Mrs Paula Butterfield-Groves

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

PAULA  BUTTERFIELD-GROVES (061480G)

Held on

11 – 12 September 2023

Via video conference

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Present:

Margaret Obi (Chair)
Stuart Carr (PCC Architect Member)
Jules Griffiths (PCC Lay Member)

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The Architects Registration Board (“the ARB”) was represented by Mr Greg Foxsmith of Kingsley Napley LLP (“the Presenter”).

Mrs Paula Butterfield-Groves (“the Registered Person”) attended the hearing but was not represented.

 

Allegation

1. The charge made against the Registered Person is that she is guilty of Unacceptable Professional Conduct (“UPC”). The particulars in support of the charge are:

 

1. The Registered Person sought to enter into an agreement which was intended to prevent the Referrer from submitting and/or proceeding with a complaint to the ARB;

 

2. The Registered Person did not appropriately manage and/or declare a conflict of interest;

 

3. The Registered Person’s actions at 1 and/or 2 lacked integrity.

 

Background

2. The Registered Person is a registered architect and is the Director of her own company, Butterfield Architecture Limited.

3. The background circumstances, as set out below, are based on the report prepared by Kingsley Napley LLP. The Presenter relied on this report during his opening of the case.

 

The Project

 

4. The Registered Person and her husband, Andrew Butterfield-Groves, were directors of a company called Huse Living Limited (‘HLL’). The Referrer is the Managing Director of FBG Construction Ltd trading as CEJ. On 14 August 2019, the Registered Person invited the Referrer to submit a tender as main contractor in relation to the development of four new build houses (‘the project’).

 

5. The Referrer agreed to be involved in the project. In November 2019, the Referrer was provided with a contract which detailed the construction and contractor design works necessary for the project. The Referrer was also provided with a JCT Intermediate Building Contract with Contractor’s Design (‘JCT Contract’) dated 9 December 2019. The JCT Contract provided for a contract sum of £650,000 with interim payments to be paid on a monthly basis. The Referrer was aware, from the Registered Person’s email dated 14 August 2019 and contract documents show that Huse Living Ltd (of which she was a director) was the Client/Employer, and she was the Principal Designer and Contract Administrator.

 

6. The works commenced on or around 9 December 2019 with a completion date set for 28 September 2020. However, practical completion of the project did not take place until 28 April 2021.

 

Settlement Deed and Release

7. Towards the end of the project, the relationship between the Referrer and the Registered Person broke down entirely and both sought legal advice. The Referrer reported the Registered Person to the ARB on 16 September 2021 and informed her of the same. The Referrer disputed the value of the executed works and believed that he was owed £160,000. He demanded payment in full. On 2 October 2021, the Referrer received a ‘Letter Before Action’ from the Registered Person’s legal representatives, S Solicitors (‘S Solicitors’), disputing the Referrer’s claim. Within that correspondence, there are references to the Referrer being asked to desist from behaving in a threatening and intimidating manner regarding the dispute over payment. The Referrer responded by threatening to remove goods from the site to the value he was owed if the Registered Person, Andrew Butterfield-Groves, and HLL did not meet his demands. In response, a second letter was received from S Solicitors on 8 October 2021 in which the Referrer was advised to direct all future correspondence to S Solicitors rather than contact the Registered Person or Andrew Butterfield-Groves directly. The letter stated:

 

“…it is clear from your correspondence that your intention is to intimidate and threaten our clients into paying sums to you that are genuinely disputed.”

 

8. The parties subsequently entered into a Settlement Deed and Release (‘SDR’) agreement in November 2021. The SDR provided that HLL would pay the Referrer £40,000 within one working day of the Referrer completing outstanding works on the project and returning the keys. Section 4 of the SDR provides as follows:

 

“4. Release and Agreement

This Deed is in full and final settlement of, and each party hereby releases and forever

discharges, all and/or any actions, claims, rights, demands and set-offs, whether in

this jurisdiction or any other, whether or not presently known to the parties or to the

law, and whether in law or equity, that it, its Related Parties or any of them ever had,

may have or hereafter can, shall or may have against the other party or any of its

Related Parties arising out of or connected with:

 

4.1 the Dispute

 

4.2 the underlying facts relating to the Dispute

 

4.3 Party A (CEJ Builders) will cease and or not commence any claim(s) against Paula Butterfield Groves (including but not limited to) the Architects Registration Board (emphasis added)”

 

9. The Referrer signed the SDR on 5 November 2021. Following the signing of the SDR the Referrer contacted the ARB to retract his complaint against the Registered Person. He was advised that an investigation had been opened and his assistance was required.

