Mr Stephen Yakeley
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Stephen Robinson Yakeley (037038J)
Held on 27, 28 September and 1, 2 October 2018
International Dispute Resolution Centre
70 Fleet Street
Paul Housego (Chair)
Roger Wilson (PCC Architect Member)
Jules Griffiths (PCC Lay Member)
Steve Battersby (Clerk)
In this case, the Board is represented by Iain Miller of Kingsley Napley.
Mr Yakeley has attended this hearing and is legally represented by Sîan Mirchandani.
- The Respondent appears before the Professional Conduct Committee (“the Committee”) of the Architects Registration Board (“the ARB”) to respond to an allegation of unacceptable professional conduct (“UPC”). The ARB allege that:
“1. The allegation made against the Respondent is that he is guilty of Unacceptable Professional Conduct in relation to his involvement with the refurbishment of (a property) (for a particular client).
- The ARB rely on the following particulars in support of the allegation:
i That the Architect failed to keep his client adequately informed of matters affecting costs;
ii That the Architect failed to act appropriately following the termination of his engagement by making excessive demands for payment for work;
iii That the Architect failed to pay fees owed following the decision of the Adjudicator.”
- The preamble to the Code states that any failure to comply with the provisions of this Code is not of itself to be taken as constituting UPC or serious professional incompetence, but it shall be taken into account in any disciplinary proceedings before the Board’s Professional Conduct Committee.
- It also states that architects are expected to be guided in their professional conduct and professional work by the spirit of the Code as well as by its express terms. The fact that a course of conduct is not specifically referred to in the Code does not mean that it cannot form the basis of disciplinary proceedings.
- Each case is judged on its facts, and there may be circumstances in which UPC is found even where there has been no clear breach of the express terms of the Code. Not every shortcoming, or failure to meet the Standards expected by the Code, will necessarily give rise to disciplinary proceedings.
- The relevant provisions of the Code are:-
“ Standard 6
You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
6.3 You are expected to keep your client informed of the progress of work undertaken on their behalf and of any issue which may significantly affect its quality or cost.
Deal with disputes or complaints appropriately
10.2 Complaints should be handled courteously and promptly at every stage; and as far as practicable in accordance with the following time scales:
a an acknowledgement within 10 working days from the receipt of a complaint; and
b a response addressing the issues raised in the initial letter of complaint within 30 working days from its receipt.
3 If appropriate, you should encourage alternative methods of dispute resolution, such as mediation or conciliation.
Respect for others
12.1 You should treat everyone fairly and in line with the law.”
- The Complainant provided the Respondent with a budget at the outset for costings for the entire project. The Complainant’s position is that detailed costs information was not provided to him and when costs were presented at a later date they were considerably higher than he had expected. The Complainant later terminated the contract, on 26 September 2016. The Respondent provided an invoice for his work and the Complainant disputed the amount claimed. In due course the Respondent referred the matter to adjudication. The fee for adjudication was to be split equally between the parties but the Respondent refused to pay his share of the fee.
Burden and standard of proof
- The ARB is required to prove the facts of the allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it.There is no requirement for the Respondent to prove anything. The Committee had in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply. In particular the Respondent has the right to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to UPC is a matter for the Committee’s judgment, and there is no burden of proof. A finding of UPC requires the Committee to judge that conduct to be serious.
- This matter first came before the Committee in June 2016. Ms Mirchandani was then instructed by the solicitor’s firm which had advised the Respondent at the time. It was apparent to the Committee that the Respondent blamed them for his situation. There was a conflict of interest as plainly Ms Mirchandani could not take instructions from that firm of solicitors about the present instructions, nor direct from the Complainant. The Committee indicated that if the defence was to be that all actions were by reason of following legal advice then the Committee would expect to be shown the requests for advice and to see the advice that was given. This was legally privileged and the Committee would not order the production of such documentation, but was unlikely to take at face value the defence that everything had been done on legal advice without that advice being produced. Counsel requested an adjournment, which the Committee granted. Subsequently the Respondent instructed new solicitors and on legal advice decided to waive privilege in respect of his correspondence and communication with his (now) former solicitors.
- The Committee perused the report of the Board’s solicitor with accompanying documents. The Board called evidence from the Complainant.
- The Committee perused the two witness statements of the Respondent (with addendum to the first) and the bundles of documents accompanying them.
- The Committee heard oral evidence from the Complainant and from the Respondent
Submissions and advice
- The Committee heard from the Board’s solicitor in opening the case, and had written and oral submissions from Counsel for the Respondent, and the benefit of advice from its Clerk.
- The Respondent says that he is not a cost expert and cannot be blamed for the cost overrun. He says that it was not his fault that the Complainant had not provided clear budget information to him.
