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Dr Ghassan Kamha

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Dr Ghassan Kamha (055458H)

Held on 26 and 27 July 2017

At

ARB

8 Weymouth Street

London

W1W 5BU

———-

Present

Ms Emma Boothroyd (Chair)

Ms Judy Carr(PCC Architect Member)

Ms Jules Griffiths (PCC Lay Member)

Mr Stephen Battersby (Clerk)

———–

 

 

In this case, the Board is represented by Mr Iain Miller of Kingsley Napley.

Dr Kamha has attended this hearing but he is not legally represented.

Dr Ghassan Kamha faced a charge of unacceptable professional conduct based on the based on two allegations of fact as set out in the charges: He failed to set out terms of engagement in writing contrary to Standard 4.4 of the 2010 Code of Conduct. He placed in the public domain and on social media confidential documents obtained from his client contrary to his obligations to keep the documents confidential as set out in Standard 4.3 of the 2010 Code. The sanction imposed was a reprimand.

1. In this matter, the Board is represented by Mr Iain Miller. Dr Kamha has attended this hearing and is not represented.

2. Dr Kamha faces one allegation of unacceptable professional conduct based on two allegations of fact as set out in the charges.

3. The particulars of the allegation are:

1) He failed to set out terms of engagement in writing contrary to Standard 4.4 of the 2010 Code of Conduct.

2) He placed in the public domain and on social media confidential documents obtained from his client contrary to his obligations to keep the documents confidential as set out in Standard 4.3 of the 2010 Code.

4. No preliminary applications have been made.

5. The allegations in this case arise from a complaint made against Dr Kamha in a letter dated 8 July 2016 by the CMA Welfare Trust Limited (the Trust).

6. The background to this matter is as follows. At the material time, Dr Kamha was working as an architect at Dr Gassan Kamha & Partners. He was also a worshipper at the mosque and lived very close to the building. Towards the end of 2014, Dr Kamha was asked by the Trustees of the mosque to assist with the issues arising from a withdrawn application and also asked to work on a new design for the development of the mosque and the subsequent planning application. Dr Kamha agreed to assist on a “pro-bono” basis but the extent of the work that was to be done “pro bono” became the subject of a dispute.

7. In October 2015 the Trustees told Dr Kamha that they wished to engage another architect and invited him to submit an invoice. Around 22 October 2015 Dr Kamha rendered an invoice in the sum of £36,000. No formal terms of engagement were set out in writing and the Trust refused to pay the invoice. This remains outstanding.

8. There followed a dispute between Dr Kamha and the Trust about Dr Kamha’s fees and other matters of concern regarding the building and the project generally. It is alleged that during the course of this dispute in 2016 Dr Kamha created a Facebook page and shared confidential documents he had received whilst he was instructed by the Trust.

9. All the allegations of fact are disputed save that Dr Kamha admitted no letter of engagement was ever sent but this was because of the circumstances of the project. It is disputed that any matters either admitted or found proved amount to unacceptable professional conduct.

10. In reaching its decisions, the Committee has carefully considered all the documentary evidence presented to it in the Report of the Board’s Solicitor together with the following additional documentation received, namely; a copy of Dr Kamha’s letter of 12 July 2017 setting out his defence of the allegations.

11. The Committee heard oral evidence from Mr Akhtar.

12. At the conclusion of the Board’s case, the Committee of its own motion considered whether there was a case to answer in respect of the second charge on the basis that the evidence adduced by the Board and in particular the evidence given by Mr Akhtar about the confidential documents was not sufficient to allow the allegation to proceed. Mr Miller on behalf of the Board accepted that three of the documents alleged to have been disclosed were either not confidential, not related to the project or not in the public domain. However, he submitted that enough evidence had been presented that three of the documents were confidential and were on the internet and Dr Khama did not deny that he had published some documents. He submitted that it was a matter for the Committee to weigh up all of the evidence presented.

13. The Committee heard and accepted the advice of its Clerk. It has applied the test as set out in the case of R v Galbraith [1981] 1 WLR 1039 (as applied to regulatory proceedings) in that:

1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

2) 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;

a) Where the 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, it is his duty, upon a submission being made, to stop the case.

b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s 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.

