THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

ALAN FRANCIS PHILLIPS (044107D)

Held via video conference on

4-12 December 2023

 and

26 February – 1 March 2024

______________

Present:

Martin Winter (Chair)
David Kann (PCC Architect Member)
Alastair Cannon (PCC Lay Member)

_______________

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

Professor Alan Phillips (“the Registered Person”) attended the hearing and was not represented.

The Professional Conduct Committee (“the Committee”) determined that the Registered Person is guilty of Unacceptable Professional Conduct (“UPC”).  It did so, having found the following particulars of the Allegation proved: Allegation 1) 1.1 The Registered Person failed to provide an adequate terms of engagement document in compliance with standard 4.4  1.2 The Registered Person failed to carry out his duties as CA appropriately and/or failed to adequately advise his client on the key requirement to have a CA in place for a JCT MW form of contract  1.3 The Registered Person failed to advise his client on the appropriate form of contract and/or complete the JCT MW 11 form of contract adequately   Allegation 2) 2.1 The Registered Person did not provide adequate terms of engagement to the Referrer contrary to standard 4.4 of the architects code The sanction imposed by the Committee is a £2,500 penalty order.

Admissions

1. Allegations 1.1 and 2.1 were admitted and found proved.

Background

 

2. The allegation of UPC follows two separate referrals to ARB by Referrer 2, Mr Howard and Referrer 1, Ms Morelli. The allegations are not connected to each other save that they both complained against the Registered Person. At a Case Management Meeting on 6 October 2023 the cases were joined with the agreement of all parties.

 

3. Allegation 1 (“the Mr Howard case”) relates to the engagement of the Registered Person by Mr Howard in his capacity as a director of Putenson Ltd, a family business, in 2014. Mr Howard had purchased a plot of land with pre-existing drawings prepared by the Registered Person showing development potential. In July 2014 Mr Howard contacted the Registered Person and instructed him in the ongoing development of the site. It is Mr Howard’s position that the Registered Person was retained as the Contract Administrator. The Registered Person disputes this.

 

4. The Registered Person produced a JCT Minor Works Building Contract 2011 (the JCT MW contract) appointing Mr Fry as the contractor. The contract was signed on 2 October 2015. The contract is exhibited as Exhibit 1.

 

5. Mr Howard states that the Registered Person sourced a quantity surveyor (QS), Mr Smith, who provided a cost estimate of £326,000 to complete the project. The contractor quoted a fixed sum of £250,000 and Mr Howard was happy to agree that amount.

 

6. Before the contract was signed in October 2015 work had begun in relation to the substructure. Foundation works were completed between July 2015 and October 2015. Problems arose during this phase of the development such that the substructure works were not completed until June 2016 at a cost to date of £248,435. Mr Howard continued with the contractor with cost eventually amounting to £423,202.

 

7. Litigation commenced between Mr Howard and the contractor and in an adjudication in 2019 matters were found in favour of the Referrer and an assessment of overpayment in the sum of £196,757. During those proceedings the Registered Person was invited to participate in mediation between Mr Howard and the contractor in his capacity of project manager. The Registered Person stated that he was neither project manager nor contract administrator for the works.

 

8. Mr Howard complained to ARB on 23 February 2021 (exhibit 20).

 

9. ARB instructed James Armstrong to provide a report as independent Inquirer. Mr Armstrong refers to Article 3 of the contract which relates to the role of architect and contract administrator. Mr Armstrong highlights that the Registered Person has named himself in that section of the contract. Although the words contract administrator had been deleted, this did not mean that the Registered Person had not taken on responsibility for the duties of contract administrator but that he, as the architect, would undertake these duties.

 

10. Armstrong further states that having completed the contract documents and having undertaken some of the duties of the contract administrator, that the Registered Person had assumed the role of contract administrator. However, having assumed that role, the Registered Person failed to perform many of the duties of contract administrator and this fell below the standards expected of a reasonably competent architect and that this failing was to a “significant extent”.

 

11. Further, Mr Armstrong explains that the Registered Person was wrong to advise the use of a JCT Minor Works contract as it was ill-suited to the nature of the development. He also asserts that several areas of the contract were completed inaccurately, most significantly by omitting the need to comply with the CDM regulations exposing Mr Howard to significant health and safety risks. Mr Armstrong assets that the actions of the Registered Person in this regard fell below the standard expected of a reasonably competent architect to a significant extent.

 

12. The Registered Person responded to the allegations during the investigation conducted by ARB. He disputed taking on the role of contract administrator and stated that his involvement was limited to that of architect during the planning phase. He denied providing anything other than ad hoc technical input. He stated that on 6 August 2014 his colleague provided the terms of engagement and that these were clear and unequivocal.

 

13. The Registered Person stated that Mr Howard had already decided to appoint Mr Fry as the main contractor prior to his instruction. He accepted that he drew up the contract but that he had agreed with Mr Howard that he would provide limited technical input during the construction phase and post contract. He stated that Mr Howard had retained Mr Smith to carry out all aspects of valuations, interim certificates etc. In effect, he stated that the role of contract administrator was delegated to Mr Smith or, in part, to the main contractor, Mr Fry.

 

14. The Registered Person relied upon a witness statement of the contractor which confirms that the Registered Person was not appointed as the contract administrator but that Mr Smith, a chartered quantity surveyor, produced valuations for Mr Howard. Mr Howard did not wish to incur the cost associated with appointing a contract administrator.

 

15. The Registered Person highlighted that he was not joined in the litigation brought by Mr Howard against the main contractor and that he was not criticised during the litigation.

 

16. The Registered Person asserted that his e-mail dated 17 September 2014 comprises the terms and conditions and accepts that this written agreement did not fulfil the requirements of Standard 4.4 of the code.

 

17. Allegation 2 (“the Morelli case”) relates to a complaint made by Ms Morelli.

 

18. From 2015 until 2018 Ms Morelli had worked with the Registered Person on three other projects. In September 2018 Ms Morelli was considering buying a plot of land in order to develop a home for her own use in retirement. The site had outline planning permission. Ms Morelli and the Registered Person attended the site together on 10 September 2018.

 

19. Ms Morelli asserts that she advised the Registered Person that she had a strict budget of £300,000. Ms Morelli states that the Registered Person confirmed that the budget was achievable and the site was purchased with completion in January 2019.

 

20. Ms Morelli states that in September 2018 the Registered Person was provided with a topographical survey demonstrating that the site was not level. Between December 2018 and January 2019 the Registered Person provided plans with which Ms Morelli was generally content, although she states she had some reservations regarding how the proposed building would sit on the uneven site.

 

21. On 14 February 2019 the Registered Person submitted the planning application to Brighton and Hove council (the council). Planning permission was granted on 20 June 2019.

 

22. At a point prior to planning permission being granted Ms Morelli had decided that she did not wish to work with the Registered Person and instructed a new architect, Ecotecture. Ms Morelli showed the new architect the existing designs prepared by the Registered Person. On 5 July 2019 Ms Morelli attended at the Registered Person’s office to discuss the project and it was at this meeting that Ms Morelli explained that she was instructing a different architect.

 

23. Ecotecture prepared a 3-dimensional model of the proposed build based on the Registered Person’s plans. This demonstrated that the existing plans did not work in relation to the ground levels. Ms Morelli was advised that the new architect would need to start from scratch. Ms Morelli contacted the Registered Person to request a refund of the cost of the plans and the submission of the planning application. The Registered Person responded by refuting the claim against him.

 

24. At the suggestion of the new architect a chartered quantity surveyor, Mr Smith (coincidentally, the same surveyor involved in the Mr Howard case), was instructed to produce a report based on the Registered Person’s design. He estimated that the total cost of the proposed works would be £432,000. Mr Smith also produced an estimate based on the new architect’s plans of £358,000.

 

25. Ms Morelli made a formal complaint to ARB in December 2019.

 

26. ARB instructed James Armstrong to provide a report as independent Inquirer. Mr Armstrong described the Registered Person’s figures as “very optimistic even for standard site conditions”. He stated that the site was far from being standard in light of the considerable level differences highlighted by the topographical survey. Specifically, Mr Armstrong states that the Registered Person was wrong in estimating the ground works at a cost of £40,000.

 

27. Mr Armstrong also noted that the cost estimate provided by Mr Smith had no input from the Registered Person and must have been based on a number of assumptions. Even so, Mr Armstrong considered that the Registered Persons proposal was probably unachievable.

 

28. The Registered Person responded to ARB during the course of the investigation stating that Ms Morelli was familiar with his terms and conditions because of the previous projects they had worked on together. However, he accepted that he had produced his terms and conditions in a more relaxed and informal manner than is normal for the practise. He explained that he regretted his misinterpretation of standard 4.4.

 

29. The Registered Person stated that the quantity surveyor’s costings were an estimate based on inadequate and incomplete information. He stated that he was confident that the budget of £300,000 could be met.

 

Findings of Fact

 

30. The Committee rules, as amended, make it clear that the burden of proof at the fact-finding stage of this hearing is on the ARB. So, it is for the ARB to prove the factual particulars set out in the allegation. It is not for the Registered Person to disprove them. The fact that the Registered Person chose to give evidence does not shift the burden onto him, it remains throughout on the ARB at the fact-finding stage. ARB has to prove the charges on the balance of probabilities, the standard of proof is the standard used in civil proceedings in courts in England and Wales.

 

31. The Committee took into account the established case law that the more serious the charge is then it is inherently less likely to have been committed so the evidence needed to prove it must be more cogent.

 

Evidence of Mr Howard

 

32. Mr Howard adopted his statement as his evidence. He stated that the building plot was purchased and that Mr Fry was to be used to develop the existing designs previously prepared by the Registered Person. In August 2014 he met the Registered Person for the first time. He had little previous experience of property development,  nor did any other directors, and he required a great deal of guidance. The Registered Person stated that he had been engaged for 3 years on this project and wanted to be involved. He provided a video from the TV show “Grand Designs” showing one of the Registered Person’s previous projects. Mr Howard and his colleagues agreed to engage the Registered Person.

 

33. The Registered Person was instructed to act for Mr Howard. When the contract was drawn up, he was appointed as contract administrator. There was an email that followed. The Registered Person found a quantity surveyor, Mr Smith.

 

34. In October 2015 there was a meeting during which the contract was drawn up. Mr Howard argued for £100 per day for liquidated damages, but Mr Howard trusted the contractor who was a family friend. Mr Howard states that he relied upon the information from the quantity surveyor, contractor and Registered Person.

 

35. The Registered Person kept the contract in his office until Mr Howard asked for it. The suggestion of the Registered Person was that the contract need not be referred to again during the project. The whole process was unfamiliar to Mr Howard. Mr Howard had the impression that the Registered Person would guide them from start to finish. This was understood to be overseeing the project as that was in the contract and the Registered Person said so. Mr Howard and his colleagues all worked full time and they relied on the professionals to do the build.

 

36. By June 2016 the groundworks were completed. Mr Smith was engaged to survey the site and Mr W was appointed by Mr Howard to assist for party wall issues. The Registered Person advised not to pay Mr W after the site was closed down. The Registered Person was involved in other disputes and was heavily relied upon by Mr Howard.

 

37. Mr Howard used the Registered Person to mediate a dispute between him and a contractor. The project was run by the Registered Person alongside Mr Fry. The Registered Person wrote to neighbours after the excavation process was responsible for causing damage to a neighbour. Compensation was offered to the neighbours.

 

38. By September 2016 Mr Howard felt that he was financially committed to carrying on with the project. The Registered Person mentioned that a different contractor should be used. No one wanted to take on the contract so Mr Howard felt compelled to carry on with Mr Fry. An audit was commissioned to assess the viability of the overall project.

 

39. The building process was ongoing between October 2016 until December 2017 when it was completed. On 18 December 2017 a meeting was held on site with the Registered Person and Mr Fry. The Registered Person handed over a pack containing warranties, the property could then be put on the market. It was rented out and defects were then identified. There was litigation between Mr Howard and the contractor. The Registered Person was in attendance at a mediation meeting but left before the end.

 

40. Mr Howard made his complaint to ARB on 23 February 2021.

 

41. In cross-examination by the Registered Person, Mr Howard confirmed that after buying the site he met with the Registered Person and asked about the planning process and the process of preparing construction drawings. Mr Howard confirmed that the Registered Person recommended instructing Mr Smith who then prepared a preliminary cost plan. Having agreed that budget, a contract was entered into. Mr Howard asserted that the Registered Person was the contract administrator. The Registered Person accepted whilst questioning Mr Howard that he was contract administrator, but for the building of the house only.

 

42. The Referrer disagreed that the parties at the contract signing all agreed that the contract was for the house only. Mr Howard stated that the cost for substructure was included in the contract. Mr Howard did not agree that there were separate contracts at that time for other works. The piling works did have a later separate contract that Mr Howard states the Registered Person approved that contract.

 

43. The groundworks also had no separate contract. Mr Howard maintained that there was only one contract. The Registered Person suggested to the witness that the High Court proceedings had resolved that there were three separate contracts, not one.

 

44. Mr Howard confirmed that there were High Court proceedings but stated that there was no finding that there was more than one contract as the matter could not be resolved by the Judge and that the Judge had wanted the Registered Person to be in court. Mr Howard stated that £500 per month was the agreed fee for the Registered Person acting as contract administrator.