- The Respondent blames his solicitor for not advising him properly once the Complainant had terminated his retainer. He said that he did absolutely nothing wrong throughout. He said that he followed advice that he said that he had later realised was wrong. He was not a lawyer and he had done the right thing in taking advice and following it.
- He claimed his Complainant was at fault, and was trying to evade payment. While he had now realised he had to pay the adjudicator, he still maintained that the adjudicator was wrong, was incompetent, had breached natural justice, was biased and acted in bad faith. While he would not now be pursuing the invoices, they were entirely within the terms of the contract which he said the Complainant had not bothered to read, but had signed.
- The Respondent blames the Complainant. When asked how he thought he would feel if he were the Complainant the Respondent replied that he would feel guilty as a man who had not honoured his contractual obligations. Elsewhere he accused the Complainant of bad faith, of being disingenuous, of seeking to intimidate him to avoid what the Respondent felt that he, the Complainant, knew to be his legal obligation to pay the Respondent the bills rendered.
- The Committee has taken full note of various requests for advice and the advice given to the Respondent by his solicitors, in whom he reposed trust and confidence having used them for upwards of 30 years. For example:
- at R4:4 – first request for advice of the 17 October 2016:
“Finally, whilst we are very annoyed by his recent behaviour, we do not wish our email to be taken to be impolite and/or unreasonable so if you can see a way of making it more civil without diminishing the strength of arguments, please advise.”
- a telephone attendance on 28 November 2016 where the solicitor is recorded as stating that the Respondent should “throw the kitchen sink at them” now (R5:71).
- on 05 December 2016 the Respondent sent two letters to his solicitor asking for detailed comments and there was a 17 minute discussion about them (R5:77-78).
- on 08 December 2016 an attendance note (R584/85) of a telephone conversation stated that the solicitor had “skim read” the very lengthy letter to the solicitors and looked carefully at the last 8 or 9 pages, said that he could “find no flaw in our invoices” said that it was polite and that it was perfectly acceptable to draw harsh conclusions, that the figures were fine although the defamation sum might be too high to secure a sensible negotiating response but that the offer seemed sensible.
- on 09 January 2017 Mr Yakeley’s attendance note on his solicitor (R5:106) stated that “I wondered if we were claiming too much time in chasing fees” and records that his solicitor said that he had a good case for being forced into that position by the Complainant not paying anything because they were not able to afford lawyers.
- on 21 October 2016 a solicitor at firm (not the libel specialist) suggested the text for email (R5:39), which did state “we are entitled to damages” for defamation and referred to a figure of profit of up to £200,000 per contract. However this was in an email which specifically stated that it was unlikely that this was serious enough for defamation, that if it was they would not recover anything substantial, and there was no evidence of any actual financial loss.
- a telephone note made by the Respondent of 08 December 2016 (R5:84) recorded the solicitor stating that there was “no flaw” in the invoices and supporting emails and that the letter of that date was exactly how the solicitor would phrase it, was polite and that it was perfectly acceptable to draw harsh conclusions and that the figures were fine. The note said that the solicitor said that the sum demanded for defamation might be too high to secure a sensible negotiating response but his offer seemed sensible.
- an email dated 19 October 2016 from his solicitor stating
“if your client has wrongfully terminated the appointment without providing this notice you may be entitled to the loss of profit from the remaining stages (not the full amount of fees). I would advise invoicing as you have set out in your draft email. These costs have been incurred under the contract and you are entitled to invoice for them.”
- As to the adjudication, he says he took legal advice and was advised that there was a failure to follow natural justice in the curtailment of submissions and that he was advised this was a breach by the adjudicator that entitled him (and the Complainant) not to pay the adjudicator.
Assessment of oral evidence
- The Committee found the evidence of the Complainant to be clear and objective. He conceded matters where appropriate. His evidence was concise and factual, and consistent over the whole period of the dispute and complaint. The Committee accepted his advice as truthful. The evidence of the Respondent involved the giving of long answers, not necessarily on point, and was noteworthy for a total lack of insight into the matters giving rise to this hearing. His evidence was that he was faultless, and everything was the fault of others, if there was fault at all.
Matters affecting costs
- The Respondent was instructed by a Complainant in April 2016, through recommendation to his wife, an interior designer who is part of the firm of the Respondent. The ARB brings the allegation following a complaint by that Complainant, who had bought (for £1.35m), and wished to refurbish, a basement flat of 72 m2 in central London, with an indicative budget, or guide, of £100,000 inclusive of fees and VAT, to be completed by Christmas (ARB1:53). The Complainant indicated this was not a ceiling. The Respondent gave no indication that this was inadequate although he said (on 26 April 2016) that “to allow leeway” he would insure for the project to £200,000 (ARB1:60-61). On 21 August 2016 (R3:77) the Complainant wrote
“As we have indicated in our last few meetings, we are if necessary prepared to spend significantly more than £100K. We do not wish to be extravagant but neither do we wish to compromise on basic quality.”