14. Having assessed the evidence and having considered the submissions made, the Committee was of the view that there was some evidence but it was tenuous. Of the remaining three documents it was put to Mr Akhtar that two of them were readily available on the previous planning file and therefore were in the public domain and not confidential. Mr Akhtar accepted that this was possible and agreed that the previous planning file was open for inspection. Mr Akhtar agreed that the documents could have been obtained by Dr Kamha as part of that inspection process. Mr Akhtar couldn’t say what documents were given to Dr Kamha in confidence as part of the retainer. Mr Akhtar explained that he not personally seen the documents alleged to be on Facebook and listed in his witness statement. He said he had been told about the posts by other trustees. He couldn’t recall which documents those were. The Committee considered that the evidence in relation to the letter and email from Stockport Metropolitan Borough Council was inherently weak. The Committee had seen no evidence that the documents were not on the previous planning file that was open to inspection and therefore not confidential, there was no documentary evidence that they in fact appeared on the Facebook page and Mr Akhtar couldn’t say whether the documents were on the planning file or appeared on the Facebook page. The Committee also had regard to a letter from Hill Dickinson which states, “Our clients are in possession of a number of pieces of correspondence which are publicly available in the planning application file held by Stockport Metropolitan Borough Council which would support the assertion that the planning application made in 2014 blithely ignored planning guidance and pre-application advice supplied by the Council in 2012.” The Committee considered that in all the circumstances in relation to these documents the evidence to support a finding of unacceptable professional conduct was inherently weak and unreliable and it could not properly make a finding.

15. Looking at the report from Mr Lancashire dated 8 October 2015 there was evidence before the Committee that this was prepared whilst Dr Kamha was still instructed by the Trust and the report was paid for by the Trust. The Committee considered that this was a confidential document. There was a further report prepared by Mr Lancashire dated 24 November 2015 and this was paid for by Dr Kamha and it is accepted that this is not confidential. It is also accepted that Dr Kamha distributed this second report to people outside the Mosque. There was no documentary evidence that the earlier confidential report appeared on the Facebook page and Mr Akhtar could not say whether it was this document that had been on the Facebook page. The Committee considered that in all the circumstances in relation to this document the evidence to support a finding of unacceptable professional conduct was inherently weak and unreliable and it could not properly make a finding.

16. There was no other evidence that Dr Kamha placed confidential documents in the public domain. The Committee therefore finds that in all the circumstances the second charge could not amount to unacceptable professional conduct and so it is dismissed.

17. The Committee went on to consider the remaining allegation and carefully considered the submissions made today by both Mr Miller and by Dr Kamha, and the evidence given by Dr Kamha and Mr Akhtar under oath. It has heard and accepted the legal advice given by its Clerk.

18. In reaching its decisions, the Committee has had had regard to the fact that the burden of proof in this case is on the Board and that the civil standard applies, namely proof on the balance of probabilities. It has had regard to the fact that deciding whether Dr conduct amounts to unacceptable professional conduct is a matter for its professional judgement.

19. Turning to the allegation, the findings are as follows; the Committee finds the facts of allegation 1 proved. The reasons are as follows:

– No terms of engagement were ever sent. Dr Kamha explained that initially he agreed to work for free when he was approached in September 2014 to deal with the issues arising from the previous planning application. Dr Kamha then explained that it was agreed orally that he would be paid for the design work and that this would be on a percentage basis but before he prepared a contract the Trust dispensed with his services. Dr Kamha said that there was no need for a contract initially because he considered that he could trust the people he was dealing with and there was a lack of clarity about what the Trust wanted. Dr Kamha explained that by the time he was urging the trustees to enter into a written contract in or around July 2015 there was a delay because of various events and he did not begin drafting it until October 2015. The Trust then dispensed with his services before the contract was produced.

20. The Committee considers that this situation was slightly unusual but not uncommon and it has had regard to Dr Kamha’s reasons for not initially sending the terms of engagement and then the later delay. The Committee considers that this is possibly mitigation but it does not change the position that no terms were ever sent. As such, the Committee has concluded that Dr Kamha failed to set out the scope of his work or include any of the matters required. This is not disputed by Dr Kamha.

21. The Committee went on to consider whether Dr Kamha was obliged to set out his terms in writing given the nature of his relationship with those at the Trust. The Committee concluded that the terms of Standard 4.4 of the Code are clear and the fact that there was a close personal connection to the project and those involved, the fact that no written terms of engagement were requested, together with the fact that Dr Kamha had agreed to do some of the work for free does not abrogate him of his responsibility to ensure that his client had been adequately informed of the terms of his appointment in writing.

22. At outset of Dr Kamha commencing professional work in September 2014 the Committee considers he should have sent a terms of engagement letter setting out the matters required in Standard 4.4. In this case there were a number of individuals giving instructions and there was a lack of consistency in those instructions. It was important in this situation to ensure his client, (the Trust) knew exactly what professional work he was doing and the likely costs involved.

