 November 2020

———-

Present

Sean Hammond (Chair)
David Kann (PCC Architect Member)
Jules Griffiths (PCC Lay Member)

———–

In this case, ARB was represented by Ms Hannah Eales of Kingsley Napley LLP.

Mr Syborn attended the hearing but was not legally represented.

The Professional Conduct Committee (“PCC”) found Mr Syborn guilty of Unacceptable Professional Conduct (“UPC”) in that he:

(1) Did not enter into a written agreement with the Complainant which adequately covered the terms of engagement contrary to standard 4.4 of the Architects Code; and

(2) Failed to effectively communicate with the complainant.

and that by doing so, he acted in breach of Standards 4.4 and 6.3 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is a reprimand.

 

The Allegation

  1. The allegation made against Mr Syborn (“the Respondent”) is that he is guilty of Unacceptable Professional Conduct.
  1. The Architects Registration Board (“ARB”) relies upon the following particulars in support of the allegation:
    i. The Architect did not enter into a written agreement with the client which adequately covered the terms of engagement contrary to standard 4.4 of the Architects Code;
    ii. The Architect failed to carry out the agreed works within a reasonable time period;
    iii.The Architect failed to effectively communicate with his client.

Background

  1. The Respondent is a registered architect at Syborn + Atkinson Chartered Architects.
  1. In January 2019, the Complainant sought the assistance of an architect with the internal redesign of the top floor of his property in Vauxhall, London (“the property”). After conducting an internet search through ‘findanarchitect.com’, Syborn + Atkinson registered their interest and the Respondent arranged to meet the Complainant at the property on 23 January 2019.
  1. Prior to that meeting, the Complainant sent the Respondent an outline of his requirements via email. This included his request for assistance with the internal redesign of the property and an evaluation as to whether an adjacent disused garage was causing structural damage to the property.
  1. Following the meeting on 23 January 2019, the Respondent emailed the Complainant, in which he stated:“I am fully engaged on a Planning Application I am about to submit, but I will find some time before the end of the month to consider the matter and then will be in touch”.
  1. On 1 February 2019, the Complainant sent a follow-up email to the Respondent informing him that he had travel commitments from mid-February to mid-May 2019. In the email, the Complainant stated:“I would welcome your consideration and advice re. way ahead especially as I wish to move on to the architectural/ planning matters prior to leaving for a couple of months.” 
  1. On 6 February 2019, the Respondent responded to that email, apologising for the delay and stating he would visit the property the following day. However, that visit was re-scheduled.
  1. On 7 February 2019, the Respondent emailed the Complainant. He stated that he had undertaken some research into the planning history of the property. He advised that it may be difficult to deal with the adjacent garage in a timely manner and suggested that it may be better to proceed on the basis that it would not be included in the project. The Respondent stated that although there was scope to remodel the interior of the property, the Complainant’s desire to alter the property externally would require planning permission with special consideration to the Vauxhall Conservation Area. The Respondent confirmed that he would be happy to be involved in the project but requested that they establish the budgetary constraints. Within the email, the Respondent also set out the fee structure for Syborn + Atkinson’s involvement. He suggested that it would be best for them to undertake the work at an hourly rate on a time spent basis during the ‘inception’ phase. He went on to state that Syborn + Atkinson normally made an initial charge of £450 plus VAT in advance of commencement which is set against the subsequent fee account.
  1. On 8 February 2019, the Respondent visited the property. It was agreed the Respondent would assist with concept/planning drawings for the submission of a pre-planning application to redesign the top floor of the Complainant’s property and the adjoining disused garage, on the proviso that the garage had not yet been purchased by the Complainant.
  1. Following that meeting, the Respondent emailed the Complainant on 11 February 2019, confirming that he was happy to proceed with the appointment on that basis and attached an invoice for his fee of £450 on account. The Complainant paid this fee on 14 February 2019.
  1. The Respondent did not provide the Complainant with any further written terms of engagement in relation to Syborn + Atkinson’s involvement with the project.
  1. On 12 February 2019, the Complainant requested the Respondent attend the property so that the pre-planning application could be discussed. On 14 February 2019, the Respondent attended the property to discuss the pre-planning application and conducted the electronic measured survey.
  1. On 21 February 2019, the Complainant emailed the Respondent seeking an update on progress. Within that email, the Complainant stated:“please let me know of your intentions and my input required as I depart next week till mid-May and I am keen to progress”.
  1. On 23 February 2019, the Respondent acknowledged this email stating he was plotting the survey and would be in touch “very shortly”.
  1. On 25 February 2019, the Respondent emailed extracts from the survey drawing and a copy of the Ordnance Survey sheet. He informed the Complainant he would finalise the survey elevations and formulate a proposal for the design. The Complainant replied the following day stating his priority was the concept design for his property, the adjacent garage and the glass at the side and front on the top floor. He reiterated he was keen to make progress with the project.
  1. On 27 February 2019, the Respondent confirmed via email that he had “made sufficient progress with the survey drawing plans and elevations to begin to think about the concept design”. He confirmed he understood the Complainant’s proposed strategy and would explore his suggestion of a sloping roof. He also queried the number of rooms the Complainant wanted to have in the property.
  1. On 4 March 2019, the Complainant responded setting out his vision for the property, commenting:“I am glad you are making progress as I am keen to develop up the pre-planning application and connect with all potential interested parties in writing so we can obtain buy-in…