They had told him that when they refurbished their main home they had spent double the budget.
- There were a number of meetings to discuss the project and the Respondent showed the Complainant a flat recently finished, to show the work of the contractor the Respondent recommended. On the Respondent’s recommendation the Complainant appointed a quantity surveyor.
- On 19 August 2016 (ARV 1:298) the Respondent emailed the Complainant
“(Contractor) and Chris (quantity surveyor) have been in discussion on costs. You have seen in (another flat) what is possible at a very high cost per square metre and (contractor) had assumed the same standard at (client’s flat). We felt this might be a bit on the high side for you so sat down with them and went through the estimate line by line, separating out some elements which we imagine you may not want. We gather we reduced it circa £100,000 – £120,000. (Contractor) are finalising this with Chris and we hope to meet with you soon to go over it. Whilst we will leave it to Chris to present you with the figures when they are agreed, we are clear it will be rather more than your £100,000 indicative budget.”
- On 31 August 2016 the Respondent presented 3 cost options of between £343,000 and £500,000 (excluding VAT and fees), having previously given no costs indication at all.
- When the Complainant expressed surprise at the level of figure the Respondent emailed on 01 September 2016 (R3:83) to say that a figure of £343,300 worked out at £4768 per m2, and that the other flat
“worked out about £9500 per m2 so that on that very crude basis to us as mere designers to be in the right ballpark” it continued “however we are not privy to the dark mysteries of estimating…”
- The Complainant pointed out (email 01 September 2016, R3:82) that although the Respondent, the quantity surveyor and the contractor had all been through the quotes, none of them had noticed that the header of the document given for the project was that of the apartment the client had been shown by the Respondent, and that the floor area was given as 128 m² instead of the 72 m² of the flat, so that items such as flooring (and ceilings) were necessarily vastly overstated.
- On 08 September 2016 the Respondent emailed the Complainant “We can understand that you were surprised by the cost of the scheme” (R3:85). It went on to say how they might discuss removal of certain items with the contractor.
- On 08 September 2016 the Complainant emailed in reply to say he wanted the contractor to proceed (R3:86) but the figure was still too high. His evidence was that he was being told that he had to commit to the contractor (which had done a great job on the flat he had seen) or lose that contractor, and there would be great delay seeking another.
- While the client may have been prepared for a doubling of the £100,000 initial guide, he was most certainly not prepared (5 months in) to be presented with a doubling of double his guide start point.
- There was no discussion of costs or budget for the project between the Respondent and the QS until mid-August 2016, after the contractor gave a figure of £500,000, and by reason of that figure. The client did not raise cost with the QS, because although it was a separate appointment (at the Respondent’s request) he viewed the Respondent as leading the project. In early September 2016 the Respondent pressed the Complainant to commission the contractor to start work with no firm costs agreed.
- After some reflection, on 26 September 2016 the Complainant lost confidence in the Respondent, and terminated the relationship by email (ARB1:97), making clear that he expected to pay for what had been done in design work. He had decided that he had to start again from the very beginning.
- The contract prepared by the Respondent and signed by the client provided for invoices at 17½ % of professionally estimated construction costs, at various stages.
- On 28 October 2016 after consulting his solicitor, the Respondent tendered an invoice of £74,217.64 including VAT (ARB1:76) for stages A-F inclusive: which is from inception to full design stage, until construction starts.
- This first bill was based on 17.5% (the percentage of estimated construction cost chargeable) for 40% of the work based on the 2nd option £454k costing and 17.5% of 35% of the £343k for the 3rd option. The account was based on the construction cost estimate which included an error (128 m2 not 72 m2 without any adjustment in the construction cost), which meant that the construction cost was inevitably overstated.
- The Complainant disputed this account. The Respondent invoiced the Complainant for dealing with the complaint, asserting that he had a contractual right to do so. That second bill was of £45,899.29. This included loss of profit for stages H-J, not yet started, (the Respondent asserting that summary termination was a breach of contract and if they had given notice the work would have got to that stage by the expiry of notice) and his time in dealing with the complaint and charging for his wife’s time at meetings, not included in the first account.
- On 12 January 2017 the Respondent rendered a 3rd invoice of a further £28,042.24 for time charges dealing with the response to the client’s solicitor’s letter objecting to payment of the previous 2 invoices.