 

45. Mr Howard agreed that on 21 November 2022 he sent the Registered Person an email. It was put by the Registered Person that it amounted to a threat. Mr Howard agreed that he intends to carry out the actions contained in the email which included publicising any adverse finding at the conclusion of the ARB hearing and he confirmed that he is preparing a legal case against the Registered Person.

 

46. Mr Howard did not accept the suggestion that the Registered Person helped him without payment and stated that the problems that the Registered Person assisted with only arose due to the Registered Person not managing the site alongside the contractor. Mr Howard asserted that there was collusion between the other parties to cover-up their alleged negligence.

 

47. In answer to questions from the Committee, Mr Howard confirmed that prior to the signing of the contract there was no conversation about the role or purpose of a contract administrator. He had never seen a JCT contract before. He stated that the Registered Person advised the type of contract and told him that it was a contract that sealed everything together for the benefit of the Registered Person. Mr Howard only saw the contract again after asking for it from the Registered Person when litigation against the contractor commenced.

 

48. The piling contractor was paid by Mr Howard’s company, Putenson. It was meant to be deducted from the contract sum. He said the contractor never seemed to have sufficient funds to make the payment. The contractor would tell him when the payments were due or the piling contractor would send an invoice. The Registered Person was involved in this by approving the costs, but was not involved in any other way. The groundworks had not been completed prior to the signing of contracts.

 

49. Monthly valuations were provided after groundworks had been completed. Mr Smith was asked to visit the site and then monthly valuations started. Before then there had been no payment structure. At all times Mr Howard understood groundworks to be included in the JCT contract. All the images and drawings were initialled by Mr Howard and this was included in the contract that the Registered Person kept.

 

50. Mr Howard was sent monthly valuations from the quantity surveyor and this told him how much to pay the contractor. Mr Howard did not recall being sent a certificate, but recalls only a spreadsheet from the surveyor who told him how much to pay.

 

51. Evidence of Ms Morelli – Ms Morelli adopted her statement as her evidence. She confirmed that her budget of £300,000 was important as it formed the basis of what she was prepared to offer for the plot of land. She wanted to be sure that the total cost of the build would not exceed the final value of the built house.

 

52. She asserted that a meeting was requested with the Registered Person on a number of occasions as she did not fully understand how the property sat within the land. She was aware that difficult topography could increase costs. The budget remained at £300,000.

 

53. Throughout the entirety of the contract she states that there was no advice given by the Registered Person on the cost of the project. £260,000 was suggested as being sufficient for the house build and that the overall budget of £300,000 would be sufficient, taking into account the cost of groundwork.

 

54. Ms Morelli instructed another architect for a 3D plan and it became obvious that the Registered Person had not taken into consideration the difficulty of the topography. A new cost plan showed that the build would have been far in excess of her £300,000 budget.

 

55. The impact of the experience remains a “nightmare” but Ms Morelli stated that she is relieved that she did not continue instructing the Registered Person and describes the experience as being horrible and a “close shave”.

 

56. Ms Morelli was cross-examined by the Registered Person. Ms Morelli agreed that she had a positive, professional relationship with the Registered Person in previous developments including successfully taking a matter to a planning appeal.

 

57. Ms Morelli agreed that there was more than one meeting and less than 20 meetings about the development of the property. The Registered Person knew the site well from familiarity with the area. This was a benefit that encouraged Ms Morelli to use the Registered Person as architect before purchasing the site.

 

58. Ms Morelli agreed to the suggestion that there were 7 iterations of the development plan. The first was too large for the site, even though it was very beautiful and would have been very costly. The different iterations did not change the budget that was available.

 

59. The planning application process started and Ms Morelli accepted that she instructed Ecostructure around 19 July 2019. Ms Morelli could recall forms being signed with that architect. Mr Smith was appointed as the quantity surveyor and BLB Engineers were appointed after Ecostructure were appointed. The Registered Person’s plans were passed to the new architect and they were asked for a 3D model. This was due to the Registered Person not producing a 3D model, despite requests. It was suggested by the Registered Person that the new architect did not contact the Registered Person, but Ms Morelli did not know about that.

 

60. Ms Morelli did not know what information Mr Smith and BLB Engineers had been provided. Ms Morelli had not been given a cost plan by the Registered Person, save for an assurance that it could be done for £300,000. Ms Morelli insisted that it was a strict budget, but admitted that she agreed a higher budget later with her new architect of £358,000. The difference was described by Ms Morelli as a “slight increase”.

 

61. Ms Morelli denied instructing her new architects and engineers to not talk to the Registered Person. Ms Morelli stated that the Registered Person was obstructive after the instruction of the new architect. Ms Morelli found the content of the emails from the Registered Person to be threatening.

 

62. Ms Morelli agreed that the groundworks could not be costed without a site investigation. Ms Morelli confirmed that the new architect did conduct a site investigation alongside the engineers prior to making detailed design plans prior to planning application. The site had a chalk base and some large trees that also affected the planning designs.

 

63. Ms Morelli agreed that she paid the fees of the Registered Person as she did not have information regarding what she considered to be the problems with his design at that time. The agreement was that the final payment should be paid after planning had been agreed. It was after that point that Ms Morelli discovered that his design would not work on the site.

 

64. In re-examination, Ms Morelli confirmed that she made payment shortly after the Registered Person’s planning application had been granted. Ecotecture had been contacted due to concerns that had been growing and after a chance meeting in the area between Ms Morelli and the owner of a property called Naked House, a property the Registered Person had been involved with. Eventually there was a meeting on 5 July 2019 when the Registered Person was sacked which prompted his email of 7 July 2019.

 

65. The ARB Inquirer, James Armstrong, gave evidence and adopted his two reports as his evidence. The first dated 16 October 2023 concerning Mr Howard. He had reviewed the defence bundle and did not wish to change his reports.

 

66. The Inquirer referred to the deletion in Article 3 of the contract. He confirmed that if the contract administrator is an architect, then that is the term that applies. However, the obligations under the JCT MW contract are the same for either contact administrator or architect.

 

67. The Inquirer noted that the Registered Person had, in cross examination of Mr Howard, accepted that he was contract administrator. The Inquirer thought that the Registered Person was confused about this role.

 

68. As regards the type of contract that was appropriate for the project, the Inquirer stood by his conclusion set out in his report.

 

69. The second report (also dated 23 October 2023) related to Ms Morelli. The Inquirer maintained that he stood by the content of that report and made no changes to it. The Inquirer has considered the report of Mr Severs, a practising architect and an acquaintance of the Registered Person, and has met with Mr Severs. There were no areas of agreement in relation to the matters in dispute that were raised during that meeting.

 

The Registered Person cross examined Mr Armstrong about the Mr Howard matter (allegation 1)

 

70. In answer to questions from the Registered Person, the Inquirer maintained that the contract was inappropriate. It was suggested to the Inquirer that the JCT MW contract was suitable for the project. Although the Inquirer accepted that it was a small project, he asserted that there were other factors that suggested that it was not simple and the JCT MW was not appropriate.

 

71. The Inquirer was asked whether there were 3 contracts for the project, not one, and that the house build would have taken place after the groundworks were completed and, therefore, that the project would have been simpler. The Inquirer stated that it was not Mr Howard’s position that there was more than one contract, but he could see that the project would have been simpler once the groundworks were complete and in that circumstance the JCT MW contract could have been appropriate.

 

72. The Inquirer was aware that Mr Smith’s later valuation took place after the groundworks, foundations and piling had been completed and the house was in the process of being built. He agreed that Mr Smith was taking on one aspect of the role of the contract administrator when providing periodic cost information. The Inquirer agreed that the architect takes on all the roles of the contract administrator when striking out “CA” in the terms of the contract. The Inquirer did not accept that the duties of the contract administrator can be shared but stated that advice can be sought from others and if this is done properly then an architect can fulfil their role as contract administrator in this way.

 

73. The Inquirer stated that the architect would need to check the interim certificates and review the standard of work. If there were difficulties with the employer that frustrated the duties of the contract administrator, these should be addressed in writing and ultimately the contract administrator might have to consider resigning. The Inquirer accepted that frequent meetings with the contactor would assist the overall project.

 

              The Registered Person cross examined Mr Armstrong about the Ms Morelli matter (allegation 2)

 

74. On being questioned regarding the Ms Morelli matter the Inquirer agreed that there is a RIBA Standard Form of Agreement for the Appointment of an Architect, but the Registered Person had in the email of 13 September 2018 referred to “Standard Form for the Appointment of an Architect”, a slightly different form of words.

 

75. The Inquirer was asked about his understanding of the term “groundworks”, it was suggested that retaining walls do not form a part of groundworks. The Inquirer disagreed with this assertion. He asserted that groundworks related to work in preparing the ground and below the surface.

 

76. The Registered Person referred to site works and sub-structure being described in Mr Smith’s cost as being part of groundworks.

 

77. The Inquirer stated that Mr Smith’s cost plan was relied upon. He agreed that there was limited information provided to Mr Smith.

 

78. The Inquirer agreed that Mr Smith did not consult with the Registered Person in the cost estimate and that Mr Smith would have made some assumptions about the method of build.

 

79. The Inquirer had looked at the engineer’s designs for the retaining wall. He agreed that the designs had assumed the presence of soft ground, not rock chalk. The Inquirer assumed that the design of the retaining wall was by an experienced engineer and it was assumed they had knowledge of the site conditions.

 

              Mr Foxsmith re-examined Mr Armstrong about the Mr Howard matter (Allegation 1)

 

80. In re-examination on the Mr Howard matter, the Inquirer confirmed that he had seen no evidence of more than one contract document. He confirmed that more than 400 documents had been referred to during the investigation. If there were more than one contract, as contact administrator the Registered Person would need to have an understanding of the interconnection of the various contracts before advising on the final choice of contract.

 

Mr Foxsmith re-examined Mr Armstrong about the Ms Morelli matter (Allegation 2)

 

81. In relation to the Ms Morelli project, the email of 13^th September 2018 from the Registered Person refers to a copy of the RIBA document being sent to Ms Morelli. It was the Inquirer’s understanding that it was not sent to Ms Morelli.

 

82. The Inquirer stated that the definition of “groundwork” can be found in the National Building Specification. It was defined by the Inquirer as “work in the ground”.

 

              Questions from the Committee about the Mr Howard matter (Allegation 1)

 

83. The Committee asked the Inquirer further questions. The Inquirer confirmed that Articles 4 and 5 of the contract were, in fact, correctly completed by the Registered Person and that his criticisms are no longer applicable and he withdrew them.

 

84. The Committee asked about the nomination of the Registered Person as CDM coordinator and whether there could be more than one. The Inquirer was certain that there can only ever be one at a time, but if the previous contract had ended before the next started then each contract could be different. The extent of the work that had started before the contract was signed in October 2015 was unclear in the view of the Inquirer. At the end of each project the Health and Safety File would need to have been completed, for example piling drawings and residual risks, that should have been passed to the new CDM Coordinator. There was no evidence of these documents.

 

85. In respect of the role of contract administrator, the Inquirer would have expected to see practical completion certificates at the conclusion of each contract for the next contract administrator to take possession of. The Inquirer had not seen any evidence of these documents. This also suggested the existence of only one contract.

 

86. The Inquirer was clear that it was the Registered Person who was the contract administrator as he completed Article 3 to name himself as contract administrator.

 

87. The JCT MW contract was explored and the Inquirer was asked how the contract could reflect additional works or cross-referencing to other contracts. The Inquirer confirmed that the JCT MW contract could have run after completion of any other contracts.

 

88. The reference to “…and ancillary works” in the first recital of the contract was discussed. The Inquirer speculated that it might be the piling works, but he had no evidence what it related to. The reference to an “attached bundle” was noted, but the bundle did not accompany the instructions he had received.

 

89. The definition of “groundworks” was investigated as to whether there are different definitions in different areas of construction industry. The Inquirer agreed that the definitions could be different across industries. He acknowledged that his definition differed from that of the Registered Person and both differed from the interpretation of Mr Smith.

 

              Questions from the Committee about the Ms Morelli matter (Allegation 2)

 

90. The retaining wall in in the Ms Morelli matter was discussed. The Inquirer was asked about what innovative design or value engineering exist that might have been suitable for the site. He agreed that there were a number of different options. In this case the site was very confined so the best option was the one with the least excavation. Other options would be to use blockwork, but this would involve a greater mass unsuitable for a small site. The Inquirer agreed that the options suggested by the Registered Person would be feasible and that such options might have been at a lower cost, even with design changes.

 

91. When asked about the allegation 2.2 and the “adequacy” of the cost advice relating to the groundworks the Inquirer confirmed his view that the Registered Person was under a duty to be informed of any concerns when taking a broad-brush approach based on personal experience. His view was that the site had obvious cost “in the ground” in terms of a retaining wall. The Registered Person ought to have suggested the appointment of a surveyor earlier in the project. But, if the Registered Person was confident of costs, then there would be no duty to raise any concerns.

