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Mr David Edward King

THE ARCHITECTS REGISTRATION BOARD PROFESSIONAL CONDUCT COMMITTEE

In the matter of Mr David Edward King (033091D) held on 8 September 2014

at ARB 8 Weymouth Street London W1W 5BU

—————–

Present: Mr Julian Weinberg (Chair) Mr Donal Hutchinson (PCC Architect Member) Ms Barbara Saunders (PCC Lay Member) Mr Stephen Battersby (Clerk to the PCC)

—————–

Mr Nick Leale of Blake Morgan appeared on behalf of the ARB. Mr King did not attend and was not represented.

1. In this case, the Board is represented by Mr Nick Leale. Mr King has not attended this hearing and is not represented. Mr King faces one charge of unacceptable professional conduct based on two allegations in that: 1.1 he failed to act impartially in administering the Joint Contract Tribunals (JCT) contract in his role as client, architect and contract administrator contrary to standard 6.4 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”);

1.2 he altered his copy of the JCT contract after signature and without the complainant’s knowledge and that to do so was (i) misleading and (ii) dishonest contrary to Standard 1 of the Code.

2. Prior to the case being opened, Mr Hutchinson, the Architect member of the Committee, informed the Committee that he had previously disclosed a potential conflict to the Board. His practice was based in the locality of the Respondent’s and that as a representative of RIBA many years ago, he had some contact with the Respondent. The Respondent had not previously been contacted about this potential conflict, but was telephoned and emailed today. Mr Howard of ARB produced an attendance note of a telephone conversation he had with the Respondent at 11.10am which states: “I called Mr King and explained the notice of a potential conflict of interest that had been raised by Donal Hutchinson. Mr King did not recollect any personal dealings with Mr Hutchinson, although his name was vaguely known to him. He was clear that he had no objection to Mr Hutchinson sitting on the PCC panel considering the case against him”.

3. In an email timed at 12.04 today, the Respondent confirmed the earlier telephone conversation to state “I do not know Mr Hutchinson. I therefore have no objection to register”.

4. Having considered the above and having accepted the advice of the Clerk and the need for the Committee to be fair and impartial, the Committee concluded that there was no prejudice in Mr Hutchinson continuing to sit on the Committee and that there was no real or perceived bias by him continuing to do so.

5. Mr King not having attended the hearing, the Committee then considered whether notice of the hearing had been served in accordance with Rule 6 of the Professional Conduct Committee Rules (“the Rules”). Mr Leale submitted that notice, containing the required information, had been served on the Respondent by a letter dated 23 June 2014, more than the 42 days as prescribed by the Rules. Having heard and accepted the advice of the Clerk, the Committee is satisfied that notice had been served in accordance with the Rules.

6. The Committee then considered whether to proceed in his absence. The Committee applied Rule 11 of the Rules, the principles set out by the Court of Appeal in R v Hayward [2001] EWCA 168, R v Jones (Anthony William) [2003] 1 AC 1 and Tait v. The Royal College of Veterinary Surgeons [2003] UKPC 34.

7. The Committee paid particular attention to the following factors in deciding whether it is in the interests of justice to proceed:

7.1 The nature and circumstances of the respondent’s absence and in particular whether the behaviour may be deliberate and voluntary;

7.2 Whether, despite the respondents being absent, they have expressed a wish to be represented at the hearing;

7.3 The extent of the disadvantage to the respondents in not being able to give evidence having regard to the nature of the case;

7.4 The seriousness of the allegations;

7.5 The general public interest and in particular the interests of any victims or witnesses, that a hearing should take place within a reasonable period of time to which it relates.

8. The Committee exercised the utmost care and caution in reaching its decision, and has carefully considered the overall fairness of the proceedings. It balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner.

9. In reaching its decision, the Committee has had regard to the contents a letter from the Respondent to the Board dated 25 March 2014 in which he stated that he did not wish to be involved in the work and expense of “assembling witnesses, getting subcontractor statements, arranging and paying lawyers and other experts”. The Committee has also considered the contents of an email from the Respondent dated 20 August 2014 in which, having re-stated his wish to resign from the register, he stated that that “whatever decision is reached, even if the complaint is dismissed, I no longer have any interest or need to be informed”. In an email dated 23 August to the Board, he stated “I have made my resignation clear and I have no wish to receive any further communications from ARB”.

10. Given the contents of the correspondence, the Committee was satisfied that the Respondent had been given an adequate opportunity to make arrangements to appear before the Committee to argue his case in person and that he has chosen to voluntarily absent himself. The Committee saw no evidence that led it to conclude that by adjourning the matter, the Respondent would attend the hearing on any future date and the Committee noted that the Respondent had not sought an adjournment in any event. The Committee had also borne in mind that the Complainant attended the hearing to give evidence. Taking all these factors into account, the Committee has concluded that it is fair and in the interests of justice to hear the case in his absence. Background:

11. This case arises out of a complaint made by Mr P (“the Complainant”) on 20 March 2013 in respect of the professional services carried out by the Respondent. The Complainant is the Director of a company “DEL”.