- Instead of dealing with this as a dispute about fees, the Respondent accused the Complainant of trying to evade payment of money he said the Complainant must have known was due to him
“… they have now found it expedient to evade paying our agreed fees on the basis of spurious and unsupportable claims” and
“… We wonder if (client) would wish to see their unprincipled attempts to avoid paying fees, reasonably and contractually due, made public”
“Perhaps one of the most disreputable aspects of the (client’s) regrettable behaviour since 21 September in attempting to evade their contractual obligations, knowingly entered into, is their apparent attempt to render us so impecunious by their failure to pay us that we would not have the resources to pursue this matter to a fair conclusion. We can assure you and them that is not the case.”
(letter 08 December 2016, R3:106, 144 and 146).
- He had charged the Complainant 166½ hours for perusing his files and researching the law. He said he did this to save money as he did not wish to spend more than he needed on lawyers’ fees. His time was longer because he has a medical condition giving rise to a hand tremor and so his typing is not accurate, and it took him a long time physically to type letters of over 40 pages. He charged for all that time.
- The Complainant had, early on, offered £25,000 to the Respondent in a Part 36 offer to settle from his solicitor dated 16 November 2016 (R3:102-104).
- The Respondent took advice about possible defamation (the Complainant had observed to the proposed contractor that the Respondent was not interested in project costs (e.g. R3:141)), and was advised on 21 October 2016 by his solicitor’s defamation expert (R5:35) that there was little or no prospect of succeeding in such a claim. On 21 October 2016 (R5:39) on the Respondent’s instructions the solicitor drafted an assertive and threatening letter to the Complainant’s solicitor. That email from the solicitor also included the advice that he was very unlikely to succeed, and could show no loss.
- On 08 December 2017 he made his own Part 36 offer to settle (R3:147A/B) in a 41 page closely typed letter (R3:105 -146) offering to settle the dispute with the Complainant for £182,116.93, which included £60,000 for losses said to flow from asserted defamation. This said at point 10.3
“We are advised that we are entitled to substantial damages from the [client] to compensate us for both the harm caused to our reputation at large and the loss to our business which arises as a result of their comments.”
This was not true, as the lawyer had suggested text for the threatening email, but had categorically advised that the Respondent would not succeed in a defamation action; that if he did succeed in such a claim damages for loss of reputation would be small; and that there was no evidence of any financial loss. In his oral evidence to us the Respondent repeatedly said that he was not a lawyer, but that he understood simply that he should tell the truth. At 10.3.1.2 of the same letter he stated
“Work that has been carried out by us in the luxury west London residential property market has yielded profits in the region of £150,000-£250,000 per contract. In light of the very real risk that the [client’s] comments will cause us to lose contracts in this area, we are legally advised that any award of damages would be likely to be at this level.”
This was not true. He had received no such advice. His advice had been the reverse.
- The matter went to adjudication, and on 09 April 2017 (ARB1:8 et seq) the adjudicator (ARB1:28) awarded £29,648.54 of invoice 1, £2,190 for invoice 2 and nothing for invoice 3, and a small amount of interest.
- The Respondent then accused the adjudicator of incompetence, bad faith, deliberate bias and deliberate falsehood. (ARB1:197) He refused to pay his half of the adjudicator’s fee, so that the client had to pay it all.
- After Counsel representing the Respondent was instructed in this case, the Respondent was advised that he should have paid the adjudicator. The client had paid the entire fee, and the Respondent has now reimbursed the client for the one half of the fee which he should have paid initially.
- The Committee noted the terms of the Code, above, and that a client can reasonably expect an architect to have a working knowledge of cost ranges and will be able to give an idea of whether a client’s initial budget is likely to be realistic, and should keep this under review as a project proceeds, and develops. It is not acceptable to give no advice to the client until a final costs estimate was given from a contractor so far in excess of the starting point.
- The Respondent had just finished a similar project which he had shown the client, and which the client liked. As the client pointed out, the likely cost per m2 of this project would be known to this architect.
- The size of the flat was known, and the Respondent should have known that £100,000 was not an adequate budget for what the client had in mind: he should have said that he was designing to a cost per m2 of over £4000, which at a late stage he had said was “in the right ballpark”.
- The client was given no indication of cost level at any time before 30 August 2016. the Respondent says this is all the client’s fault for being imprecise about by how much the £100,000 could be exceeded, and for making assumptions that he had not checked with the Respondent. The Respondent is the professional here. He knew his client’s aspiration. He knew the client would go over that figure and led him to believe that it would no more than double. He then showed him a luxury apartment (where the cost of the joinery alone exceeded £100,000) without ever giving him any indication of the cost of that luxury apartment. That apartment’s cost was £9500 per m2, as he knew. For a 72 m² flat that would mean a cost of £684,000 at the same rate. For the Respondent to show this other apartment to the client, knowing that the starting point was £100,000 for the whole project without giving any indication that the cost to the finish showing in the other apartment would be over 6 times that budget is reprehensible.