 

92. The Inquirer was asked about the Registered Person’s reaction to queries raised by Ms Morelli. There was a specific request about the size and shape of the design and a request about whether the budget could be met. The Inquirer understood that there was no response by the Registered Person to Ms Morelli. His view was that the Registered Person should have provided greater reassurance if he was confident that he could maintain the budget for the development. This could include a suggestion of getting a quantity surveyor involved to resolve any doubt.

 

93. Evidence of Mr Smith – Mr Smith adopted his statement dated 30 September 2020. No corrections or additions were required to be made.

 

94. Mr Smith confirmed that he was instructed to carry out an initial estimate of cost based on the information available at that time. There was limited information for the Ms Morelli site. He had drawings from the Registered Person. He had further discussions with Ms Morelli to determine the level of internal fittings and heating. There were BLB Engineering sketch drawings that assisted with structure and sub-structure. This site had topographical issues due the slope of the land. The witness also visited the site with the engineer.

 

95. Mr Smith prepared an initial cost plan in April 2019. This lists the factors considered. There was a later revised cost plan in December 2019 that was prepared in light of the Ecostructure plans. This plan accepted a margin of error of 10%. The cost per square metre was high in this project due to the topography requiring excavation and the building of a retaining wall. The Ecostructure plan was less expensive as it was single storey, not two-storey, and required less excavation.

 

              The Registered Person cross examined Mr Smith about the Ms Morelli matter (Allegation 2)

 

96. In cross-examination Mr Smith confirmed that he had worked with the Registered Person for 20 years or more with a positive relationship, at least until “some time ago”. Mr Smith stated that he was appointed as quantity surveyor in April 2019. The drawing made by the Registered Person was provided to him by Ms Morelli, not the Registered Person. He confirmed that he did not know that there were further amendments to the drawing before the final submission for planning permission. Mr Smith confirmed that he did not liaise with the Registered Person before preparing the initial cost estimate. He confirmed that as Ms Morelli was at that time no longer instructing the Registered Person and that the matter was “acrimonious” that he decided not to contact the Registered Person. In hindsight, Mr Smith stated that it was possibly better that he had contacted the Registered Person. He did not look at the final planning drawings and only used the Registered Person’s drawings produced to him by Ms Morelli. He was aware some 3 years ago of there being other drawings for the site, but he has not seen them nor has he been asked to review them. He could not recall how he discovered this. It coincided with his being told of potential disciplinary proceedings before ARB.

 

97. Mr Smith accepted that the preferred method of construction was not discussed and this might have affected his view of the sub-structure. He confirmed that he used the BLB drawings. He conceded that he did not know what the cost estimate would have been had he seen the final planning drawings.

 

98. In respect of the allegation concerning the adequacy of groundwork costs, Mr Smith understood “groundworks” to include any parts of the building “in direct contact with the ground”. This would include foundations, retaining walls and piles beneath the building. The heading “Site Works” included items that were necessary for the building but not connected to the building itself. The site works operations are broken down, but are not the same as groundworks. Mr Smith stated that substructure is part of groundworks. Trenchwork is necessary for foundations, so is groundworks. Some elements of site works can be groundworks also. Mr Smith stated that the use of the term “groundworks” is confusing and he prefers not to use it. He uses “site works” and “substructure” to define the concept.

 

99. In respect of the Ms Morelli case, Mr Smith agreed that cost figures should be based on correct drawings, not incorrect drawings. He didn’t know why he had not been provided with the correct drawings by Ms Morelli. Mr Smith agreed that by paring down the size and specification that the cost would have been affected but he could not say by how much.

 

              The Registered Person cross examined Mr Smith about the Mr Howard matter (Allegation 1)

 

100. The Registered Person then questioned Mr Smith about his role in the Mr Howard project (Allegation 1). The Committee noted that the statement of Mr Smith did not include any reference to that project and it had not been mentioned in his evidence in chief. The Committee Chair asked if ARB had any objections to questions being put. Mr Foxsmith was content that the Mr Howard case could be put to the witness, but objected to the production of the statement of Mr Fry that the Registered Person wished to use in cross-examination. The Registered Person was content to put matters to the witness without producing the statement.

 

101. The SPONS guidance booklet and SMM7 code of procedure were presented by the Registered Person for inclusion in the case as these documents included a definition of “groundworks”. The ARB agreed that it ought to be adduced in evidence and that the various definitions could be put to the witness. ARB also wished to put the National Building Specification (NBS) groundwork definition of groundwork. The Registered Person was content for this evidence to be adduced also. Rules 19 and 20 are relevant to the admission of new evidence. There was no unfairness to either party and so the admission of these new documents was allowed.

 

102. The documents are as follows;

 

i. SPONS Architects and Builders Price Book 2018 extract (Exhibit F1)

ii. SMM7 Measurement Code extract (A Code of Procedure for Measurement and Building Works) (Exhibit F2)

iii. National Building Specification extract (Exhibit F3) Groundworks on construction projects – Designing Buildings linked to the document that included a definition as follows;

 

103. Mr Smith refused to comment or answer any question in relation to the Mr Howard case as he feared potential litigation. He stated that he had received legal advice not to comment on the Mr Howard case following a legal letter from the solicitor for Mr Howard. The Registered Person expressed concern that he could not properly present his case if Mr Smith was unwilling to answer his questions. The Committee noted that there was no power to compel a witness to answer questions, but that the refusal would be noted and would be taken into consideration when determining the findings of fact.

 

104. In relation to the Mr Howard case, it was suggested that he was engaged in 2016 as a quantity surveyor by recommendation of the Registered Person. It was suggested that this was for the construction of a house only. The witness declined to answer.

 

105. The existence of the JCT contract in October 2015 was put to the witness and that the contract sum was based on Mr Smith’s £326,000 figure. The Registered Person suggested that the contract was pared down to £250,000, so that £70,000 was set aside for a separate groundwork contracts. Again, the witness declined to answer.

 

106. The Registered Person referred to the allegation that the form of contract was inappropriate and asked Mr Smith to comment. The witness declined to answer.

 

107. The Registered Person asked Mr Smith about his input into the contract and asserted that no drawings had accompanied the contract that had included groundworks. The witness declined to answer.

 

108. The Registered Person asserted that the contract was for a house only and excluded any groundworks. The witness declined to answer.

 

109. The Registered Person asked about the 9 valuations that were signed by the witness. He was asked if he recalled them. The witness declined to answer.

 

110. The Registered Person asked about arrangements between the contractor and the client, Mr Howard, that meant that invoices bypassed the Registered Person and that the Registered Person was not involved. The Registered Person asked if the witness could recall the contracts that Mr Howard entered into with sub-contractors that dealt with all groundworks. The Registered Person asked if the witness recalled his site visits or meetings with the Registered Person about the satisfactory nature of the works on site. He was asked about the preparation of a cost plan and his key involvement in the project and the information would not be answered. Mr Smith refused to answer all questions.

 

111. Mr Smith confirmed that the sharing of contract administrator duties is not normal as the contract sets out who is responsible to act as contract administrator. The duties can be shared, but with one person as contract administrator overseeing the duties. In such circumstances, the duties can be delegated to others.

 

112. Mr Smith confirmed that a 2-3 bedroom house can typically be built under a JCT MW contract. He also confirmed that the persons who might take on the duties of contract administrator (under supervision) could include the contractor or the quantity surveyor, for example. Also, specialists surveyors could be delegated to survey parts of a development within their area of expertise (for example, waterproofing). Also, where warranties applied, the warrantors might require a specialist surveyor to examine the quality of that aspect of the build.

 

113. Mr Smith denied that he had experience of clients that take over as contract administrator, but that they do often seek to influence the contractor. He confirmed that the building “team” includes many individuals and professionals. Mr Smith was accustomed to the Registered Person employing a team of specialists in such a way and his being a member of that team himself.

 

114. In re-examination by Mr Foxsmith, Mr Smith stated that he is an experienced quantity surveyor and when describing his knowledge of contract administrators he relies on his personal experience only. He agreed that architects either take on the role of contract administrator or advise clients to appoint one.

 

115. He also confirmed that a 2-3 bedroom house could be under a JCT MW contract or an Intermediate contract, depending on the complexity.

 

116. Mr Smith confirmed that, whatever the design of the building, the topography of the site meant that the groundworks would always require greater work with associated greater cost. He also confirmed that the JCT MW contract does not accommodate the inclusion of subcontractors.

 

117. The NBS definition of groundworks (exhibit F3) was read to Mr Smith and he agreed with it.

 

Questions from the Committee

 

118. In response to Committee questions, Mr Smith confirmed that, in his experience, the JCT MW contact does not allow for named sub-contractors. If there are “nominated sub-contractors” there would need to be a full JCT contract as these are suited for such projects. Where there are “others” outside of the JCT contract who are employed directly by the client then this is often without a JCT contract and are instructed less formally.

 

119. Mr Smith was asked what the impact would be to a contract administrator of having other contracts running alongside the JCT contract. Mr Smith suggested that the impact would be minimal. He gave the example of a window fitter instructed directly by the client. They would not be answerable to the contract administrator but could cause problems to a contract administrator by causing delay to the overall contract with consequences of wasted time and further expense.

 

120. Following the evidence of Mr Smith, Mr Foxsmith sought permission from the Committee to adduce 2 further documents. The Registered Person agreed to this. The documents related to meetings held prior to the hearing between Mr Armstrong and Mr Severs. The meetings were designed to establish whether a joint expert statement could be drafted identifying the areas of agreement between the experts. In the event, there were no areas of agreement and so no joint statement could be produced. However, some documents created during the process were provided to the Committee to assist in clarifying the competing positions of the experts.

 

121. The Committee agreed that these documents were of relevance to the proceedings and that no unfairness arose to the Registered Person as the documents were to be admitted by agreement. The Committee granted permission to adduce the evidence in accordance with Rules 19 and 20 of the 2022 Rules and/or Rule 15 of the 2019 Rules. The documents are exhibited as follows;

 

1. Armstrong statement – joint meeting (exhibit F4)
2. ARB solicitor agenda responses – Severs (exhibit F5)

 

122. The ARB recalled Mr Armstrong to comment upon these documents, F4 and F5. Mr Armstrong referred to the list of the NBS definitions. In response to the definition given by Mr Smith in respect of groundworks he agreed that it was correct and it included “site works” and “retaining walls”. In respect of the contract administrator being named in the contract, Mr Armstrong confirmed that tasks can be assigned to, for example, a quantity surveyor, but that this would not remove the overall responsibility under the contract of the contract administrator. It was right to seek advice from others who were better qualified as there was no contractual role of a quantity surveyor under a contract. The contract administrator would also have responsibility for the quality of the work, not just the cost, and a quantity surveyor has no involvement in that task. Mr Armstrong confirmed that in this case it was not suitable for a JCT MW contract as there was a “nomination” of sub-contractors. For a JCT MW contract any sub-contractors would have to be “domestic” to the main contractor, that is, the main contractor would be responsible for them.

 

123. In response to questions from the Committee, Mr Armstrong confirmed that, in relation to the ability of a contract administrator to utilise others to assist in the completion of tasks, the words “delegate”, “assign” or “devolve” do not dilute the responsibility of the contract administrator to have overall control.

 

124. Mr Armstrong also confirmed that where he has described different work stages from 0 to 3, that terminology comes from the RIBA Plan of Work which includes work stages that are consistent to any contract. It is the format for an architect to use in order to complete a project in a sequential manner.

 

125. His view was that there was no formal appointment because the Registered Person referred to the incorrect title of the RIBA agreement and, notwithstanding that error, didn’t send the document to Ms Morelli as promised.

 

126. He was asked about the suitability of the contract in the F4 document. He stated that a small works project puts more emphasis on the architect to address costs. In this case the Registered Person ought to have been more insistent on getting this information earlier in the process. The small project doesn’t exclude a QS. If a client says that they do not want a QS, then the small project would still be appropriate. He has never used a standard form for a domestic house build project. If there had been resistance to the architect’s recommendation for a QS this should be recorded in writing

 

127. Mr Nigel Adams (observer and Mackenzie Friend to the Registered Person) raised a concern that the Registered Person had relating to positive assertions about the summary judgement from the High Court and suggestions from Mr Howard that the Judge had indicated that the Registered Person should have been a part of the proceedings and whether the Judge had ruled on the existence of there being 1 or 3 contracts. There is a transcript of proceedings that has been disclosed to Registered Person’s solicitors but it was disclosed subject to such restrictions that it cannot be referred to unless privilege has been waived by Mr Howard. He stated that the Registered Person has concerns about the weight to be attached to these assertions. If no weight is to be attached, then no issue arises.

 

128. Mr Foxsmith confirmed that ARB was aware of the earlier Court proceedings and has been careful to avoid straying into that matter but conceded that, under questioning by the Registered Person, Mr Howard had referred to the Court being unable to determine whether there was one or three contracts. The Committee Chair asked ARB to contact Mr Howard, who had remained as a public observer after completing his evidence, to ascertain if he was prepared to waive privilege.

 

129. It was then relayed to the Committee that Mr Howard was not prepared to waive privilege at that time as he would need to consult others who shared the privilege and take legal advice on the matter. Neither party indicated that they sought an adjournment for this to take place.