 

10. The ARB notified the Registered Person of the complaint on 5 January 2022.

 

Preliminary Issues – Application to Discontinue Particular 2  

Submissions

 

11. At the outset of the hearing the Presenter made an application to discontinue Particular 2. He informed the Committee that there had been concerns for some time that Particular 2 had weak prospects of success and it was referred back to the Investigations Committee under Rule 13 of the Investigations Rules (2019). However, it was decided that the referral should be maintained.

 

12. The Presenter reminded the Committee that the ARB bears the burden of proving Particular 2 and that the purpose of regulatory proceedings is not to administer punishment or compensation; it is to protect the public. The Presenter submitted that in light of the defence material that had been provided by the Registered Person, the ARB is of the view that Particular 2 has no realistic prospect of being found proved. He further submitted that there is evidence that the Registered Person set out her various roles in relation to the project. The Presenter informed the Committee that the ARB has reflected on the role of the Referrer. The ARB has taken the view that as the Referrer is an experienced contractor the inherent concern about the imbalance of power within the context of managing a conflict of interests is not the same as it would have been if he was a lay person. The Presenter further submitted that the Referrer was not primarily concerned about the conflict of interest issue.

 

13. The Presenter invited the Committee to conclude that Particular 2 was not sustainable and should be discontinued. He submitted that there is also little prospect that Particular 2 would amount to UPC even if found proved. He invited the Committee to amend the Allegation in the event that it acceded to the ARB’s application.

 

14. The Registered Person supported the application to discontinue Particular 2.

 

Decision

 

15. The Legally Qualified Chair (‘LQC’) advised that the Committee should consider and determine whether: (i) the ARB has proper grounds for discontinuing Particulars and has provided an objectively justified explanation; (ii) the particulars that remain would not amount to ‘under prosecution’; and (iii) it is in the interests of the public or fair to the Registered Person to pursue particulars of an Allegation that have no realistic prospect of establishing the alleged facts or UPC.

 

16. The Committee noted that there can be no public interest in pursuing an allegation that was bound to fail. It would be unfair to the Registered Person and would not be in accordance with the overriding objective to protect the public and the wider public interest.

 

17. The Committee accepted the submissions made by the Presenter that there is no realistic prospect that Particular 2 could be found proved. The Committee noted that there is evidence that the Referrer was advised of the Registered Persons various roles in relation to the project and as a consequence the evidential basis for Particular 2 is weak. The Committee was satisfied that a viable Allegation remains. The remaining particulars would not amount to ‘under prosecution’ as they more accurately reflect ARB’s public interest concerns.

 

18. In these circumstances, the Committee exercised its discretion and determined that Particular 2 should be discontinued.

 

19. Having determined that Particular 2 should be discontinued the Committee went on to conclude that consequential amendments should be made to the Allegation. The amended Allegation is as follows:

 

1. The Registered Person sought to enter into an agreement which was intended to prevent the Referrer from submitting and/or proceeding with a complaint to the ARB;

 

2. The Registered Person’s actions at 1 lacked integrity.

 

Admissions

20. The Registered Person admitted Particulars 1 and 2 (as amended). She made it clear that she was admitting that her professional conduct fell below the standards expected but in mitigation would be relying on the extraordinary circumstances which she maintained were taking place at the time.

 

21. The Committee announced that Particulars 1 and 2 had been found proved by reason of the Registered Person’s admissions.

 

Application to hold the hearing in private

 

22. The Registered Person invited the Committee to conduct the hearing in private. The application was made in private. She expressed concern about the consequences of a public determination on herself and her family.

 

23. The LQC, having invited submissions from the Presenter, stated on the public record that the default position is that hearings shall be heard in public unless it is in the interest of justice that the entire hearing or part of the hearing should be heard in private. The LQC advised that matters that should be heard in private include health matters and highly sensitive personal matters. The LQC stated that the issue would be kept under review. The LQC noted that there were no public observers and stated that the Committee would give consideration to the issue of privacy when drafting the public determination.

 

Decision on Unacceptable Professional Conduct (UPC)

 

The Committee’s Approach

24. The LQC advised that whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment and there is no burden or standard of proof.

 

25. UPC is defined as conduct which falls short of the standard required of a registered person. In reaching its findings on UPC, 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 give rise to disciplinary proceedings or a finding of UPC. Architects are expected to be guided by the spirit of the Code as well as its express terms.

 

26. In deciding whether the facts found proved amount to UPC the Committee had regard to Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It bore in mind in reaching its decision 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” was required. The Committee also took into account the observation made by Mr Justice Kerr in Shaw v The General Osteopathic Council [2015] EWHC 2721 (Admin) that although the conduct in question must be sufficiently serious, it does not need to be of such gravity that imposing an admonishment would be too lenient.