- When the client told him that the budget was £100,000 he had responded to say that
“In the absence of any cost information at this point we confirm that we will maintain professional indemnity insurance cover for the sum of £200,000 (to allow some leeway). However this should not be taken as a construction cost estimate at this early stage”.
The client had assumed that because these two figures occurred in the same paragraph that they were in some way connected. He was not to blame for that assumption. The word “However” in the middle of the paragraph made it clear (to him) that liability in respect of a project was unconnected with budget in respect of it. The Committee finds as a fact that a reader of that paragraph would be likely to consider that this meant that the cost of the project at inception would be somewhere over £100,000 but not more than £200,000. If there is ambiguity (which this Committee cannot see) that is the fault of the architect.
- There was no other cost information provided to the client at any time between inception at April 2016 and 30 August 2016 when 3 cost options were presented, varying from £343k to £500k.
- The Committee made findings of fact that the architect led the client to the view that the maximum would be £200,000, by reference to insurance for the project to that sum.
- While clients frequently add to projects as they progress (as here) the architect should give some guidance or advice as to the cost consequences, but the Respondent gave none until 31 August 2016. The Respondent failed at inception when he did not say that £100,000 was inadequate. When the other apartment was shown to the client (who liked it and wanted to adopt some of the ideas and finishes in it) the Respondent gave no idea of the cost of that flat and what it would cost to deal with the client’s flat in that way. The Respondent did not discuss costs with the QS or the contractor, taking the view that this was a matter for the QS and the contractor, and that he would tell the client when they had done their work.
- He suggested that the client appoint a quantity surveyor, but did not liaise with that quantity surveyor as to client expectation or budget cost until after the contractor had provided a figure of £500,000 (net of VAT and fees, so nearer £700,000 in all). Then the Respondent discussed matters with the contractor and came back with two other figures of £454,000 and £343,000, again both net of VAT and his own costs. It is plain that the figure of £100,000 was in the Respondent’s mind because of the email of 19 August 2016 (ARB 1:298) which specifically refers to that indicative budget when saying that they were in discussion to bring down the quote.
- While the client for a while struggled with the concept of trying to continue, eventually the client terminated the agreement, after the Respondent had produced a 4th, lower, project figure of £312,000. The client had lost all faith in the Respondent’s ability to deliver the project at any given figure. The Respondent then billed him 17½% of a costs figure of which the client could have had no inkling. If the client was prepared for a doubling of the initial cost guide of £100,000, he was most certainly not prepared for that doubled figure to be doubled again.
- This matter is unconnected with solicitor’s advice.
- This particular of the allegation is found proved for these reasons.
- The invoices are said to be based on the contract. They are said to be raised after seeking solicitor’s advice, and following that advice.
- the Respondent now says at paragraph 8 of his second witness statement that
“… it came as a considerable shock to me to learn, in conference with Counsel Ms Mirchandani on 18 May 2018, that the approach taken to pursuing invoices against the (client) had been incorrect and that these invoices should not have been raised.”
The nature of the advice from Ms Mirchandani or the current solicitor was, of course, privileged. We do not know what that advice was, and did not enquire. It makes the defence to charge 2 problematic. The defence is that while it is now accepted that the invoices were not proper, the Respondent was not acting inappropriately as he was following legal advice, from a reputable solicitor, as the Code suggests.
- This was somewhat undermined by the Respondent’s answer to questions about what he now thought about it all, which was that these were ethical/legal questions which he did not feel able or qualified to answer.
- There is a difficulty with the legal advice defence. The Committee has not been shown that this defence has been put to the solicitor, and there is no response from the solicitor to the accusation by the Respondent that their advice was problematic. While there may be reasons for this to do with professional regulation regarding that solicitor or a civil action, there is reliance on the telephone attendance notes made by the Respondent. It is said that the solicitor has said there are none in their file, and that the whole file without reservation was provided: but still the Committee does not know whether these are objectively accurate. While the Committee does not doubt that these are genuine notes, it is abundantly clear that the Respondent has a propensity to believe to be true that which he wishes to be true: notably the letter of 08 December 2016 asserting that he had advice that he had a good claim worth £150,000 – £250,000 (R3:143), when he had received advice 180 degrees different, but with text for a threatening email. Also the tenor of the advice may have been somewhat different to that recorded by the Respondent: hinted at in a note of a telephone discussion with his solicitor of 01 December 2016 (R5:75) at item 12
“(solicitor) thinks it important to be seen to be reasonable”.
- The whole tenor of the correspondence with the solicitor indicates a wish by the Respondent to bully the former client – for example a telephone note of 08 December 2016 (R5:84). He had charged the client for preparing a 40 page letter, and part of the reason for its length was that they would be charged by their own solicitor for it to be read (point 19) so as to increase their costs! No comment is required.