 

130. The Committee considered whether the transcript should be admitted in evidence and concluded that it should not. The Committee was provided guidance by the Legally Qualified Chair. The brief reference to the High Court proceedings by Mr Howard in cross-examination did not provide any assistance as to whether there were three or only one contract on the Mr Howard project as the matter was not resolved. If the Committee is required to determine that aspect of the case, it will do so by utilising the evidence presented at this hearing. The Committee was advised to place no weight on any assertions as to what took place at the High Court. The Registered Person was not a party to those proceedings and the ARB has not sought to introduce through Mr Howard any aspects of the High Court evidence.

 

131. Immediately after ARB closed their case the Committee was notified that the expert for the Registered Person, Mr Severs, had provided additional documents for the Committee to consider that provided further explanatory information about the different types of contract. ARB agreed that the documents should be admitted in evidence.

 

132. The Committee considered each document and agreed to the admission of each as they were relevant to the issues in dispute and no unfairness arose as both parties agreed to their admission. The documents are exhibited as follows;

 

i. 231114 – arb solicitor agenda responses (002) – (Exhibit F6)

ii. RIBA Agreements Guide 02 – (Exhibit F7)

iii. UK CAWS works sections scope and contents June 2021 – (Exhibit F8)

iv. 231114 SEVERS Armstrong meeting – Architect cost services table – (Exhibit F9)

 

133. Prior to opening the case for the Registered Person, the Committee invited the Registered Person to make a hearsay application in respect of the witness statement of Mr Fry. The Committee had been put on notice earlier in the hearing that Mr Fry was not available to give evidence. This application was opposed by Mr Foxsmith on behalf of ARB. The argument advanced by the Registered Person was that the statement was important support for his case and that it would be unfair not to admit it. The ARB opposition was that the admission of the evidence would be unfair to ARB as they would be deprived of the ability to challenge the witness. The Committee was provided with a copy of an email from Mr Fry dated 17.11.23 to the Registered Person stating that the effect of the parallel civil litigation meant that he did not wish to attend to support the Registered Person.

 

134. The Legally Qualified Chair gave the Committee guidance regarding the admissibility of hearsay evidence which the Committee accepted. Hearsay evidence can be defined as a statement made, other than by a witness giving their own first-hand evidence in proceedings, which is tendered as evidence of the matters stated and which is relied on to prove the truth of the matters stated. In this case it is the statement of Mr Fry (page 21 of the Defence bundle). The Committee accepted the advice of the Legally Qualified Chair who referred it to Rule 19 of the Professional Conduct Committee Rules 2022 (“the Rules”) (Rule 15 of the 2019 Rules), and to the guidance provided in relation to the admissibility of disputed hearsay in the following cases: NMC v Ogbonna [2010] EWCA Civ 1216, Thorneycroft v NMC [2014] EWHC 1565 (Admin) and El Karout v NMC [2019] EWHC 28 (Admin).

 

135. The Committee has the discretion to proceed in the absence of a witness and to admit hearsay evidence, but should only do so with utmost care and caution after full consideration of the competing interests of the parties, but with emphasis on the interests of the Registered Person.

 

136. The admission of evidence in regulatory proceedings is generally governed by the twin issues of relevance and fairness. Relevance is determined by asking whether the evidence is probative of a fact in issue or supports, or contradicts, an argument or proposition that enables a party to prove its own case or disapprove the opposing case.

 

137. The principal guide to admissibility is fairness, balancing the interests of the prosecution case and the defence case. Relevant factors would include; the reason for the witness’s absence, whether the disputed evidence is a record or a document, when it was made, whether it was signed and whether there is a declaration of truth.

 

138. Admissibility of hearsay evidence should not be a routine matter but must be determined before determining the weight to attach to it. If the disputed hearsay evidence is the sole or decisive evidence in the case then the committee would need to give it careful consideration before admitting or excluding the evidence.

 

139. The Committee noted that Rule 19 of the Rules states: “The Hearing Panel may admit any evidence it considers fair and relevant to the case before it, whether or not such evidence would be admissible in a court of law.”

 

140. The Committee reviewed the statement of Mr Fry and considered the opposing arguments advanced. The Committee considered that the statement was clearly relevant to matters in dispute. In assessing the fairness of admitting this evidence the Committee acknowledged that ARB would be disadvantaged by the inability to challenge the evidence or advance their case to the witness. However, the Committee noted that the Registered Person had been similarly disadvantaged by the ARB witness, Mr Smith, when he refused to answer any questions on the same subject matter.

 

141. The Committee was mindful that the statement of Mr Fry contained a declaration of truth and was made in contemplation of these proceedings. The Registered Person conceded that Mr Fry had never intended to attend the hearing to give oral evidence and subject himself to challenge through cross examination, but that did not mean that the declaration of truth was to be ignored.

 

142. The Committee concluded that the evidence was relevant and that the balance of fairness should be in the favour of the Registered Person and that Mr Fry’s statement should be admitted. It will be a matter of the Committee’s judgement as to the weight that should be attached to the content of the statement.

 

143. Before the Registered Person opened his case, Mr Foxsmith informed the Committee that Mr Howard had waived privilege and had provided ARB with documents pertaining to the High Court civil proceedings between Putenson and Mr Fry. Mr Foxsmith requested further time to assess whether the documents ought to be disclosed to the Registered Person and the Committee. The Committee Chair reminded ARB that they had closed their case and so consideration of disclosure must focus on whether the documents might assist the Registered Person case or undermine the case presented by ARB.

 

144. The documents were provided to the Committee shortly thereafter. They confirmed that the dispute between Mr Howard and Mr Fry involved the same argument advanced before the Committee namely whether there was one contract or three at the Mr Howard project. The documents confirmed that the Court could see some force in the contention that there were 3 contracts but ultimately did not resolve that matter.

 

145. The Committee considered the documents and admitted them as being relevant and causing no unfairness to either party. The documents are exhibited as follows;

 

i. Forwarded email from Joe H that attaches – Judgement 03.02.2020 (Exhibit F10)

ii. Judgement 03.02.2020 (Exhibit F11)

iv. Putensen Properties Ltd v Fry draft minute of order 03.02.2020 (Exhibit F12)

 

Application of No Case to Answer

 

146. On behalf of the Registered Person, Mr Nigel Adams submitted that there was no case to answer in respect of allegations 1.2 and 1.3. Reference was made to the case of Galbraith and that the application fell under the second limb of the Galbraith test, that the evidence was inherently weak, vague or was inconsistent with other evidence.

 

147. The Committee was referred to the note of the proceedings in the civil court that took place on 3 February 2020 and the observations made in those proceedings, specifically in relation to the question as to whether the Mr Howard project was subject to three separate contracts or one overarching contract. The Committee was also referred to the responses given by Mr Howard during cross examination by the Registered Person relating to what had taken place during that hearing in February 2020. It was suggested that Mr Howard’s assertions had been misleading.

 

148. In response, Mr. Foxsmith on behalf of ARB opposed the application. He asserted that the litigation between Mr Howard and Mr Fry, although touching upon the same subject matter, was different to the allegations facing the Registered Person before the Committee. He pointed out, correctly, that the civil litigation had not determined whether there was one or three contracts at the Mr Howard project. This was a matter confirmed in an agreed position document dated 11 December 2023 that was provided to the Committee in the course of the submissions. This question remained only one part of the evidence that the Committee will need to consider and resolve in due course.

 

149. The legally qualified chair provided the following guidance to the Committee before retiring to deliberate on the submission of no case to answer.

 

150. Rule 19c of the Professional Conduct Rules 2019 expressly provided for a submission of no case to answer: although this rule is not replicated in the 2022 rules, the Committee retains the ability to hear an application of no case to answer at the close of the ARB case notwithstanding the absence of an express provision in the 2022 rules. No useful purpose is served by a Committee continuing proceedings if there is no real prospect of ARB proving the facts alleged.

 

151. The burden of proving the allegations sits with the ARB and the Registered Person does not have to prove or disprove anything. The Committee must keep this in mind.

 

152. General principles are set out in the case of Galbraith. If there is no evidence that the allegation has been committed, there is no difficulty. A judge, in the criminal jurisdiction, will of course stop the case. The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

 

153. Where a judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it is his duty upon submission being made to stop the case. Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of the witnesses reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury. There will of course as always in this branch of the law be borderline cases. They can safely be left to the discretion of the judge.

 

154. In regulatory proceedings the same effect is obtained by the tribunal asking itself the question; is there any evidence upon which a properly directed panel could find the alleged facts proved? If the answer is yes, it could (not that it would) then the tribunal should proceed to hear the defence case receiving evidence from the Registered Person. This approach is approved in a regulatory context. The Committee should assess all the evidence when deciding whether there is an inherent weakness.

 

155. The Committee carefully reviewed the evidence and the submissions made by both parties. In respect of the question as to whether there was only one contract or three separate contracts, the Committee concluded that this matter had not been resolved during the civil litigation and remained a matter of dispute between the parties in this hearing. Evidence has been provided by ARB on this subject and it has been challenged by the Registered Person. This issue remains a matter for the judgement of the Committee. The evidence adduced thus far does not render this aspect of the case so tenuous, vague or weak that the proceedings should be brought to an end.

 

156. The observations and criticisms made in relation to the evidence given by Mr Howard during cross examination require an assessment of the reliability of Mr Howard before any conclusions can be resolved. The issue of reliability is a matter within the province of the Committee’s judgement when deliberating at the fact-finding stage. The test under the second limb of Galbraith was not met and the case proceeded.

 

157. The Registered Person gave evidence and adopted the documents that he previously submitted to ARB.

 

Evidence on the Mr Howard matter (Allegation 1)

 

158. The Registered Person observed that Mr Smith could have answered questions about that matter as he was there. The Registered Person stated that he had been prejudiced because Mr Smith refused to answer any questions on this subject. The Registered Person identified the exhibit at page D96 as proof of a contract between Foundation Piling and Putenson. This, he asserted, proved the existence of more than one contract and supported his case.

 

159. The Registered Person stated that the other contracts were for piling and groundworks. The groundworks contract was a verbal contract and the Registered Person was not a party to either of them and neither formed part of the JCT MW contract. If they were combined, which the Registered Person stated they were not, he would have suggested that Mr Howard employ a separate contract administrator. He stated that as these two contracts were outside of his remit, the remaining contract for the house build was small and uncomplicated.

 

160. The other contracts were complicated, but, when completed, left the Registered Person with a clean site with a concrete base, retaining walls and piling. To put a house into the prepared site was very straight-forward. That is why no separate contract administrator was deemed required. The Registered Person stated that he was not qualified as a contract administrator, but the role was not onerous so he was comfortable taking on that role.

 

161. The Registered Person stated that he put together a team of nine people who would come together to build the house. This included himself as architect, a structural surveyor, a quantity surveyor, a warranty surveyor, a structural wall surveyor, building control, the main contractor and the party wall surveyor.

 

162. The Registered Person referred to the contract administrator pack that he uses from RIBA publishing as the guidance that the Registered Person followed in the absence of an independent contract administrator. This contains documents that enable the Registered Person to act as contract administrator. The Registered Person admitted that he has not referred to the pack in his statement but did use the pack as a reference document when he took on roles in the JCT MW contract.

 

163. The Registered Person stated that Mr Howard was young and vulnerable in taking on this project. This project was complicated by the piling work that was required. He stated that Mr Howard rejected his advice and chose Foundation Piling who started work before the JCT contact was signed. The Registered Person stated that he and others tried to help Mr Howard as much as possible outside of the contractual obligations and that this help and advice was given, notwithstanding the terms of the retainer.

 

164. The Registered Person stated that a dispute arose between Mr Howard and the party wall surveyor. Mr Howard asked for help and the Registered Person made a statement to assist Mr Howard. This matter was settled without court proceedings.

 

165. The Registered Person asserted that the JCT MW contract does not preclude the hiring of a quantity surveyor (QS). Mr Smith was hired and his valuations only started when the house was being built, not before when site development was taking place. He stated that there were no technical drawings for piling, groundworks or retaining walls as this was outside of the contract.

 

166. The house was completed under the JCT MW contract, it was 4 years later that Mr Howard started the complaint to ARB, which came as a shock to the Registered Person.

 

167. The Registered Person stated that he visited the site alongside Mr Howard’s family members to clarify the works. He recalled that there was a period when the Registered Person was locked out of the site. He said that practical completion never took place as the account was never settled with the contractor. The Registered Person drafted a defects list and the contractor sought to complete the corrections. However, Mr Howard attended the site with his own builders to carry out further work on site.

 

168. The Registered Person feels that he has become the target of Mr Howard as a result of perceived lack of success in the civil proceedings against Mr Fry. The Registered Person suspects that Mr Howard is searching for a “pathway” to future litigation.

 

Evidence on the Ms Morelli matter (Allegation 2)

 

169. In respect of the Ms Morelli project, the Registered Person confirmed that he had worked with her on 3 previous projects. The Registered Person knew that the client was a barrister and she dealt with matters as a “consummate professional”. The brief was for a dream retirement home. The cost were fixed at £300,000 and this was very clear and very strict. This was for the whole of the house but excluding site acquisition, fees and secondary costs. The Registered Person knew the sum included groundworks.

 

170. The Registered Person was delighted to be involved. There was a social aspect to the relationship which he asserted helped him get “under the skin” of the project and better enabled him to understand exactly what the client required.