    Please progress and enlist my comments/ input whenever the need.”

  1. On 1 April 2019, the Complainant emailed the Respondent requesting an update on the progress of the works. The Respondent replied on 3 April 2019, advising that he had been on holiday for two weeks but would be making progress with the project in the near future and would then “forward what I have to you for comment”. The Complainant did not hear anything further from the Respondent.
  1. On 8 May 2019, the Complainant emailed the Respondent and expressed his concern and disappointment about the Respondent’s lack of progress. The Complainant requested a full refund of the fees paid on account. The Respondent did not reply to this email.
  1. Thereafter, the Office Manager of the Complainant’s company continued to try to make contact with the Respondent on behalf of the Complainant with a view to obtaining a refund. However, the Respondent did not return his telephone calls or reply to his emails.
  1. On 20 May 2019, the Complainant’s Office Manager notified the Respondent that legal proceedings would be commenced through the County Court to reclaim the monies paid.
  1. On 11 June 2019, the Complainant sent his complaint to ARB.
  1. On 8 July 2019, the Complainant sent a letter of complaint to the Respondent.
  1. On 22 July 2019, the Respondent answered the Complainant’s letter of complaint and agreed to a mediation appointment on 6 August 2019. The County Court proceedings were resolved through the mediation process.
  2. On 3 October 2019, the Respondent sent a letter to the Complainant. In that letter, the Respondent stated:“Up until 8 May I had felt we were able to interact and work together on your project in a reasonable and friendly manner. I was therefore very upset to be effectively summarily dismissed by email the day before your return from Panama.

    I have re-read the file sent to me by the ARB and, whilst I do not accept all that you assert, I am very sorry you were dissatisfied with me.

    I think we could have made good progress with a straightforward meeting in early May upon your return. With the survey drawing of the building in front of us, and some to-ing and fro-ing on the options open to you both with and without the adjoining property the basis of an approved scheme could have been agreed very easily. However, that was not to be.”