- We do not know that the solicitor knew the amounts that the Respondent intended to charge, or what that time was spent on (such as slow typing).
- The Committee takes the advice given by the solicitor into account as part of the factual matrix, but is not in any position to conclude (and has not concluded) that the advice was wanting, negligent or improper in any way. As agreed in the hearing, that advice is part of what happened, and relevant as to whether, in all the circumstances, is it blameworthy to a serious extent. The advice the Committee has seen may not be fully complete, for the reasons given. Counsel indicated that the usually privileged nature of the communications between the solicitor and the Respondent were relevant to the view to be taken of it. These were necessarily unguarded comments taken by someone in need of advice, and seeking it. While the Committee fully appreciates that this is the case, unless a client is being deliberately deceptive (not usual) what one sees in communications from clients to solicitors is their genuine perception of the difficulty about which they seek advice. The communications from the Respondent to his solicitor show no perception at all that the client may have any reason to feel hard done by, and show that he consistently and persistently attributes malevolent motives to people with whom he disagrees. That is a relevant consideration when looking at the matter overall.
- the Respondent has an extraordinarily one sided view of this matter. For example he wrote at R5:3 17 October 2016 to his solicitor
“He has invited us to submit a fee account on the ‘time based fee basis quoted in our agreement’ which leads us to suspect he is trying to evade paying us on the percentage basis that the agreement provides for. We also suspect he is mustering all the spurious reasons he can invent, no matter how preposterous, to bully us into reducing our fee.”
- In an email to his solicitor of 21 November 2016 (R5 66) the Respondent accuses the client of trying to “blatantly trying to rip us off”, he says that his 31 page draft letter is prolix and repetitive but hopes it will cause “shock and awe” to the client as it will cause them further cost, worry about a libel, a threat of an injunction, the sheer weight of written evidence against them and invites the lawyer to “add to their discomfort if you can think of anything more.” At page 74, a note of a telephone conversation on 01 December 2016 the Respondent records that his view was “I wished to be able to continue invoicing for my time, both for the income and for the incentive it might give the (client) to settle.” (Our emphasis.)
- This is not the way a professional should be conducting a dispute with a client. One does not seek to make a living from charging disgruntled former clients.
- The contract provides at 5.16
“The client shall indemnify the architect in respect of all costs reasonably incurred by the architect (including costs of the architect’s time) in recovering any amounts not paid when properly due and/or recovering interest arising…” (Committee emphasis).
- These charges were not reasonably incurred. To charge the client for legal research is not time properly expended. The charge was calculated by reference to an estimated construction the client could have no idea was in prospect. There was no justification for the use of the £454,000 figure at all. Nor was the £343,000 figure was not a figure the client could reasonably have expected: he was thinking it would be £200,000 maximum, and at the very outside with VAT and costs in addition. Worse, it was charged on a construction cost for a flat of 128 m² not 72 m². These were sums not properly due, as is accepted by the Respondent in his witness statement, if not in his oral evidence.
- In an email to his solicitor of 17 October 2016 (R5:4) the Respondent stated that he had completed stage E but
“We believe that he should have given us 30 days’ notice of termination by which time (contractor) would have started on site so by that time we would have completed stage F (20%).”
Accordingly, although the Respondent invoiced for the completed stage F this was after he had advised his lawyer that he had not in fact completed that stage. This was not proper charging. He invoiced for work he had not done.
- The charge for slow typing and time for legal research has been covered above.
- One has only to look at the figures: the client came with a guide budget of £100,000 (including fees and VAT (for a pied-a-terre) and received 3 bills totaling £148,159.17 for fees (with a subsequent offer to settle the dispute at £182k!) There is no clear evidence that the solicitor advised on the quantum of the bills other than a statement from the solicitor that if he had incurred time he should charge for it. At the same time, the Respondent had said that he wanted his own legal costs to be as low as possible and had agreed with the solicitor that he would “take the lead” (R5:77-78).
- Nor was much achieved: the adjudicator seems to the Committee to have encapsulated matters particularly well in an email to the Respondent of 27 April 2017 (ARB 1:192)
“Before this matter degenerates into litigation, I would suggest you reflect on how your position might appear to anyone outside of the dispute. You presided over a 4-6 times increased in projected budget without explanation or apparent concern. Your original appointment would have entitled you to circa £10k fee for completed services. Your claim extended this to £140k for partial services/the same project scope. The clause 5.16 client indemnification costs claimed were disproportionate and generally failed the tests outlined in the clause. From the evidence you presented to me, very few drawings or specifications had been produced and most of the tender negotiation work appeared to have been carried out by the QS. YAL [the name of Mr Yakeley’s firm] did not appear to have completed anywhere near the normal tender stage service they claimed fees for.” In the adjudication decision itself (ARB 1:24) “… the time claimed of 166.5 hours appears grossly excessive to investigate YAL’s legal position, especially considering Mr Yakeley claims to have significant expertise and the legal requirement relating to the CRA/Picardi case… Cl 5.16 is an indemnity for necessary costs, not open season to charge any time loosely expended with the case with impunity”.