 

171. The Registered Person stated that he was appointed up to obtaining planning consent, but no further. The “RIBA standard form of agreement for appointment of an architect” is the form that he used. This was his preferred form for bespoke projects with lay clients as it used straightforward terminology.

 

172. There was no detailed design development which is usually commenced after planning consent is granted and the client is advised to review the development and move forward. Cost often change at this point. However, Ms Morelli lost confidence at this stage and chose, without notice, to instruct another architect (Ecotecture) and also instructed a quantity surveyor (Mr Smith) and a firm of structural engineers.

 

 

173. The Registered Person was surprised that Mr Smith did not make contact with him to discuss the method of construction that the Registered Person planned to use. As such, Mr Smith would not know the weight of the proposed building which would have had a profound effect on what took place “below ground”. Mr Smith, in the view of the Registered Person, prepared his report based on irrelevant drawings, as did the BLB engineers. The Registered Person considered that there were 6 different methods of coping with the sloping topography on the site and had experience of 2 projects in close proximity to base his views upon.

 

 

174. The Registered Person explained that he has 52 years of experience of groundworkers. They do different things and there is no generic definition. Some do piling work or build retaining walls, some do not. The first stage of any project is site clearance. Then later sub-structure is constructed. The Registered Person took issue with the definition of groundwork given by Mr Smith. The Registered Person stated that there is no overall definition and that, before advising on groundworks, the build method must be determined.

 

 

175. In any event, the Registered Person estimated that £40,000 would be sufficient for groundworks based upon his experience of the area and his previous projects. He could also avoid design development and other cost included by Mr Smith in his cost estimate. There was, in his view, a sufficient amount set aside after the £260,000 was allocated to the build to cater for groundworks. He maintained that the cost advice was “more than adequate”.

 

 

176. Prior to cross-examination commencing, the Registered Person (through Mr Severs) submitted a further pack of documents from the RIBA website described as JCT MWD16 – Contract Administration Forms. ARB agreed to these documents being put before the Committee who, in turn, agreed to the admission of them in accordance with the Rules. However, the Committee were of the view that the documents were incomplete and did not match the description given by the Registered Person. The Registered Person confirmed that there was a 2-page guidance document that was not included and the Committee allowed a short break for the Registered Person to provide these pages to ARB. “Notes to the contract administration forms MW11” The Committee granted permission to admit this document and the associated template forms as Exhibit F13.

 

 

Cross examination of the Registered Person on Allegation 1

 

177. The Registered Person was cross-examined by Mr Foxsmith on behalf of ARB. The Registered Person was taken to the guidance notes of F13. The “Interim certificate” section was referred to. The Registered Person confirmed that the word “must” in relation to the date of the service of the certificates applied unless the term was disabled between the employer, Mr Howard, who he said bypassed the Registered Person.

 

178. The contract confirmed the due dates and the duty that the contract administrator shall issue interim certificates. The Registered Person stated that he was willing to do so, but he was never shown any valuations, so could not issue interim certificates. In that situation, in which the Registered Person said that he had never before found himself, he did not seek to vary the contract as he said that was not available to him. Mr Howard, he says, made it impossible for the Registered Person to do his job. The Registered Person conceded that he should have made some form of record to evidence this problem.

 

 

179. In dealing with the issuance of the practical completion certificate, the Registered Person confirmed that it never took place. The final valuation was issued from Mr Smith, but Mr Howard did not want to pay the amount to complete the work. He stated that he was excluded from the site by this stage. The Registered Person stated that he was prevented from “administrating” the contract properly. It was not a failure on his part, he was disallowed from completing his task. The Registered Person conceded that there is no record of these difficulties arising. It is his word alone in support of his assertions.

 

 

180. The Registered Person asserted that Mr Smith would have been able to support his case, had he not refused to answer questions. Registered Person stated that it was extraordinary that a client would prevent him from carrying out his contract administrator duties and then complain that he had not done so.

 

 

181. The Registered Person asserted that Mr Fry, who was known to him and was well respected as a man of integrity, introduced the Registered Person to Mr Howard. With the benefit of hindsight, the Registered Person agreed that he could have done things differently but repeated that there was no practical completion because the Registered Person was locked out of the site and the final account was never settled. The Registered Person agreed that he should have sent Mr Howard an email setting this out.

 

 

182. The Registered Person accepted that he was in email communication with Mr Howard at that point in time and that he did not raise the concerns that he set out in his evidence, but his emails at that time did refer to the retainer fee being outstanding.

 

 

Cross-examination of the Registered Person on Allegation 2 (the Ms Morelli case)

 

183. In response to a suggestion in cross-examination, the Registered Person confirmed that his career has been a long learning process including the times when he was teaching. On the Ms Morelli project he noted that he had 1300 documents, many of which were drawings and 3D drawings, that the client had suggested never existed. It was noted that this had not been put to Ms Morelli. An animation had been prepared that simulated the light entering the planned building.  He did regret the emotional emails sent to Ms Morelli after being dismissed. However, he did not regret the activity in developing the plans for her project. The reduction in size to 114 sq. metres gave him great confidence that he would be able to meet the budget. The Registered Person stated that until planning consent is granted the client would not have a fixed figure for costs. The reduced footprint minimised the amount of groundworks required to build the project.

 

184. It was suggested by Mr Foxsmith that none of the thinking outlined by the Registered Person had been communicated to Ms Morelli. The Registered Person responded by stating that the concerns of Ms Morelli were misplaced and exaggerated in stating that the scheme designed by the Registered Person was unusable in its entirety. The advice on cost was given and was, in the view of the Registered Person, adequate. It was a constant process of redesign to improve the economics of the project. The Registered Person suggested that there were emails from him to Ms Morelli that had not been exhibited during the hearing. These emails were not produced by the Registered Person.

 

 

185. The Registered Person stated that Mr Armstrong was flawed in his assessment of the groundwork cost as he had not visited the site or had taken samples and had no idea as to the building that the Registered Person had planned for the site. As such, he would not have known the weight of the construction. Mr Armstrong also did not have the local knowledge that the Registered Person had in respect of similar developments.

 

 

186. On 6 January 2019 an email from Ms Morelli was sent to the Registered Person. This was presented to the Registered Person. It was put to him that the client had asked about cost and there appeared to be no response. The Registered Person stated that Ms Morelli would often attend the office when she was walking past and that there were frequent conversations during which the budget was raised. The initial £40,000 was an estimate but adequate at that time. The Registered Person had no note or record of such meetings or what had been discussed at them. There was no email response from the Registered Person to the email.

 

 

187. The Registered Person stated that at this stage the figures were “rough and ready” as Ms Morelli had described in her evidence. He also confirmed that the email demonstrated that face-to-face meetings were often held with Ms Morelli and that might explain why there was no email response. It would have been during that meeting in the “next week” that the Registered Person would have provided the “better understanding” of cost that she had requested. The Registered Person did not have a diary entry to confirm when the meeting would have taken place as he would often accommodate informal meetings as part of his open-door policy. He refuted the suggestion that he had ignored Ms Morelli and “brushed off” her request.

 

 

Cross-examination of the Registered Person on Allegation 1 (the Mr Howard case)

 

188. In relation to the Mr Howard project, the Registered Person was invited to review his actions with the benefit of hindsight and reflection. He was content that he had selected the correct contract. The site had been prepared and then the house came to be built and it was a simple process for which a JCT MW contract was suitable. He was content that he acted appropriately.

 

189. The Registered Person agreed that Mr Howard was young and inexperienced in a project of this nature and that he was aware of that at the time. At page 7 para 14 of the Registered Person’s statement the Registered Person had suggested that Mr Howard was to blame for the errors in the project. The Registered Person did not accept the suggestion that he was partially responsible for therchitet failings. The Registered Person accepted that he did want to help Mr Howard and guide him through the process. He did not recall giving a video of his appearance on Grand Designs, but he agreed that he had done so before, so it was possible.

 

 

190. The Registered Person agreed that he was to provide site supervision. £5750 was the fee proposal put to Mr Howard. There was also a £500 per month retainer that the Registered Person described as being “post contract”. The Registered Person agrees that a fully compliant terms of engagement letter would have ameliorated the situation.

 

 

191. The Registered Person did not accept that a JCT MW contract was wrong for because a quantity surveyor was deployed in the project. He stated that he was allowed to seek advice from a quantity surveyor. He did not accept that he simply put the contract in his drawer, but he had advised Mr Howard that the JCT MW contract was the most appropriate contact for the project. The Registered Person stated that his preference, after a contract is signed, is to put it away and ensure that there is a good understanding between the parties so that it is not required again.

 

 

192. The Registered Person did not accept that he was contract administrator for the project. He stated that there was no contract administrator and one was not required. In so far as the duties required someone to carry out the role, he did so. The JCT MW did not require a contract administrator as there was only one contract. It was suggested that during questions to a witness earlier in the hearing that he had accepted being the contract administrator. The Registered Person clarified that if he had said this, it was a mistake. His experience has been either to hire an independent contract administrator or not. Where the contract is simple in nature then he would often decide it is not necessary. This still leaves the conditions to be administered. There is no independent contract administrator, but there are still things to be done which are contract administrator roles and he would carry them out as an architect.

 

 

193. It was suggested that the contract does not work without a contract administrator. The Registered Person agreed and this is either the contract administrator or the architect who becomes a proxy contract administrator. Every contract is required to be “administrated” and this can be by the architect, if simple, or a professional contract administrator. In the JCT MW contract this is set out in the footnotes. The Registered Person stated that he was not qualified to act as contract administrator for the intermediate or full versions of the JCT contract.

 

 

194. The Chair referred the Registered Person to footnote 6 of the JCT MW contract which confirms that when the term “CA” is deleted in preference for the term “architect” that the term “CA” is to be deleted throughout the JCT MW contract. However, the duties and obligations, irrespective of the term used, remain the same. The Registered Person and ARB agreed that this was the correct interpretation.

 

 

195. When the Registered Person was taken to the contract, it was asked whether the term “ancillary works” included the groundworks. The Registered Person disagreed and stated that the term meant “external works”. He confirmed that he had, when asked by Mr Howard, provided some advice about the piling quotation but it was to dissuade him from using that particular contractor. Mr Howard went ahead despite the advice from the Registered Person. It was not unusual for the Registered Person to provide ad hoc help to Mr Howard or his family. This was outside of his contractual obligations and not charged for.

 

 

196. The Registered Person agreed that he wrote to neighbours on behalf of Mr Howard in respect of the party wall issues. The Registered Person maintained that this was not connected to the £500 per month retainer, which was paid in relation to the construction of the house. The Registered Person stated that Mr Howard knew there were 3 contracts (piling, groundworks and the house build) and so would deduce that any advice about work prior to commencing building of the house was free of charge and provided to help him.

 

 

197. ARB agreed that Mr Howard had accepted there was a separate contract for piling, but not for the groundworks. The Registered Person stated that the groundworks were also a separate contract and that Mr Howard knew that and would know when the Registered Person was providing advice under the contract for the house building. The Registered Person stated that his time expended was far beyond the retainer value. The Registered Person was adamant that there were no groundwork drawings attached to the JCT MW contract.

 

 

198. The Registered Person was referred to a text message between the Registered Person and Mr Howard dated 19.12.2017 wherein the retainer fee was discussed, but no mention made of the limits that applied to it. The Registered Person understood the reference to the retainer covering “site supervision and contract management” to mean his duty to ensure the contract was being properly administered via site visits to assess that the quality of work and quantity was satisfactory. All this was in relation to the contract to build the house only. Any assistance that he provided outside of this was not charged.

 

 

199. ARB referred to the findings of the Inquirer that the contract administrator duties are taken on by the architect. The Registered Person

 

 

200. The Registered Person did not agree to falling short in his duties as he was prohibited from performing this role. The Registered Person stated that Mr Howard prevented him from doing so. In respect of practical completion, the Registered Person stated that there was no completion and so no form was due. The ARB conceded that this was correct. The Registered Person stated that the contractor did not apply for an extension of time and so there was no requirement under clause 2.7. Clause 2.11 – making good certificate – could not be complied with as the defects had not been made good because the client, Mr Howard, had locked the site and engaged new contractors. The Registered Person confirmed that he did not evidence that difficulty by way of communications to the client.

 

 

201. The Registered Person accepted that clause 3.4 imposes a duty to communicate in writing with the contractor. He asserted that there was no need as the contractor was aware of the instructions.

 

 

202. Clause 3.6.2 & 3.6.3 requires the contract administrator to endeavour to agree a price before the contractor carries out the instruction. The Registered Person stated that getting cost advice from the quantity surveyor is not prohibited by the JCT MW contract. This process was agreed with the contractor and client. The Registered Person did not agree that this issue required an intermediate contract to replace the MW contract.

 

 

203. Clause 4.3 requires the provision of interim certificates. The Registered Person stated that these were provided by Mr Smith as he was better qualified to assist in the discharge of this duty. It was pointed out by ARB that the JCT MW contract did not allow for the appointment of a quantity surveyor. The Registered Person stated that this process had been agreed by all parties and the certificates were issued on behalf of the Registered Person by Mr Smith.