 

Findings of UPC

 

27. The Committee noted that the Registered Person admitted at the outset of the hearing that she had sought to enter into an agreement which was intended to prevent the Referrer from submitting or proceeding with a complaint to the ARB and she accepted that these actions demonstrated a lack of integrity. The Registered Person was the co-owner and Co-Director of HLL and knew or ought to have known that Standard 9.5 of the Architects Code: Standards of Professional Conduct and Practice (‘the Standards’) states:

 

“You should not enter into any agreement the terms of which would prevent any party from reporting an apparent breach of the Code to ARB.”

 

28. The Committee also noted that Standard 1.1 states:

 

“You are expected at all times to act with…integrity and to avoid any actions or situations which are inconsistent with your professional obligations. …”

 

29. The Committee concluded that the admitted facts and the corresponding breaches of the Code are sufficiently serious to adversely impact both on the reputation of the Registered Person and the profession generally. The Registered Person has a professional duty to ensure that Referrers are not prevented from reporting a breach of the Code. It is fundamental to professional conduct and professional work as a registered Architect that when things go wrong, the ARB is able to fulfil its public protection duties by assessing the nature and seriousness of complaints. The Committee, in concluding that the Registered Person’s conduct fell below the standard expected of a registered Architect, noted that the Registered Person (and Mr Butterfield-Groves) are the beneficiaries of the SDR and the sole purpose of section 4 of the SDR is to protect her from any further complaints being made to the ARB.

 

30. The Committee was mindful a lack of integrity is not synonymous with dishonesty. A lack of integrity was described in Wingate & Evans v SRA; SRA v Malins, [2018] EWCA Civ 366, in the following terms: “In professional codes of conduct, the term “integrity” is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members…The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards.” The Committee concluded that the public are entitled to expect registered Architects to act with integrity at all times and that any failure to do so has the potential to bring the profession into disrepute.

 

31. The Committee concluded that it was the cumulative effect of section 4 of the SDR and the Registered Person’s lack of integrity that crossed the threshold of UPC.

 

32. The Committee also took into account the wider public interest, which includes the maintenance of public trust and confidence and the declaring and upholding of professional standards. The Committee concluded that if there was no finding of UPC it would undermine rather than uphold public trust and confidence in the professional standards of Architects.

 

Decision on Sanction

 

33. The Registered Person chose to give oral evidence with respect to sanction. She relied on her mitigation statement in which she stated that the breach of the Code was limited to a unique set of circumstances and there is no likely risk of harm to clients/and or the wider public. She expressed regret and remorse and stated, “In all my future practices as an architect I would ensure that I specifically referenced (sic) the code of conduct at all times, no matter how stressful or serious the situation/project/circumstance to ensure that I am not breaching the code.”

 

34. The Registered Person also relied on a statement from Mr Butterfield-Groves and character references from Mr T and Mr M. Mr T describes the Registered Person as “honest and trustworthy” and Mr M states that she is “honest and reliable, both personally and professionally”. The statement of Mr Butterfield-Groves and the testimonials from Mr T and Mr M all refer to the significant pressure that the Registered Person was under at the time of the SDR agreement.

 

The Committee’s Approach

 

35. The Committee took into account the oral evidence of the Registered Person, the documentary evidence in support of her mitigating circumstances, and the submissions from both parties.

 

36. The Presenter did not make a “bid” for any particular sanction and acknowledged that there is no requirement to impose a sanction in every case. He submitted that there were no aggravating factors and identified a number of matters that could be characterised as mitigating factors.

 

37. The Registered Person’s primary submission was that no sanction should be imposed. However, in the event that the Committee rejected her primary submission, she invited the Committee to conclude that there was no need to impose any sanction more onerous than a Reprimand.

 

38. The Committee took into account the Sanctions Guidance. The Committee was mindful that the purpose of any sanction is not to punish the Architect but to protect the public and the wider public interest. The public interest includes upholding public confidence in the profession and declaring and upholding proper standards of conduct and competence.

 

39. The Committee applied the principle of proportionality by taking into account the aggravating and mitigating factors, weighing the Registered Person’s interests with the public interest, and considering the available sanctions in ascending order of severity.

 

Decision

 

40. The Committee noted that the Registered Person had engaged with the regulatory process and had taken the opportunity to present her mitigating evidence in a way that would be most helpful to the Committee. The Committee acknowledged these features but concluded that they could not be properly characterised as mitigating factors as there is an expectation that registered Architects will cooperate with the ARB both in relation to the investigation and the ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the register.