“I consider the 44 page rebuttal sent by YAL, to which a significant proportion clause 5.16 costs claimed appear to relate to be unnecessarily protracted to the point of being counter-productive.”
The Committee agrees with these comments.
- These were 3 invoices deliberately inflated in a sustained course of action.
- This allegation is found proved for the reasons given above.
- The approach of the Respondent towards the adjudicator was inappropriate. He accused the adjudicator of all manner of failings including bad faith, incompetence and deliberate falsehood, as well as breaching principles of natural justice. He could have simply disagreed with the adjudicator and set out why, rather than imputing dishonourable motives to the adjudicator. He did not challenge that adjudication decision. The Committee has considered carefully the adjudicator’s decision, and having spent some days going through all the documentation the Committee sees nothing factual about it that has been shown to be erroneous.
- This allegation is factually admitted and is so proved.
- the Respondent is a very experienced architect and once ran a practice over 30 strong. He has written books for RIBA. He is a member of a learned profession. It is simply not acceptable to say that he followed legal advice without giving the matter any consideration of the ethics of his own profession.
- the Respondent’s attitude to the adjudicator, and his evidence to the Committee, does not lead the Committee to think there is any merit to the argument by the Respondent that he would have followed other advice had it been given. This was a client leading the charge.
- The Committee finds the allegation of UPC proved. Each particular is proved and each, together and separately, amount to UPC. These each have the sufficient seriousness for UPC. There is moral blameworthiness in each sufficient to amount to moral opprobrium. This was a sustained deliberate attempt to intimidate and overcharge the client, and the Respondent made no attempt to resolve matters with the client (an offer to settle at £182,000 not being such). The actions of the Respondent are far removed from the spirit of the Code.
- Ms Mirchandani spoke in mitigation. She stressed a 50 year unblemished career. He sought legal advice which was not robust, and was permissive. All rested on his construction of the contract. He had thought his client experienced and this had coloured his view. He had provided testimonials from his former solicitor and that firm’s managing partner, and from another architect with whom he had worked at Association of Consultant Architects and who was also a former vice president of RIBA. He had a meticulous nature which was partly why the letters had been so long. This was a massive lesson learned. He was now 77 and winding down. There would be projects uncertified if his right to practice was affected. Perhaps he had not been as flexible as he might have been earlier in his career, and he had missed the chance to step back.
- The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards.
- The Committee has considered the Indicative Sanctions Guidance (“ISG”). Appearance before this Committee is in itself salutary. 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 make no disciplinary order. If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500 for the charge of UPC.
- In the circumstances of this case we consider that a sanction is appropriate because of the need to declare and uphold professional standards, and because of its seriousness.
- The Committee identified the following mitigating and aggravating factors.
- The mitigating factors accepted by the Committee are limited to the long unblemished career, and the fact that he sought legal advice, and had engaged with this process. The client was experienced in the commissioning of academic buildings, but that was limited to making sure they were functionally suitable for students, and he had no more experience than most members of the public in flat refurbishment. This was not a massive lesson learned, for what was most striking about the oral evidence of the Respondent was his utter certainty that he was entirely in the right. While perhaps his lawyers might have offered him wider advice about what he was doing, the Respondent presented himself as an eminent member of the profession with 50 years’ experience, and yet he plainly has no idea about professional ethics. The Committee reject the submission that the length of letters was due to the Respondent being meticulous, as he told his solicitor they were so long so that he could charge more, and that it would cost the client more to have them read, and for a “shock and awe”
- The aggravating factors are:
- the Respondent has no insight into why his conduct should be considered reprehensible.
- There was no remorse or contrition.
- the Respondent blamed his client, his lawyer and the adjudicator, throughout. He attributed bad faith and lack of integrity to his client and to the adjudicator with no justification.
- He avowedly sought to make a profit from charging a client who disputed his invoices.
- The level of overcharging was enormous.
- The attitude displayed by the Respondent over a sustained period was not one of constructive dispute resolution but of trying to make life as difficult and expensive for the client as he possibly could.
- The relevant parts of the ISG are annexed. The Committee considered that this was a very serious series of matters, so that a reprimand was not appropriate.