12. The background to this case is that the Complainant and the Respondent entered into a JCT Minor Works Contract for a sum in excess of £300,000 to build a bungalow on the grounds of the Respondent’s property. The Respondent was not only the client, but also the Architect and the Contract Administrator. As the project progressed, the scope of the works materially grew. An informal extension of time was granted to DEL to complete the works, but a formal subsequent request for a further extension was refused by the Respondent.

13. Around June 2012, the Respondent, having sold his house, asked the Complainant if furniture could be stored in the bungalow. The Complainant agreed to this request provided a Practical Completion Certificate was issued. The Respondent confirmed that he would issue a Partial Completion Certificate. Around this time, the Complainant also raised his concerns about the potential conflict of interest in the respondent being architect, contract administrator and the client.

14. It is alleged that the Respondent, having moved his furniture into the bungalow, then refused to issue a Partial Completion Certificate.

15. In August 2012, the Complainant submitted a valuation for works. Very shortly after receiving this, the Respondent issued a termination notice on DEL.

16. DEL did not agree with the termination and issued court proceedings to recover unpaid monies, but the Respondent sought to have proceedings set aside so that the case could be heard by arbitration instead. In support of the application, the Respondent produced his copy of the contract which reflected that the arbitration clause had been marked. This did not match the Complainant’s copy of the contract. It is alleged that the Respondent had subsequently altered his copy of the contract as the Complainant denied he had contractually agreed to arbitration. The District Judge found the claim in favour of DEL.

17. All the allegations are denied.

18. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant together with the documentary evidence presented to it in the Report of the Board’s Solicitor together with the 402 pages of documents exhibited to it which includes the Respondents’ written responses to the allegations. It has also considered the contents of the Respondent’s letter dated 25 March 2014.

19. The Committee has accepted the legal advice given by the Clerk. It has 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. Whether the conduct alleged amounts to unacceptable professional conduct is a matter for the Committee’s judgement.

20. The Committee makes the following finding of facts: Allegation 1:

21. The Committee finds this allegation proved for the following reasons.

22. The Complainant gave evidence that late additions to the contract required DEL to make an application for an extension of time under the contract. He states that it was unfairly refused. As a result, he considered that DEL had “no voice” under the contract.

23. In addition, he stated that, as the project neared completion, the Respondent asked to store his furniture in the property so he could avoid storage fees. Whilst the Complainant stated that this would constitute some beneficial use of the property, he agreed to the proposal but on the condition that the Respondent would issue a Practical Completion Certificate, to which the Respondent agreed. However, the Respondent issued a non-completion certificate as a result of which, the Complainant raised health and safety concerns as access to the property was being restricted. He also raised concerns about the respondent’s failure to issue the Practical Completion Certificate. As a result, the respondent sought to terminate the contract which the Complainant states was done unfairly. 24. The Complainant also relies on an email dated 16 July 2012 confirming that he had agreed with the Respondent that a surveyor would be appointed to adjudicate on the dispute. However, he alleges that the Respondent simply took advice from a building surveyor over dinner with a set of questions, produced unilaterally.

25. The Respondent in his written representations states that the Complainant was always aware of his position as client, Architect and contract administrator from the outset. He states that the contract was terminated due to delay in completion of the building works and that he refused the application for an extension of time to complete the works as it was unwarranted. In any event, he states that the contract allowed for a two month delay without penalty which, he asserts, demonstrates his impartiality.

26. So far as the completion certificate is concerned, the Respondent states that the offer was made on the condition that DEL completed specified works within three weeks which was not done. He states that consultations with a Chartered Surveyor and a health and safety consultant and his son who was also an architect, further demonstrates his impartiality.

27. Having carefully considered the evidence, the Committee firstly concluded that a potential conflict of interest was likely given that the Respondent was the client, the architect and the contract administrator. The Complainant accepted in evidence that this did not unduly concern him at the time as, in effect, he trusted the Respondent.

28. The issue for the Committee to make a finding upon is whether, in the circumstances, the respondent failed to act impartially. The Committee finds that the Respondent did fail to act impartially in the following respects:

28.1 Having agreed that a surveyor would adjudicate in the dispute between the parties, the Respondent failed to instruct a wholly independent surveyor, instead taking advice from a friend over dinner. The Committee does not consider that such advice was obtained by way of “an arm’s length” professional instruction, but from an individual with whom the Respondent had a connection.

28.2 Having agreed in his letter dated 23 July 2012 to the Complainant that “A certificate for Partial Completion will be issued on 26 July when we will move our furniture into the new building”, he then stated in his letter of 3 August 2012 that “I am unable to issue a certificate of partial completion and in consequence of the foregoing it is now necessary for me to formalise the position by the issue of this letter as a ‘Certificate of Non-completion”. Whilst the respondent explains this change of approach by stating that various required elements had not been completed, he nevertheless failed to remove his furniture.

29. The Committee makes no finding regarding whether the Respondent failed to act impartially by way of refusing the requested extension of time for completion of building works because the outstanding works have been insufficiently particularised. In the circumstances, the Committee cannot be satisfied to the relevant standard as to what works were required to be completed and whether sufficient time had previously been allowed to complete them.