23. The effect of not sending the terms of engagement was that the Trust was not aware of the level of work Dr Kamha had carried out and the costs involved. Mr Akhtar said in his evidence that he thought Dr Kamha had only undertaken preliminary sketches or concept design. He appeared unaware that all of the work up to the planning stage had been completed. He said in his evidence that more detailed technical drawings would have been needed.

24. Mr Akhtar said in his evidence they were surprised to receive an invoice for the amount claimed. He said that he thought that the bill would be for around £2000 to £3000 which is what Dr Kamha had suggested they pay the second architect for what they thought was similar work. Because of this the Trust did not agree to pay Dr Kamha’s fees and agreed only to pay £2000 to £3000 as they considered this reflected the work that had been done. Whatever the reasons for the termination of Dr Kamha’s instructions the Committee considers the lack of terms of agreement contributed to the dispute between him and the Trust.

25. The requirement to send a letter of engagement is to protect both parties and in failing to send such a letter Dr Kamha placed himself and the Trust at risk. Dr Kamha explained that he had made a significant financial loss including having to pay third party fees because there was no agreement as to who was responsible for paying for third party fees. Although Dr Kamha stated he notified his broker about the project, the Trust was at risk of the insurer not paying any claim because of the lack of a written agreement.

26. For the reasons stated above, the Committee has concluded that Dr Kahma’s conduct was in breach of standard 4.4 of the Code.

27. In the light of its findings of breaches of the Code as set out above, the Committee is satisfied that Dr Kamha’s conduct fell short of the standard required of a registered person. The Committee considers that regardless of his desire to assist on an informal basis there was a professional obligation at the heart of every relationship between client and architect, whether paid or not, to set out clearly the terms covered in Standard 4.4. The Committee considers Dr Kamha’s failure to adhere to this professional obligation regardless of his reasons for doing so amounts to unacceptable professional conduct.

28. Dr Kamha then spoke in mitigation. He provided the committee with two testimonials.

29. In reaching its decision, and in considering whether to impose a sanction, the Committee has had regard to the public interest, the need to protect the public, to maintain the collective reputation of the profession and to declare and uphold proper standards of conduct and performance. Its purpose is not to be punitive. The Committee has also taken into account Dr Kamha’s interests and the indicative sanctions guidance and the need to act proportionately. It has carefully considered the representations Dr Kamha made.

30. The Committee has had regard to the fact that Dr Kamha has engaged and cooperated fully with the process and attended this hearing. The Committee appreciates that this process has had an adverse effect on Dr Kamha and he have said that he has suffered reputational damage and loss of work. The Committee also took account of the fact that Dr Kamha has not benefitted financially from this work and has suffered a financial loss.

31. The Committee had regard to Dr Kamha’s genuine expression of remorse and his apology to the Committee. He explained that you has learned a valuable lesson from this experience and in the future he would ensure that terms of engagement were sent at the beginning of every job.

32. The Committee has taken into account that Dr Kamha has no adverse regulatory findings made against him in a career spanning some 30 years. The Committee noted the content of the testimonials which spoke highly of his honesty and integrity and professionalism.

33. The Committee accepts that Dr Kamha’s actions were not deliberate. The Committee accepts that his failure was a result of the unique nature of the relationship with the Trustees and his desire to assist in some part on a pro bono basis. However, the failure had the consequence of leading to a dispute because the Trustees were not clear what his fees would be. The Committee has had regard to the fact that Dr Kamha’s fees were not in fact paid by the Trust and there is no evidence that it has suffered any loss as a result.

34. The Committee has first of all considered whether no sanction should be imposed but considered that as Dr Kamha has been found guilty of a fundamental breach of the Code, governing the relationship between architect and client, it would be inappropriate for that not to be marked by the imposition of a sanction. The Committee has then considered whether to impose a reprimand.

35. The Committee had regard to the ISG and noted that a reprimand is appropriate where the following factors are present:

– Evidence that the conduct has not seriously affected clients;
– Insight into failings;
– Genuine expression of regret;
– Corrective steps taken;
– Previous good disciplinary history;

36. The Committee considered that although the Trust was shocked to receive the invoice their interests have not been seriously affected by the lack of terms of engagement. In the Committee’s view Dr Kamha has demonstrated some insight and assured the Committee that there would be no repetition of the conduct. There was a genuine expression of remorse and regret and Dr Kamha has had a long and unblemished professional career.

37. The Committee balanced this with the need to ensure that the public interest and the reputation of the profession were upheld. In all the circumstances the Committee considered that a reprimand was the appropriate and proportionate sanction.

38. The Committee considered in this case that a penalty order was not warranted and would be disproportionate in the circumstances.

39. That concludes this determination.

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