     

Admissions

  1. At the outset of the hearing the Respondent admitted particular 2(i) of the allegation.


Discussions and Reasoning:

  1. The Committee considered the following documentary evidence:
    i. The Report of ARB’s Solicitor dated 22 April 2020;
    ii. The 35 pages of documents exhibited by ARB’s solicitor;
    iii. The Respondents representations dated 14 October 2019 and 9 January 2020; and
    iv. The Respondent’s witness statement dated 4 November 2020.
  2. The Committee heard oral evidence from the Complainant and the Respondent. The Committee found both to be credible witnesses in relation to the matters in issue.
  1. The Committee accepted the legal advice given by the Legally Qualified Chair. It had regard to the fact that the burden of proving the facts was on ARB and that the civil standard applied, namely the balance of probabilities. Whether the alleged conduct amounted to UPC was a matter for the Committee’s independent judgement to which no burden or standard of proof applied.
  1. The Committee heard submissions from Ms Eales on behalf of ARB. The Respondent adopted his written submissions.
  1. The Committee had regard to the guidance published by ARB and to the content of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

Findings of Fact and UPC

  1. The Committee made the following findings of fact.

Particular 2(i) of the Allegation (Proved)

  1. In reaching this decision, the Committee took into consideration the Respondent’s admission to this part of the allegation. The Committee also noted the Respondent’s explanation that ordinarily he used the RIBA Domestic Professional Services Contract. However, on this occasion he had not done so a he believed it would have been daunting for the Complainant to receive it in relation to the initial work.
  1. The only terms of engagement provided by the Respondent to the Complainant were in his emails dated 7 and 11 February 2019. The Committee was satisfied that these emails did not adequately deal with:
    i. An estimate of the Respondent’s total fees for the work;
    ii. Who would be responsible for what work. The Committee noted that some details were provided but the scope of the work was unclear;
    iii. Any constraints or limitations on the responsibilities of the parties;
    iv. The provisions for suspension or termination of the agreement, including any legal rights of cancellation;
    v. A statement confirming adequate and appropriate insurance cover as specified by ARB;
    vi. The existence of any Alternative Dispute Resolution schemes that the contract is subject to and how they might be accessed;
    vii. That a complaints-handling procedure is available upon request; and
    viii. Confirmation of registration with the Architects Registration Board and so that he is subject to the Code.
  1. The Committee next considered Standard 4.4 of the Code. The Committee noted that Standard 4 of the Code is headed:“Manage your business competently”.
  1. Standard 4.4 of the Code states:“4.4 You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:

    i. the contracting parties;
    ii. the scope of the work:
    iii. the fee or method of calculating it;
    iv. who will be responsible for what;
    v. any constraints or limitations on the responsibilities of the parties;
    vi. the provisions for suspension or termination of the agreement;
    vii. a statement that you have adequate and appropriate insurance cover as specified by the Board;
    viii. the existence of any Alternative Dispute Resolution schemes that the contract is subject to and how they might be accessed;
    ix. that you have a complaints-handling procedure available on request;
    x. that you are registered with the Architects Registration Board and that you are subject to this code.”

  1. The Committee noted that it is the architect’s responsibility to ensure that the terms of engagement that he uses are compliant with the requirements of the Code. In this case, the Committee was satisfied that the Respondent’s emails dated 7 and 11 February 2019 did not fully comply with those requirements.
  1. The Committee therefore found particular 2(i) of the allegation proved.
  1. The Committee also found that the Respondent breached Standard 4.4 of the Code.


Particular 2(ii) of the Allegation (Not Proved)