 

 

204. The Registered Person refuted the assertion by Mr Armstrong in his report that he had failed to carry out, in part, his duties as contract administrator. The Registered Person stated that the contract administrator and/or architect was not qualified to provide cost advice so he decided that he would seek an independent quantity surveyor to undertake this task. He asserted that he was entitled to “novate” that duty on the quantity surveyor for the benefit of the contract.

 

 

205. It was suggested by ARB that the Registered Person should have issued a certificate of non-completion. The Registered Person repeated that the project was subject to “unorthodoxy” and the main contractor had left site and other ad hoc instructions of different contractors had arrived without notification. He was unsure if he had a duty to issue a certificate of non-completion in such circumstances.

 

 

206. Turning to the issue of the choice of contract, ARB referred to the Inquirer’s report. The Inquirer asserted that the intermediate form of the JCT contract should have been chosen. The Registered Person stated that this was incorrect. There was no input from any of the various “consultants” for the house building contract. They were required for matters outside the contract. There was no “basic bill of quantities” and the quantity surveyor was appointed as an adviser only. There were named organisations, but these were involved in the project outside of the contract. Party walls were also outside the contract. This was, in the view of the Registered Person, all part of groundworks that were not part of the JCT MW contract for the building of the house only.

 

 

207. The Registered Person stated that the Inquirer was in error as he had not considered that there were 3 separate contracts but had taken on face value the assertion of Mr Howard that there was a single contract. The Registered Person pointed out that ARB appear to concede that there were at least 2 contracts following the evidence of Mr Howard (the piling contract being accepted as separate). ARB did concede that this was the case.

 

 

Cross examination of the Registered Person on Allegation 2 (the Ms Morelli case)

 

208. In respect of the Ms Morelli project, ARB reminded the Registered Person that the evidence from Ms Morelli was that there was no cost advice other than the Registered Person asserting that it could all be done within the £300,000 budget. The Registered Person confirmed that cost was frequently discussed, but she then sought cost advice from another architect and quantity surveyor, but this was irrelevant as it was not based on the Registered Person’s design or method of build. He stated that he had not reached the point when it was appropriate to instruct a quantity surveyor. His plans were developing through an iterative process with a constant view to the overall budget. He had not made final decisions until after planning was granted and the design then developed. His appointment was to stage 3 of the RIBA plan of work, to include the planning application process.

 

209. The Registered Person was under the impression that he would have been retained throughout the project and was unaware of the discussions that Ms Morelli had with Ecotecture and Mr Smith. He would have expected the new architect to contact him if there was an intention to remove him from the project.

 

 

210. He would have engaged value-engineering, if necessary, and would have continued to ensure the project maximised the budget. The design was amended from 3 to 2 bedrooms, the garage replaced with a car port and garden reduced to a deck.

 

 

211. ARB asserted that Mr Smith would have come to the same conclusion as to cost even if he relied on an earlier iteration of the design that was granted planning permission. The Registered Person stated that he could have managed the project to meet the budget to remove many of the expenses that Mr Smith had included. The Registered Person maintained that Mr Smith did not know the build method and so he, and the engineers, made assumptions that were incorrect. £40,000 was adequate, at that time, to cover potential groundworks.

 

 

212. The Registered Person stated that the topography of the site, although always the same, could be worked on in different ways depending on the design of the building. Mr Smith based his cost analysis for groundworks on an incorrect design. The Registered Person maintains that the cost advice he gave was adequate at the relevant time.

 

 

213. The Registered Person pointed out that the Inquirer’s opinion lacked his own knowledge of the site, the local area and the other drawings that should have been looked at. The Registered Person denied that he fell below the standard required of an architect.

 

 

214. The Registered Person gave explanatory evidence by way of re-examination. He asserted that it was his practice to take great care in his projects.

 

 

Committee questions of the Registered Person on Allegation 1 (the Mr Howard case)

 

215. The Committee had further questions for the Registered Person. The Registered Person was able to clarify that on the 2 October 2015, when the contract with Mr Howard was signed, he understood that he was taking on contract administrator responsibilities as the Architect as per the Article 3 deletion. At Article 4 of the contract the Registered Person confirmed that he understood that the contractor was taking on CDM coordinator responsibilities. Having reviewed the contract he agreed that actually he was the appointed CDM coordinator. The contract is very clear in that matter.

 

216. The Registered Person was asked why he did not record the frustrations that he says were being caused by Mr Howard obstructing his ability to discharge his contract administrator duty. The Registered Person confirmed that he did not do so and has no explanation for this. He stated that it was not an oversight, but was an omission and an error and he should have done so.

 

 

217. The Registered Person confirmed that he did not have any discussions with Mr Howard about which of the contract administrator duties that the Registered Person would be responsible for. He did not feel that he was obliged to make that explanation to the client. He assumed that Mr Howard had read and understood the contract before he signed it. The Registered Person acknowledged that the contract was, in parts, confusing.

 

 

218. The Registered Person maintained that the building of Mr Howard’s house would have been simple once the groundwork had been constructed. It was a straight-forward house where 3 walls were already in place. The site was “clean” and as straight forward as a site could be. There were some changes that Mr Howard made with his own contractors towards the end of the project. The development budget came to around £240,000.

 

 

219. The Registered Person was asked why the contractor was paid £423,000 against that budget. His response was that the excess paid to the contractor was outside of his knowledge and not connected to the house build and must have related to the groundworks and piling. The contractor, Mr Fry, was a family friend of Mr Howard’s family and he was drawn into these separate contracts and that, the Registered Person speculated, involved the payment of the separate contracts.

 

 

220. The Registered Person was taken to his statement at page 9 of the Registered Person’s bundle and specifically paragraph 34. This paragraph states that the Registered Person was “not contracted to…act as the contractor administrator”. The Registered Person confirmed that his statement was incorrect and he was acting as contract administrator. The same error was found at paragraphs 32, 37 and 40 of his statement.

 

 

221. The Registered Person was asked whether a contractor could act as a CDM coordinator in accordance with the applicable regulations. The Registered Person knew that the contractor would hold the Health and Safety file but was unaware whether the contractor could not act as the CDM coordinator. The Registered Person acknowledged that the CDM coordinator role is for the contract administrator or architect, but that he passed this role to the contractor early in the contract. The Registered Person confirmed that there was no evidence of this reassignment of the CDM coordinator role.

 

 

222. The Registered Person was asked about the second recital where the handwritten words “the attached bundle” are entered and asked what the “contract drawings” were that accompanied the contract. The Registered Person could not confirm which drawing were with the contract. They would have had stickers placed on them by Mr Smith and would have been signed by the parties. They were placed in the Registered Person’s drawer and taken by Mr Howard at a later stage. The Registered Person confirmed that there was no other specification other than the drawings which, he stated, were sufficient to describe the works. The Registered Person could not say whether there were other drawings, but he was sure there were none relating to piling or groundworks as these were separate contacts.

 

 

223. The Registered Person stated that the contractor was able to price the house without a specification document or schedule of works as this was undertaken by Mr Smith who used the drawings and liaised with the Registered Person to build up the schedule of works. Mr Smith then presented this to the contractor who agreed the works. The Registered Person had sight of this document and made use of it during the contract.

 

 

224. The Registered Person stated that the only variation of the contract was the addition of a door. Other matters were agreed directly between Mr Howard and the contractor and he was not involved in this. He did not see that this required a written instruction from him acting as contract administrator as he was excluded from the discussion.

 

 

225. The Registered Person considered that the appointment of the quantity surveyor was a recommendation by him that the client make the appointment and Mr Howard was responsible for the fees incurred. The responsibility for issuing certificates under the contract administrator obligations was then shared with the quantity surveyor. The Registered Person asserted that this was compatible with the duties of a contract administrator.

 

 

226. The Registered Person was asked about his evidence that the RIBA “plan of work” being followed allowed the Registered Person to obtain a discount on his insurance. The Registered Person stated that it was the completion of the RIBA job book that created the discount. The Registered Person was content that his actions could be tested against the RIBA plan of work.

 

 

227. When asked about the suggestion made by ARB that an alternative type of JCT contract should be used and whether the phrase “architect/CA” appears in all versions, the Registered Person did not know. He stated that he rarely looks at the intermediate or full JCT contracts. The Registered Person stated that he has not had any formal training to assist in discharging the contract administrator role. He stated that the only available professional training comes in practice and not during university education. The Registered Person confirmed that he knows this from his own experience teaching in universities. His belief is that the formal training is inadequate for a newly qualified architect to act as a contract administrator. The Registered Person has previously hired independent specialist contract administrator practitioners to take on this role. In order to be able to take on this role himself, the Registered Person has utilised CPD in order to develop his ability to take on the role of contract administrator.

 

 

228. The Registered Person was asked about the structure of the practice in terms of supervision of, for example, the employee who wrote emails regarding fees. The Registered Person stated that he is demanding of the quality of service his practice provides and so is selective when taking on colleagues. The size of his team expands or contracts depending upon demand and he will target a bespoke team for each project. Mr M, the employee who sent the email, was a full-time assistant and there would have been some other part-time assistants.

 

 

229. In response to further questions from ARB, the Registered Person confirmed that he lacked familiarity with the JCT intermediate or full contracts. It was suggested that this lack of familiarity must have been an obstacle to choosing the correct contract for a project. The Registered Person considered that the project was obviously suitable for a JCT MW contract and so needed no further consideration. The Registered Person accepted that he did not compare the different contracts with each other, but remained convinced that, as the JCT MW contract was suitable, he need not undertake such a comparison. He accepted that the Inquirer had undertaken this comparison when forming his opinion. He did not accept that this put the Inquirer in a stronger position, as the Inquirer had approached the issue with the mistaken assumption that the contract was complicated and involved the issues relating to the complex groundworks.

 

 

Evidence of Mr Severs

 

230. Prior to Mr Severs commencing his evidence in chief, the Registered Person applied to adduce further exhibits. The ARB initially objected to the admission of these documents but eventually took a neutral stance once it was clear that the documents comprised reference material. The Committee considered the application carefully and allowed the admission under the Rules. The bundle provided under the title “DS Supporting Document Bundle” comprising 153 pages was admitted under exhibit reference F14.

 

231. Mr Severs commented on the method of cost calculation used by Mr Smith. The £432,000 total cost and the “per square metre” cost of £4,235 means he assumed the floor area of 102sqm (excluding the garage). The actual floor area is 114sqm (or 132sqm with the garage). If the correct floor area was used the cost per sqm would fall to £3272 sqm. This error increases the cost per sqm and has an ongoing effect on other calculations that impact on the sum that would have been available for groundworks.

 

 

232. Mr Severs also pointed out that rules for calculating gross internal area say that garages should be included. This, too, has a significant impact of cost per square metre. All conclusions are substantially affected by these differences. His evidence was that there is no correct answer as to the correct measurement and there was no floor area set out in the planning application. There were only linear dimensions set out in the planning application with a scale bar, so floor area should be able to be calculated from the drawing.

 

 

233. The Registered Person asked Mr Severs to assist with definition of groundworks. DS referred to the common classification of “Groundwork” and noted it does not include “substructure” for example cast concrete slabs, foundations, retaining walls other than embedded retaining walls. This is just one usage that is commonly used.

 

 

234. Mr Severs stated that quantity surveyors have a set of rules and do not use “groundworks” as a heading but would associate the groundwork element to the purpose the works are directed towards.

 

 

235. Ther Registered Person took Mr Severs to the length of the retaining wall and the associated cost. Mr Severs asserted that the wall could have been shorter. Therefore, this was a cost that was avoidable, and, in liaison with the engineer, when the building designs were developed, this cost may have been eliminated if the project had progressed.

 

 

236. Also, the steeply sloped south elevation would also not have needed a 3m reinforced retaining wall and could have been removed from the costs. As such about 30% of the wall, and the associated costs, could be eliminated.

 

 

Cross-examination of Mr Severs

 

237. In cross-examination by Mr Foxsmith on behalf of ARB, Mr Severs was asked about the circumstances of his being involved in the case. Mr Severs confirmed that he is not offering an expert opinion but is simply directing attention to areas of the evidence that are relevant. He is offering himself as an expert witness for the purposes of the hearing but would not describe himself as “an expert”. He accepted his limited experience and accepted that he is a friend of the Registered Person. He agreed that he is not paid for the assistance that he has provided. However, he did not accept that his view was affected by his relationship. He had been given the ARB bundle by Mr Adams. He had no formal letter of instruction.

 

238. He believed that groundworks would mean, to a layperson, preparatory work before the building of the main works.

 

 

239. Mr Severs referred the options for an Architect as regards the provision of cost information. There is an overarching obligation to design to the budget and raise issues that might affect costs. This is put forward as an adequate level of service.

 

 

240. Mr Severs stated that Ms Morelli had some cost advice as evidenced by the email of 6^th January 2019. She did not have the same level of advice as provided by the subsequent architect, but he asserted that she had some cost information as required by the form of contract. In any event, the cost information was in accordance with the brief and the time had not yet arrived for a detailed cost plan. Mr Severs stated that clients would not want or expect to pay for such a service until planning permission had been granted. This would have become due at the end of stage 3, but that had not been reached and would not have been until after planning permission had been rchitned. This would need to be explained to the client.