 

41. The Committee concluded that the mitigating factors are as follows:

i. The Registered Person has demonstrated some evidence of insight which the Committee accepted as genuine. The Registered Person demonstrated that she had some understanding of what went wrong and acknowledged that she should have acted differently, and it was clear during her oral evidence that these proceedings had had a profound effect on her. In these circumstances, the Committee concluded that the conduct which led to the findings of UPC were unlikely to be repeated.

ii. The Registered Person expressed remorse and demonstrated that she had reflected on how to ensure that her actions which led to the finding of UPC would not be repeated.

iii. There was no dispute between the parties that the professional relationship between the Registered Person and the Referrer had broken down irretrievably and the Committee accepted that this had caused the Registered Person a significant amount of stress. The Committee acknowledged that the Registered Person’s error of judgment, in permitting the SDR to include a clause that breached the Code, occurred within this context.

iv. The Committee was provided with positive evidence of good character.

 

42. The Committee concluded that the only aggravating factor was the Registered Person’s previous disciplinary history. The Committee noted that the previous disciplinary finding related to the Registered Person’s competence rather than conduct and was therefore very different from the findings made by this Committee. The Committee also noted that the previous proceedings did not result in a sanction. However, the Committee took the view that any previous disciplinary history is a matter of concern as there is an expectation that all registered Architects will adhere to the high standards expected of them at all times and will be vigilant in ensuring that there are no further breaches of the Code.

 

No Sanction

 

43. The Committee first considered whether to conclude the case by taking no action on the Registered Person’s registration. In doing so, the Committee paid particular attention to paragraph 6.1.2 of the Committee Sanctions Guidance which states:

 

“In rare cases the PCC may conclude, having had regard to all the circumstances, that the level of seriousness of the architect’s conduct or incompetence is so low that it would be unfair or disproportionate to impose a sanction. Where the PCC has determined a sanction is not required, it is particularly important that it is clear in its written reasons as to the exceptional circumstances that justified imposing no sanction.”

 

44. Exceptional circumstances are unusual, special, or uncommon. The Committee determined that it was not uncommon for disputes to develop during a project and on occasion such disputes may prove to be irreconcilable for various reasons. Nonetheless, registered Architects are expected to act professionally at all times and despite the additional stressors continue to comply with the express terms as set out in the Code. To conclude otherwise would serve to undermine rather than uphold the Committee’s regulatory duty to protect the public, maintain public confidence in the profession, and uphold proper professional standards and conduct for members of the profession. Whilst the Committee acknowledged that the Registered Person made an error of judgment within the context of a stressful situation, it was not provided with any evidence to indicate that the circumstances could be properly described as exceptional.

 

45. The Committee determined that as there are no exceptional circumstances in this case, the finding of UPC alone would not be sufficient, proportionate, or in the public interest. In reaching this conclusion the Committee was mindful that the Registered Person’s failings diminish both her reputation and that of the profession generally. The Committee therefore concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction.

 

Reprimand

 

46. The Committee considered whether to impose a Reprimand. The Committee took into account the non-exhaustive factors as set out in paragraph 6.2.2 of the Committee Sanctions Guide, which indicate when a Reprimand may be the appropriate and proportionate sanction.

 

47. The Committee noted that although there was an attempt to prevent the Referrer from submitting or proceeding with a complaint to the ARB there was no evidence before the Committee that the wider public had been affected by her conduct. There was some evidence of genuine insight and remorse and where it was possible for the Registered Person to take corrective action by reflecting on her behaviour she had done so. It was also clear that although the Registered Person had demonstrated poor judgment it related to a single project and a dispute with a professional contractor within the context of a financial dispute. There was no evidence before the Committee that the Registered Person had from the outset sought to circumvent Standard 9.5 and it was clear that she held a genuine belief that she had been wronged. The Committee, having carefully considered these features, determined that a Reprimand would be an appropriate and proportionate disciplinary response.

 

48. Before reaching a conclusive decision, the Committee considered whether imposing a Penalty Order would be appropriate. The Committee considered whether the imposition of a Penalty Order would serve as an effective reinforcement of the importance of complying with Standard 9.5 and acting with integrity at all times. However, the Committee determined that, in the circumstances of this case, a financial penalty would add nothing of materiality to the significance of public censure in the form of a Reprimand. Further, there was no evidence before the Committee that the Registered Person derived a financial benefit from her conduct, and in the view of the Committee, the seriousness of her failings could be adequately addressed by the imposition of a Reprimand.

 

49. Accordingly, the Committee was satisfied that the Registered Person should be reprimanded for her conduct. The Reprimand will remain on the Registered Person’s record and will be published on ARB’s website for one year from the date of this determination.