- The Committee next considered a penalty order. The ISG refers to this as appropriate where the offence is too serious to warrant a reprimand, there is limited or lack of remorse and / or the architect has benefitted financially from the offence. All these apply to this case, save that the attempt to benefit financially was not, ultimately, successful, but not for want of trying. The Committee considers the entrenched attitude of the Respondent, the extent of the overcharging, and the completely inappropriate nature of what he did, and the way he went about it, render a penalty order an insufficient sanction.
- The ISG refers to suspension as being applicable where there is no evidence of entrenched integrity issues, the Committee is satisfied that the behaviour is unlikely to be repeated and this is conduct capable of being rectified. The Committee does not feel that these apply. The failure to provide costs information is not acceptable but is the least serious of the three. The approach to the adjudicator was lamentable and displayed an arrogance that is unworthy of a professional. The worst allegation is that relating to excessive charging. While the word “integrity” was removed from the allegation relating to over charging and was replaced with “inappropriately”, this still means the Committee must decide how far along the spectrum of inappropriateness the conduct of the Respondent was. This was at the most serious end of inappropriateness. To bill £147,000 to a client when the client had asked for help to refurbish a flat at an indicative cost of £100,000 including VAT and fees is truly appalling.
- An erasure order may be imposed by the Committee for those offences that are so serious that only a permanent removal from the Register will protect the public and/or the reputation of the profession.
- The Committee notes that there is no dishonesty alleged and that the ISG refers to a “severe lack of integrity” as an indicator of erasure and there was no allegation of lack of integrity in this case. Nor was there a “serious criminal offence”. That necessarily implies that less serious criminal offence may not lead to erasure.
- However in this case there is no insight, contrition or remorse. There is the risk of repetition, and so risk to other clients. There is the great damage to the reputation of the profession.
- The course of action of the Respondent set out in this decision was so egregious and lengthy that the reputation of the profession and the protection of the public oblige this Committee to erase the Respondent from the register of architects. Overall the Committee has concluded that the actions of the Respondent are behaviour that is fundamentally incompatible with him continuing to be an architect.
Schedule – ISG
Where the Committee decides that it is appropriate to impose a sanction in relation to a guilty finding, a reprimand is the lowest sanction that can be applied. It may be used in relation to those offences at the lower end of the scale of seriousness, where and where it would be appropriate to mark the conduct or competence as being unacceptable.
This sanction may be considered where the following factors are present (this list is not exhaustive):
- Evidence that the conduct or competence has not seriously affected clients/the public
- Insight into failings
- Genuine expression of regret
- Corrective steps taken
- Previous good disciplinary history
Like all disciplinary orders a reprimand will remain permanently on an architect’s record, but only published for two years after the date of sanction.
Penalty orders are fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500. Only one penalty order can be issued per charge, and under the Act only two charges can be brought (unacceptable professional conduct and/or serious professional incompetence). It may be used in relation to those offences too serious to warrant a reprimand, or where a lack of remorse or understanding is displayed.
This sanction may be considered where the following factors are present (this list is not exhaustive):
- Offence is too serious to warrant a reprimand
- Limited or lack of remorse
- Architect has benefitted financially from the offence
The Committee will specify the period within which the sum must be paid, and a failure to satisfy the order may lead to it being replaced by a suspension or erasure order. A penalty order is published for two years after the date of sanction.
A suspension order may be imposed by the Committee for serious offences, but not so grave as to warrant erasure from the Register. Suspensions are for a maximum period of two years and the architect is automatically reinstated to the Register at the end of the suspension period. Any individual suspended from the Register cannot use the title ‘Architect’ in business or practice.
This sanction may be considered where the following factors are present (this list is not exhaustive):
- An offence so serious that a reprimand or penalty order would be insufficient to protect the public or the reputation of the profession
- Behaviour that is not fundamentally incompatible with continuing to be an architect
- No evidence of entrenched integrity issues
- The PCC is satisfied that the behaviour is unlikely to be repeated
- Conduct capable of being rectified
- Non-payment of a previously imposed penalty order
A suspension order is publicised for the period of suspension and a subsequent two years from the date of reinstatement.
An erasure order may be imposed by the Committee for those offences that are so serious that only a permanent removal from the Register will protect the public and/or the reputation of the profession. Erasure from the Register is permanent, though an application may be made to the ARB for re-entry after no less than two years. The Committee may make a recommendation as to a minimum period of time before such an application should be considered.
- A serious criminal offence
- Behaviour that is fundamentally incompatible with continuing to be an architect
- The Committee lacking confidence that a repeat offence will not occur
- Dishonesty or a severe lack of integrity
- A persistent lack of insight into the seriousness of actions or consequences
- Non-payment of a previously imposed penalty order
Any individual erased from the Register is not permitted to use the title ‘Architect’ in business or practice (nor any reference to membership or fellowship of RIBA). An erasure order is publicised for a period of five years after the date of sanction.