  1. The Committee was satisfied that although there were no written terms of engagement, when the Respondent visited the property on 8 February 2019, it was agreed between the parties that he would assist with concept/planning drawings for the submission of a pre-planning application to redesign the top floor of the Complainant’s property and the adjoining dilapidated, disused garage.
  1. There was a further meeting at the property on 14 February 2019 and the Committee was satisfied that during this meeting, the Complainant made clear to the Respondent that he was going to be away from the UK on business from the end of February 2019 until early May 2019. The Complainant also made clear that he wanted the pre-planning application to be ready for submission to London Borough of Lambeth Council (“LBLC”) in mid-May 2019.
  1. The Committee noted that there was no evidence that the Respondent had made any progress with the pre-planning application after 27 February 2019. However, the Committee accepted the Respondent’s evidence that the reason he had not made progress on the pre-planning application during March and April 2019, was due in part to his concerns that some aspects of the project would not be acceptable to LBLC.
  1. The Committee accepted the Respondent’s evidence that he knew the Complainant was returning to the UK in early May 2019 and that he had intended to contact him on his return to request a site meeting to discuss the project and what would be acceptable to LBLC. The Committee further accepted the Respondent’s evidence that given the size and nature of the project it would have taken him no longer than a week to prepare the pre-planning application for submission to LBLC.
  1. Regrettably, the Respondent failed to communicate any of this to the Complainant. The Committee noted that the last communication from the Respondent was his email dated 3 April 2020 which said that he would be making progress in the near future.
  1. The Committee accepted the Complainant’s evidence that as a consequence of the Respondent’s failure to keep him informed and apparent lack of progress, he emailed the Respondent on 8 May 2019 requesting a full refund of fees paid on account. The Committee acknowledged that this was an expression of his frustration at the situation.
  1. The Respondent stated in evidence that he was shocked to receive the email dated 8 May 2019 and that he interpreted it as a summary dismissal and termination of his agreement with the Complainant. The Committee noted the following parts of that email:“I note with concern again that after our meetings/ surveys and our advance payment… To date nothing has been progressed…

    As this has not been achieved by Syborn + Atkinson, even taking into account the wasted 2 weeks you failed to inform pre-commission that you would be on holiday. I have zero time for ineptness and no dot suffer fools gladly let alone rudeness through time wasting.

    Therefore, in view of your total failure. We expect a total refund to be repaid to our company forthwith (450 GBP + VAT). Failure to comply will result in immediate legal action for the said amount plus all costs.”

Having regard to the content and tone of the email, the Committee was satisfied that the Respondent’s interpretation of it was correct.

  1. The Committee concluded that as a consequence of this, the Respondent did not contact the Complainant on his return to the UK as he had planned to do and that therefore, no site meeting took place to discuss the project and the progression of the pre-planning application. The Committee was satisfied that had such a meeting taken place in early May, then it may have been possible for the Respondent to complete the pre-planning application for submission to LBLC by mid-May 2019.
  1. In these circumstances, the Committee was of the view that the Respondent was deprived of the opportunity of completing the pre-planning application within the time period previously agreed between the parties.
  1. The Committee therefore found particular 2(ii) of the allegation not proved.

 

Particular 2(iii) of the Allegation (Proved)

  1. In reaching this decision, the Committee accepted the Complainant’s evidence that he had difficulty in contacting the Respondent. The Committee was satisfied that the Complainant’ evidence in this regard was supported by the chronology of the email correspondence between him and the Respondent. The Committee noted that the Complainant had repeatedly contacted the Respondent for updates on the progress of the project but that the Respondent had failed to provide adequate responses.
  1. The Committee was satisfied that during the meeting at the property on 8 February 2019, it was agreed that the Respondent would assist with concept/planning drawings for the submission of a pre-planning application to redesign the top floor of the Complainant’s property and the adjoining dilapidated garage. The Committee was further satisfied that Respondent understood that the Complainant wanted the pre-planning application to be submitted to LBLC by mid-May 2019.
  1. The Committee noted that on 27 February 2019, the Respondent emailed the Complainant and stated that he had “made sufficient progress with the survey drawing plans and elevations to begin to think about the concept design”. The Complainant responded on 4 March 2019 and stated “I am glad you are making progress as I am keen to develop up the pre-planning application… Please progress and enlist my comments/ input whenever the need.” The Committee noted that the Respondent did not respond to this email.
  1. On 1 April 2019, the Complainant again emailed the Respondent requesting an update on the progress of the works. The Respondent replied on 3 April 2019. He stated that he had been on holiday for two weeks, but would be making progress with the project in the near future and would then “forward what I have to you for comment”. The Committee noted that notwithstanding this assurance, the Complainant did not hear anything further from the Respondent. This led to the Complainant sending a final email to the Respondent on 8 May 2019, expressing his concerns and requesting a full refund of the fees paid to the Respondent on account.
  1. In his evidence, the Respondent accepted that he had failed to adequately communicate with the Complainant. He accepted that with the benefit of hindsight he should have kept the Complainant updated as to his progress with the project. He stated that on reflection he ought to have written to the Respondent explaining his progress with the survey and the difficulties that had arisen. He acknowledged this was an omission on his part.
  1. For the reasons set out above, the Committee found particular 2(iii) of the allegation proved.
  1. The Committee next considered Standard 6.3 of the Code. The Committee noted that Standard 6 of the Code is headed:“You should carry out your professional work conscientiously and with due regard to relevant technical and professional standards.”