 

 

241. Mr Severs stated that the Registered Person should have had an appointment document in place with Ms Morelli. It was not unusual for a project to be handed over to a new architect, what was unusual was that the two architects were not in contact with each other. There was no reason why that could not have taken place.

 

 

242. The lack of any note of meetings where cost was discussed was a problem and attributable to the Registered Person.

 

 

Questions from the Committee to Mr Severs

 

243. In answer to questions from the Committee, Mr Severs confirmed that the email exchange between the Registered Person and Ms Morelli sets out the fee and some cost information. An earlier email refers to the RIBA standard form for the appointment of an architect. This email forms the inception of the appointment that includes a statement of the brief and includes the overall budget. This would be stage 1 in the standard RIBA agreement. Mr Severs believed that the project proceeded to stage 2, but did not reach stage 3 with the Registered Person as he did not have the engineers design material.

 

244. Mr Severs was asked to identify the type of advice that he would expect to offer with reference to the cost of ground works. Mr Severs stated that the architect has a choice to advise that a cost consultant is necessary at stage 2 to prepare a design within that cost plan. But, if the architect has the necessary experience of similar projects then a cost consultant might be unnecessary. It is an obligation to provide information for a cost plan or to provide the cost plan themselves.

 

 

245. Mr Severs stated that where an architect has experience of similar projects then that is a reasonable basis upon which to estimate cost. In other cases, there is standard cost information available from which a budget can be assessed. Such cost information could be conveyed to a client or that clause could be struck through if an architect was not confident in providing that information and the client then assumes the risk that the budget might not be met. If rchitectt has opted to keep that clause and does provide cost information then the RIBA job book contains a template that can be utilised at stage 2. It is a brief template and no requirement to demonstrate how the figure has been calculated. An experienced architect would not, in Mr Severs view, be required to justify the cost plan with evidence supporting the budget.

 

 

246. If a project contains a higher risk element, Mr Severs stated that he would expect an architect to address that high-risk element, explicitly, with the client. This would be put in writing to the client to highlight the additional cost and time involved. However, if the architect is confident and has experienced that risk before, and is comfortable with the risk, then there might not be a need to inform the client, as the Registered Person had done in this situation. The subsequent architect did not have the experience of the Registered Person and chose to undertake a ground survey before proceeding.

 

 

247. Mr Severs acknowledged that groundworks were a significant cost in the Ms Morelli project. He was asked by the Committee whether he has seen any specific information provided to Ms Morelli suggesting or mentioning the instruction of a cost consultant. Mr Severs stated that he had seen that the Registered Person’s plan set out that a cost consultant would only be instructed after planning permission was granted. There are also references to the cost of other consultants within the cost estimate.

 

 

248. The Committee asked Mr Severs to explain the distinction between “average” and “normal” costs, terms that he has used in his evidence. Mr Severs stated that “normal” cost is derived from Smith’s use of “average” costs. Normal cost includes a range of costs. Mr Severs explained that cost could be within a normal range, but outside of the average. A difference of 10%, 15% or even 20% from the “average” cost could still be within the “normal”

 

 

249. The house that was eventually built on the site to the plans of Ecotecture, was a 2-bedroom house. The original planning permission was for a 3-bedroom house and was granted on 6 January 2019. The brief had changed, but the budget remained the same. There would not be a need to revisit the terms of appointment in such circumstances, it is significant in terms of the budget although not irreconcilable. Ms Morelli wanted an “eco-house” and Mr Smith included various items on his cost plan. All of these items could be stripped out later if the client was more concerned with meeting the budget than having these elements included in the design.

 

 

250. Mr Severs confirmed that if a client made a specific request for cost information about groundworks, he would expect the architect to be under an obligation to advise if he believes the brief is not consistent with the budget. In this case, the groundwork cost is implicitly £40,000 and so no further information is necessary if that is consistent with the brief. Mr Severs stated that there is no obligation to respond to such an inquiry and provide a breakdown. If the Registered Person thought the brief was unachievable (for example, because the groundworks cost would be more than £40,000) then he would have an obligation to state this to the client.

 

 

251. The Committee referred Mr Severs to page 36 of the defence bundle and paragraph 37 of the Registered Person’s The figure for cost states “£60,000” for groundworks. Mr Severs states that this must be an error in the statement as the email referred to sets out that the figure is, by implication, £40,000. This issue had not been identified before and had not been put to the Registered Person during his evidence.

 

 

Findings of Fact

 

252. In reaching its decision the Committee carefully considered the submissions made, together with the evidence presented. The Committee also has regard to the advice of the Legally Qualified Chair that on disputed issues of fact, the onus of proof was on ARB and that the standard of proof was the civil standard of the balance of probabilities. In determining the facts, the Committee considered the evidence in the round and noted that it was entitled to draw reasonable inferences from established facts, but that it was not to speculate.

 

253. The Committee then went on to consider each allegation in turn and it makes its findings of fact as follows:

 

 

Allegation 1 – (the Mr Howard case)

 

Allegation 1.1 – the Registered Person failed to provide an adequate terms of engagement document, contrary to standard 4.4 of the Architects Code – Proved by admission.

 

Allegation 1.2 – the Registered Person failed to carry out his duties as CA appropriately and/or failed to adequately advise his client on the key requirement to have a CA in place for a JCT MW form of contract – Proved

 

254. The Committee was satisfied that the Registered Person was unclear from the outset as to the role of contract administrator and who was to undertake the contract administrator obligations. There is a conflict of evidence between Mr Howard and the Registered Person. Mr Howard was clear that he received no advice on the requirement to have a contract administrator. The Registered Person stated that Mr Howard was adamant that he did not want a contract administrator because he did not want to pay for one. It is plausible that Mr Howard would take that position as he wanted to reduce cost and he had the Registered Person as an architect who could take on that role. The JCT MW contract allows for the term contract administrator to be struck through and thereafter the architect takes on the role. This assumption of the contract administrator’s obligations by the architect was not clearly appreciated by the Registered Person.

 

255. In evidence and through the written statements of the Registered Person, it is clear that he has been confused and inconsistent about whether a contract administrator was required by the contract at all, and, if there was a contract administrator, who that was. His written statement at page 5 of the defence bundle (specifically paragraphs 24, 29, 32, 36 and 40) demonstrate his repeated assertion that he was not the contract administrator.

 

 

256. At paragraph 33 of his statement the Registered Person explains that he assumed that he was merely a “witness to the contract”. In oral evidence he conceded that he had not appreciated when drafting the contract that he had taken on the contract administrator role.

 

 

257. In paragraph 36 of his statement the Registered Person states that if he was the contract administrator that he would have “carefully considered the activities required…and discussed these in detail with Mr Howard and Mr Fry. No such discussions ever took place.” This further demonstrates the Registered Person had not addressed, at the relevant time, performing the contract administrator obligations. In further evidence the Registered Person admitted that he has limited experience of the contract administrator role.

 

 

258. In the course of these proceedings the Registered Person has realised that he was responsible for the contract administrator obligations by virtue of the striking out of the term “CA” at Article 3 of the JCT MW contract. The fact that the contract administrator duties are taken on by the architect is demonstrated in the later sections of the JCT MW contract for example at sections 2.3, 2.5, 2.7 and 2.9.

 

 

259. The Committee finds that it is more likely than not that the Registered Person could not, and did not, advise Mr Howard on the key requirement to have a contract administrator in place for a JCT MW form of contract because he did not understand that key requirement and did not appreciate that he had, in fact, assumed the contract administrator role himself at the time the contract was signed.

 

 

260. The Committee also finds that the Registered Person failed to carry out his duties as contract administrator appropriately. The admissions in his own statements that he did not take on this role and the belated realisation that he had taken on the obligations of contract administrator only after the event, demonstrate that the Registered Person did not address his mind to those obligations at the relevant time.

 

 

261. The Registered Person has sought to persuade the Committee that he had performed some of the contract administrator obligations appropriately and, in respect of other obligations, had been frustrated by the Referrer and prevented from carrying them out. This, the Committee finds, was a retrospective assessment by the Registered Person and did not reflect his considerations at the time.

 

 

262. One of the key requirements of a contract administrator is the issuance of interim certificates. The clear evidence is that Mr Smith generated 9 or more valuations during the course of the project. Each valuation should have prompted the contract administrator to produce an interim certificate. No certificates were produced or issued by the Registered Person at all. Even if there had been a delegation to Mr Smith to produce the valuations, it would be the duty of the contract administrator to issue the certificate.

 

 

263. The Committee was not persuaded by the Registered Person that there had been any effective oversight by him of the contract administrator obligations at the relevant time. For example, the Registered Person had commented “I had no input into any cost aspects of the contract”. Also, “I was not the CA and did not owe any duty to (H) in respect of costs”. These statements are incompatible with the assertions now made by the Registered Person that he had supervised the performance of this duty by Mr Smith. The Registered Person had not turned his mind to the contract administrator obligations under the contract and consequently he failed to carry out all of his duties as contract administrator appropriately.

 

 

Allegation 1.3 – the Registered Person failed to advise his client on the appropriate form of contract and/or complete the JCT MW form of contract adequately – Proved

 

264. The Committee was satisfied that the JCT MW contract did not provide for the role of a QS and would be unsuitable where a QS was instructed. The Registered Person stated he knew that Mr Smith was acting as QS and he stated Mr Smith was assisting the Registered Person to discharge his duties as contract administrator.

 

265. Furthermore, if the Registered Person is correct in his assertion that Mr Howard did not want a contract administrator at all, then the JCT MW contract was clearly the wrong choice as it requires the role of contract administrator to be fulfilled either by a contract administrator or the architect.

 

266. The Registered Person confirmed that he had not considered the alternative forms of JCT contract. The Committee found that this also supported the contention that the Registered Person had failed to advise on the appropriate form of contract. The Committee find the facts proved on this basis.

 

267. The Committee did not need to resolve the disputed facts between the Registered Person and Mr Howard as to whether there was one contract or three contracts in order to reach this finding. The facts found proven as set out above were sufficient.

 

268. The Committee also considered whether the contract had been completed adequately. The criticisms of the completion of the form are set out in the Inquirer’s report. In answer to questions from the Committee, the Inquirer confirmed that he had been mistaken in respect of many of the criticisms and the Registered Person had, in fact, completed the form correctly, albeit that Registered Person might not have appreciated the consequences.

 

Allegation 2 (the Ms Morelli case)

 

Allegation 2.1 – the Registered Person did not provide adequate terms of engagement to the Referrer contrary to Standard 4.4 of the Architects Code – proved by admission.

 

Allegation 2.2 – the Registered Person did not provide adequate cost advice in relation to the cost of the groundworks – Proved

 

269. The Committee noted that the Registered Person had never put, in writing, a specific figure for the groundworks associated with the project. The figure of £40,000 that the Registered Person relies upon as being the amount allocated to groundwork is derived from subtracting the estimated build cost of £260,000 (provided in September 2018) from the fixed budget of £300,000. There is no record of any further discussion about the cost of groundworks arising from any meeting. Of course, this is in the context of no terms of engagement being provided by the Registered Person and, by his own admission, his not having sent to Ms Morelli the RIBA form of appointment referred to in his email dated 13 September 2018.

 

270. The Committee was not persuaded that the cost information provided at was, at that point in time, inadequate cost information. The project was at a very early stage and Ms Morelli was anticipating, as she was to say in later correspondence, “rough and ready” figures.

 

271. However, by January 2019 the project had moved on and the design had evolved to include 3 bedrooms (as required by the outline planning permission) and a garage. Ms Morelli sought further cost information specifically relating to her concerns over the groundworks and the potential impact on the budget. These requests are set out in her email to the Registered Person wherein Ms Morelli was seeking assurances to resolve her, quite reasonable, concerns. The Registered Person said in his evidence and closing submissions that he was confident that he would remain within budget even though changes might be required during his “iterative” process of design. By his own admission he did not respond to Ms Morelli to share his confidence with her.

 

272. The Committee concluded that the factors that caused Ms Morelli to lose faith in the Registered Person and seek an alternative architect would have included the concerns she had about the cost of the groundwork. It was not the sole factor, but it was a significant one.

 

273. A great deal of evidence, oral and documentary, was relied upon by the Registered Person to support the contention that he was under no obligation to provide cost information. The Registered Person says that he was following the terms set out at stages 1, 2 and 3 of the RIBA Plan of Work. The Inquirer agreed that the Registered Person was compliant at stages 1 and 2 as regards cost advice, but asserts that his failure to provide Ms Morelli with a “better understanding of the design and cost implication” was the sole failing under the stage 3 requirement.

 

274. The absence of a response by the Registered Person to the email of 6 January 2019 from Ms Morelli was a failure to address a request for cost advice. This was, in the view of the Committee inadequate cost advice and the allegation is proved on that basis.

 

275. In conclusion the Committee finds the facts proved in relation to particulars1 (by admission) and 2.2.

 

Decision on Unacceptable Professional Conduct (UPC)

 

276. Having found Allegations 1.1, 1.2, 1.3, 2.1 and 2.2 proved, the Committee went on to consider whether the Registered Person’s conduct amounted to UPC.