 

  1. Standard 6.3 of the Code states:“6.3 You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.”
  1. The Committee found that after 27 February 2019, the Respondent failed to adequately respond to a series of emails from the Complainant and as a result thereof, the Respondent failed to effectively communicate with his client. The Committee was satisfied that the Respondent’s failing resulted in the Complainant not being kept informed of the progress of the pre-planning application that was due to be submitted in mid-May 2019.
  1. The Committee therefore found that the Respondent breached Standard 6.3 of the Code.


Findings in relation to UPC

  1. Having found particulars 2(i) and 2(iii) of the allegation proved and, having found that the Respondent had acted in breach of Standards 4.4 and 6.3 of the Code, the Committee went on to consider whether the Respondent’s conduct amounted to UPC.
  1. 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.
  1. In reaching its findings, the Committee considered all of the evidence presented to it, the submissions made by Ms Eales and by the Respondent and accepted the advice from the Legally Qualified Chair.
  1. 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.
  1. The Committee reminded itself that a finding of UPC is a matter for its own independent judgment and that there is no burden or standard of proof.
  1. The Committee 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… practitioner in the particular circumstances”.
  1. For an architect, the rules and standards ordinarily required to be followed are contained in the 2017 Code.
  1. 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.
  1. The Committee accepted that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions”. The Queen on the Application of Dr Malcolm Noel Calhaem v General Medical Council [2007] EWHC 2606 (Admin).
  1. The Committee also recognised that any failing must be serious. Vranicki v Architects Registration Board [2007] EWHC 506 Admin.
  1. In relation to particular 2(i) of the allegation, the Committee found that the terms of engagement provided by the Respondent were inadequate and that he had breached Standard 4.4 of the Code.
  1. In the Committee’s view, it is a fundamental requirement that an architect complies with this aspect of the Code. Clear and comprehensive terms of engagement are necessary at the outset to provide clarity and to inform both parties of their rights and responsibilities. The Committee was therefore satisfied that the Respondent’s failing was sufficiently serious to amount to UPC.
  1. The Committee next considered the Respondent’s proven conduct in respect of particular 2(iii) of the allegation. The Committee found that the Respondent failed to effectively communicate with his client and had breached Standard 6.3 of the Code.
  1. In the Committee’s view, Standard 6.3 imposes an expectation on an architect to keep the client informed of the progress of work undertaken on their behalf. In the circumstances of this case, the Committee considered that the Respondent’s failure to respond to emails from the Complainant was a serious failing, capable of diminishing not only his own reputation but also that of the wider profession. The Committee was satisfied that the Respondent’s conduct fell short of the standard expected of an architect and, in its judgement, amounted to UPC.
  1. The Committee therefore found the Respondent guilty of UPC in relation to particulars 2(i) and 2(iii) of the allegation.