 

277. The Committee heard submissions from Mr Foxsmith on behalf of ARB and from the Registered Person. The Committee accepted the advice of the Legally Qualified Chair.

 

278. The Committee was reminded that a finding of UPC is a matter for its own independent judgment having regard to any facts found proved. There is no burden or standard of proof.

 

279. The Committee noted that UPC is defined in section 14(1)(a) of the Architects Act 1997 as conduct which falls short of the standard required of an Architect.

 

280. The Committee further noted that Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as: “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.

 

281. 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.

 

282. 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.

 

283. The Committee also recognised that any failing must be serious. Vranicki v Architects Registration Board [2007] EWHC 506 (Admin).

 

Submissions of ARB

 

284. Mr Foxsmith made submissions on behalf of ARB that the Committee could find UPC proved in relation to all the allegations. In respect of allegations 1.1 and 2.1, it was submitted that both breached Standard 4.4 and that this is as serious breach because proper terms of engagement provide clarity as to the rights and obligations of architects and their clients. The absence of such information makes resolving disputes more difficult.

 

285. In relation to allegations 1.2 and 1.3 Mr Foxsmith submitted that these breached Standards 2, 4 and 6 in particular, displaying a lack of skill and care towards the Registered Person’s client, Mr Howard, and a failure to keep his client informed.

 

286. Mr Foxsmith submitted that allegation 2.2 was a serious breach of Standard 6.1 and 6.3 and that the seriousness could be demonstrated by the loss of faith of Ms Morelli in the Registered Person and, more seriously, the profession.

 

 

 

 

Submissions of the Registered Person

 

287. The submissions of the Registered Person on UPC referred to his personal failing concerning his familiarity and friendship with clients which “draws a veil” over matters that ought to be more formal. He expressed that he didn’t respond appropriately to Ms Morelli. He should have responded to Ms Morelli addressing the issue of cost that she had raised. He submitted however that it was neither negligent nor serious, but was an oversight. It did not cause Ms Morelli to lose faith in the profession as the very next step she took after the termination of his appointment was to instruct another architect.

 

288. In respect of the Mr Howard case, the Registered Person submitted that the way that he dealt with the Mr Howard building contract it was not a serious failing, and he maintained that he was not “deaf” to Mr Howard’s concerns. He rejected any suggestion that the project was a catastrophic failure. However, he accepted that there was a lack of effective communication but asserted that was a technical failure and not a serious failing as Mr Howard was not disadvantaged as a consequence of that.

 

289. In respect of his failing to provide adequate terms of engagement, the Registered Person submitted that it was his informal approach that resulted in his admitted failings in that regard, which he appreciated might have avoided his appearance before the Committee had he been more compliant with Standard 4.4. This applied to both cases, albeit less so with Mr Howard with whom he did not have the same level of relationship that he enjoyed with Ms Morelli. He did not accept that the failing was serious enough to amount to UPC when balanced against the quality of the work he performed.

 

290. The Registered Person asserted that he had reviewed his case files and is assured that his normal practice is to utilise a standard terms of engagement document.

 

 

Decision on UPC

 

291. In the Committee’s view, the Registered Person’s actions as set out in the factual particulars found proved breached the following standards expected of a registered Architect:

 

292. Allegation 1.1 – The Committee considers that the Registered Person’s actions fell significantly short of Standard 4.4. The requirement to provide adequate terms of engagement is a fundamental and important safeguard to ensure that architects, but especially clients, are aware of their rights and obligations. The absence of such terms can lead to difficulties in resolving disputes, as was demonstrated in this case. This failure was, in the view of the Committee, serious and amounted to UPC. There was an almost complete lack of information provided to the client that is required by Standard 4.4. The lack of formality on the part of the Registered Person led to the absence of adequate terms of engagement and that was a significant factor in the resulting disputes and confusion associated with the project.

 

293. Allegation 1.2 – The Committee considers that the Registered Person’s actions fell seriously short of Standard 2.1 and 6.1. The Committee finds that the Registered Person did not consider competently the requirement for a contract administrator or with sufficient skill and care. The Registered Person demonstrated a lack of understanding of the JCT MW contract and the implications for his roles and responsibilities as architect, resulting from the way in which he had completed Article 3 of that form of contract. This was a key aspect of the contract that he encouraged his inexperienced client to enter into. The failings were serious and had serious implications for the contract administration of the project and amounts to UPC.

 

294. Allegation 1.3 – The Committee considers that the Registered Person’s actions fell seriously short of Standard 2.1 and 6.1. The Committee is satisfied that the failure to advise on the appropriate form of contract for the project was a serious breach of his duty to act with skill, care and competence. The Registered Person demonstrated a lack of understanding of the JCT MW contract and had admitted to a lack of the necessary working knowledge of the other forms of contract that may have been better suited to the project. He provided Mr Howard with this form of contract without giving proper thought to whether it was appropriate. This presented a serious risk to the project from the outset. These failings are serious and amount to UPC.

 

295. Allegation 2.1 – The Committee considers that the Registered Person’s actions fell short of Standard 4.4. For the same reasons outlined in respect of Allegation 1.1 the Committee finds that this was a serious failure on the part of the Registered Person. The absence of adequate terms of engagement in this case resulted in Ms Morelli not having the means by which to resolve any concerns that she might have had. Notwithstanding the relationship that the Registered Person had with Ms Morelli over several previous projects, the requirement remains an important and mandatory Standard to be observed in all cases.

 

296. Allegation 2.2 – The Committee bore in mind that the finding of fact in respect of this allegation was limited to the Registered Person’s failure to respond to a single email request for more detailed cost information from his client. Although this was a failing on behalf of the Registered Person to uphold Standard 6.1 and 6.3, the Committee did not consider that this was sufficiently serious to amount to UPC.

 

297. Having found the Registered Person’s actions amounted to Unacceptable Professional Conduct (UPC) the Committee then went on to consider what, if any, sanction to impose in this case.

 

298. The Committee accepted the guidance of the legally qualified chair and considered the following case law; Fuglers & Others v Solicitors Regulation Authority [2014] EWHC 179, Rashid and the General Medical Council 2006 EWHC 886 (Admin).

 

299. The Committee noted the submissions of Mr Foxsmith that ARB did not seek to advance any particular sanction, but that the facts of this case suggested that taking no action was not appropriate. There were two findings of breaches of Standard 4.4 and that was a significant aggravating factor to consider.

 

300. The Committee noted the submissions of the Registered Person that he regretted his shortcomings and that he expressed his apologies to ARB and the wider profession. He submitted that his insight resulting from the case has been a learning experience. Even though it occurred towards the end of his career he submitted that it was not too late for him to learn from the experience.

 

301. The Registered Person explained how he intends to enrol on the RIBA Part 3 professional practice course at Bath University to renew and enhance his professional understanding and prevent any recurrence of the shortcomings that led to the complaints and adverse findings by the Committee.

 

302. He has had 46-year career without incident. He had never intended to bring about what has occurred and he is surprised at his own failings. He fears the jeopardy he has placed on his career but accepts that he brought that about and will have to deal with this himself.

 

303. He referred to awards that he has received over the course of his career and the public scrutiny that his projects have attracted. He feels humiliated by his actions.

 

304. The Registered Person submitted that he is an examiner for professional design courses and will have to review his position in light of the Committee findings. He expressed regret at his lack of understanding of the contract administrator role and assured the Committee that it will not happen again.

 

305. The Registered Person conceded that he had been distracted at the relevant time by the various media roles and associated events that his career had attracted and he now acknowledges the need to refocus on the basic elements of his practice.

 

306. The Committee sought clarification from the Registered Person in respect of some aspects of his submissions. He confirmed that the RIBA Part 3 course would cover post graduate professional and practical training. This course educates an architect in the elements of practice outside of the area of design and focusses on the administrative and legal duties of an architect. He anticipated that the course would start in September 2024.

 

307. The Registered Person was asked what steps have been taken to review his existing cases to ascertain whether there had been other cases where terms of engagement had not been handled adequately. He stated that the Mr Howard and Ms Morelli cases were aberrations and isolated from his typical cases. He had not conducted a full audit but had checked some files himself. He now always uses the “standard RIBA terms of engagement form” and has checked that this conforms to Standard 4.4.

 

308. The Registered Person was asked to comment on the impact these cases had on his clients, specifically in relation to the Committee findings on UPC. He acknowledged the finding of UPC in the Mr Howard case but asserted that the final built house was a good building. He did not know the detail of the dispute between Mr Howard and the contractor, Mr Fry. The Registered Person did not believe that significant harm was done by his actions and did not accept that his shortcomings as contract administrator caused any additional cost and Mr Howard had never complained to him about his practice during the project.

 

309. He commented that Ms Morelli was impacted far less. The Registered Person stated that he enjoyed an informal and friendly relationship with Ms Morelli until “it got stuck” over issues concerning the budget. He thought that Ms Morelli suffered little impact by way of extra cost and she was delighted to obtain planning permission. Her decision to hire other professionals was her decision and the cost of that was her choice.

 

310. The Committee took careful note of the ARB sanctions guidance 2022.

 

311. The Committee considered the following aggravating factors applied in this case.

 

312. The Committee considers that the casual and ill-informed approach to contract formation, as evidenced in Allegation 1, presented a substantial risk of harm to his client’s interests as the project had inadequate oversight at what was a complex building site. The confusion about responsibility for compliance with the CDM Regulations was a particular concern. Also of concern was the absence of the proper fulfilment of the contract administrator’s role to ensure the quality of work certified for payment exposed the client to a substantial risk.

 

313. This case included 2 matters which had similarities in respect of the failing to observe Standard 4.4. This was a repeated failing, which started to form a pattern of poor conduct but is contrasted against a long, unblemished record. As such, the Committee does not find that this could properly be described as entrenched behaviour.

 

314. The Registered Person has demonstrated limited, but developing, insight into the impact of his actions upon his clients. He has failed to fully appreciate that his failings in the selection and administration of the JCT MW had potential and actual consequences for Mr Howard, and others involved in the project, when disputes arose. Also, the Registered Person has wrongly sought, in evidence, to blame Mr Howard for his inability to properly carry out the contract administration function.

 

315. The Committee considered the following mitigating factors applied in this case;

 

316. The conduct represented failings in an otherwise long, exemplary and unblemished career.

 

317. The Committee was mindful of the expression of regret and apology for the impact upon the profession. The Committee accepts that the Registered Person, to a degree, has reflected upon his failings with a self-critical eye. s apologies though, in respect of his clients, was more limited.

 

318. The Registered Person detailed the efforts that he has made, and intends to make, to address his professional shortcomings. The Committee hopes that these efforts will advance his insight.

 

319. The Committee noted that admissions to Allegations 1.1 and 2.1 were made promptly.

 

320. The Committee carefully considered paragraph 5.8 of the ARB Sanctions Guidance. The Committee acknowledged the apology of the Registered Person during the hearing and his acknowledgement that he had not been sufficiently focussed on his clients at the relevant time.

 

321. There is no allegation of dishonesty or integrity that would militate towards a high level of seriousness, however the findings also are inconsistent with a low-level definition. The Committee finds that this case is at a medium level of seriousness.

 

322. The Commttee went on to consider the available sanctions in ascending order in accordance with section 3.1 of the Sanctions Guidance.

 

323. No Sanction. Imposing no sanction would not be appropriate and would fail to adequately mark the seriousness of the failings. The Committee therefore considered each available sanction in order from the least to the most serious.

 

324. A Reprimand may be used in relation to offences which fall at the lower end of the scale of seriousness. The Committee did not consider that this case could be described as being of lower seriousness and this sanction would be insufficient to uphold public confidence in the profession, and to declare and uphold proper standards of conduct and competence.

 

325. A Penalty Order is suitable for cases not at the lower end of the scale of seriousness that would otherwise receive a reprimand and so could apply to cases, such as this, that are assessed as being of moderate seriousness. The Committee has found that there is evidence of limited insight and that the case is too serious to warrant a reprimand. These are factors that would support this sanction being appropriate.

 

326. In order to test whether the penalty order sanction was appropriate, the Committee went on to assess the next available sanction.

 

327. A Suspension Order may be imposed for serious offences but where the circumstances are not so serious as to warrant erasure from the Register. The Committee considered that this sanction could be appropriate as there is evidence of a lack of sufficient insight or remorse. The Committee carefully considered this aspect and determined that the Registered Person demonstrated little insight into the impact of his failings upon his clients but had demonstrated developing insight into the failings themselves and had given assurances as to how those failings were being addressed.

 

328. The Committee considered whether the behaviour was likely to be repeated and took into account that, despite there being 2 separate allegations, the failings of the more serious matters of Allegation 1 occurred between 5 and 7 years ago. The Registered Person had provided some assurances as to how his practise has been reviewed and improved since then. Although the Committee could not be certain that there would not be a repetition of the behaviour, it considered that the assurances from the Registered Person were sufficient to make that prospect unlikely.

 

329. The Committee concluded that, on balance, and taking into consideration the Registered Person’s long and exemplary career hitherto, that the suspension order was not appropriate or proportionate in the circumstances of the case.

 

330. The decision of the Committee is a penalty order of £2500.

 

331. The Committee heard representations from the Registered Person on his ability to pay. He indicated that he would discharge the penalty order within 28 days.