Decision on Sanction:

  1. Having found that the Respondent is guilty of UPC in relation to particulars 2(i) and 2(iii) of the allegation, the Committee considered what, if any sanction to impose.
  1. The Committee heard submissions from Ms Eales on behalf of ARB and from the Respondent.
  1. In reaching its decision, the Committee had regard to the Sanctions Guidance published by ARB and accepted the advice of the Legally Qualified Chair. The Committee exercised its own independent judgement.
  1. The Committee reminded itself that the primary purpose of sanctions is to protect members of the public, to maintain the integrity of the profession, and to declare and uphold proper standards of conduct and competence. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests and the need to act proportionately.
  1. The Committee noted that appearance before this Committee is in itself salutary and that the Act does not require the Committee to impose a sanction in every case where a guilty finding is reached so the Committee may choose to impose no sanction.
  1. If it decides that it is necessary to impose a sanction, then the sanctions available to the Committee are:
    i. Reprimand;
    ii. Penalty Order (a fine of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500;
    iii. Suspension (for a maximum of two years); and
    iv. Erasure.
  1. In determining the seriousness of the Respondent’s misconduct, the Committee has identified the following mitigating factors:
    i. The misconduct was a single episode in a previously unblemished career approaching 40 years. The Respondent has no previous regulatory findings recorded against him;
    ii. The Respondent has demonstrated genuine insight and remorse and has apologised for his behaviour;
    iii. The Respondent made open and frank admissions at an early stage. The Respondent admitted particular 2(i) of the allegation;
    iv. The Respondent has taken remedial action to change his practice to prevent the misconduct from reoccurring; and
    v.The risk of repetition of the misconduct is very low.
  1. The Committee identified no aggravating factors in this case.
  1. The Committee therefore considered whether the level of seriousness of this case was so low that it would be disproportionate to impose a sanction.
  1. The Committee was satisfied that the Respondent’s appearance before it has been a salutary experience. The Committee took into consideration the fact that the Respondent has demonstrated genuine insight into his failings. The Respondent told the Committee how he has changed his practice as a result of these proceedings. He stated that in every new instruction from a client, he now uses the RIBA Domestic Professional Services Contract and if necessary, he explains to the client that he failed to do so in the past and that he now insists on it. The Respondent also told the Committee that he was now much more aware of the need to routinely update clients in relation to the progress of work being undertaken even if nothing new to report. The Respondent stated that he now manages his workload to ensure that he is not placed under pressure in the way that he was in February to May 2019. However, the Committee has found that the Respondent breached Standards 4.4 and 6.3 of the Code. In the Committee’s view, both of these standards are fundamental requirements of the architect/client relationship. In all of the circumstances, the Committee concluded that the Respondent’s misconduct was too serious for it to impose no sanction. The Committee was satisfied that a sanction was required to protect the public, to maintain confidence in the profession and to declare and uphold proper standards of conduct and competence within the profession.
  1. Having determined that it was necessary to impose a sanction, the Committee considered each available sanction in ascending order of severity.
  1. The Committee first considered whether to impose a reprimand. The Committee noted that reprimand is the least severe sanction that can be applied. It may be used in relation to offences which fall at the lower end of the scale of seriousness, and where it would be appropriate to mark the conduct or competence of an architect as being unacceptable.
  1. Having regard to its previous findings in the case, the mitigating factors identified and the Sanctions Guidance, the Committee decided that a reprimand was the appropriate and proportionate sanction in the Respondent’s case.
  1. The Committee was satisfied that a reprimand would be sufficient to protect the public. Furthermore, this sanction together with the Committee’s findings in relation to UPC would be sufficient to mark the Respondent’s conduct as unacceptable and to safeguard the integrity of the profession and to declare and uphold appropriate standards.
  1. In deciding whether a reprimand was the appropriate sanction, the Committee did consider the imposition of a Penalty Order. However, the Committee considered that this sanction would be disproportionate in all of the circumstances of the case.
  1. The Committee therefore imposes a reprimand which will remain on the Respondent’s record and will be published on ARB website for one year from the date of this determination.
  1. That concludes this determination.