30. By virtue of those matters found proved at the numbered paragraphs above, the Committee finds that the respondent has acted in breach of standard 6.4 of the Code. Allegation 2:

31. The Committee finds this allegation not proved for the following reasons:

32. The Complainant gave evidence that following termination of the contract, he issued a summons for unpaid fees. Solicitors on behalf of the Complainant sought to stay the proceedings on the ground that the matter should be dealt with by arbitration. The Complainant states that his copy of the contract did not have the arbitration clause marked up but that the copy shown to him in court did. He was adamant that he had checked his copy of the contract and that he would not have agreed to arbitration and that the copy he signed did not mark up the arbitration clause. He asserts that that the clause was amended by the Respondent after signature and without his knowledge to assist the respondent in his application to the court.

33. The Respondent refutes the allegation and asserts in his written representations that the changes are simply pencilled annotations made during discussions before signature. He suggests that an arbitration clause would have applied equally to both parties and that there would therefore be nothing to gain by inserting the clause.

34. The Committee has borne in mind that this matter was considered by the court and has had sight of a Note of Judgment. The Judge, having heard evidence from both parties, concluded: “On the evidence that I have heard, I cannot make a finding that Mr King altered the version of the contract on which he relies after the Claimant had signed but on a balance of probabilities I find that the formation of the contract was chaotic. I am satisfied that there was no agreement for disputes to be referred to arbitration. It is also interesting that most of the markings on the version of the contract on which the Defendant relies, but not on that which he signed, are in pencil……The pencil entries and rubbings out or their inking over mean that I cannot be satisfied that Mr P… signed it with the deletion which incorporated the arbitration in place”.

35. The Committee finds on the balance of probabilities that the Board have not discharged the burden of proof in respect of this allegation. Notwithstanding the Complainant’s insistence that his signed copy of the contract did not contain the disputed wording, the Committee considers it improbable that the Respondent, had he wished to suggest that the term had been marked up, would have amended the contract in pencil rather than pen. The Committee therefore accepts on balance the Respondent’s representation that the pencilled mark-up was nothing more than an informal annotation. Furthermore, it cannot be satisfied to the required standard that the words were added after the Complainant’s signature of his copy of the contract. In the circumstances, the Committee has not gone on to consider whether his actions were misleading or dishonest.

36. Having found the first allegation proved and having determined that Mr King has breached Standard 6 of the Code, the Committee went on to consider whether the Respondent’s conduct amounts to unacceptable professional conduct. This is defined as conduct which falls short of the standard required of a registered person. In reaching its finding, the Committee has carefully considered all the evidence presented to it, all submissions made, and has accepted the advice from the Clerk. The Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings. 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.

37. The Committee has considered the authority of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.

38. The Respondent’s position as client, architect and contract administrator presents an obvious potential for a conflict of interest which the respondent should have confirmed to the Complainant in writing. Failing to act impartially when a dispute had arisen between himself and the Complainant in these circumstances, amounts, in the Committee’s view, to a substantial departure from the standard expected of an architect. As such, the Committee finds that the Respondent’s conduct does amount to unacceptable professional conduct.

39. The Committee then considered whether to impose a sanction. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the Indicative Sanctions Guidance and the need to act proportionately, taking into account all the aggravating and mitigating factors in this case. In doing so, the Committee has exercised its own independent judgement.

40. The Committee has identified the following mitigating factors:

40.1 That the Respondent has no regulatory history in his 50 year career although the Committee notes that the respondent has not been provided with any testimonials or references that might assist in mitigation;

40.2 he has engaged in the regulatory process to the extent that he has submitted written representations to the Committee; 41. However, the Committee has identified the following aggravating factors:

41.1 He has not demonstrated insight into his failings nor has he made a genuine expression of regret; 41.2 He took advantage of his professional position to the detriment of DEL.

42. The Committee notes that the matters found proved are serious. Acting impartially is a fundamental requirement of an architect and a failure to do so diminishes both his reputation, and that of the profession generally. The Committee is mindful of its role to declare and uphold proper standards of conduct and behaviour. The Committee concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

43. The Committee first considered whether to impose a reprimand but having considered the indicative sanctions guidance and the aggravating and mitigating factors detailed above, the Committee considered that his failings were too serious for such a sanction. The Committee then considered whether to impose a penalty order. Taking into account all the circumstances of this case, the Committee considered that such a sanction would be appropriate and proportionate. The Committee therefore imposes a penalty order in the sum of £1,000 which reflects the gravity of his failings which sum should be paid within 28 days.

44. The Committee considered whether to impose a suspension order but considered that in the circumstances, such an order was disproportionate given that a penalty order was a sufficient sanction to protect the public and the public interest.

45. That concludes this determination.

-ENDS

The Committee met again on the 29 January 2015 to consider Mr King’s non-payment of the penalty order.

THE ARCHITECTS REGISTRATION BOARD PROFESSIONAL CONDUCT COMMITTEE

In the matter of Mr David Edward King (033091D) held on 29 January 2015

at Chartered Institute of Arbitrators 12 Bloomsbury Square London WC1A 2LP

—————–

Present: Mr Julian Weinberg (Chair) Ms Judy Carr (PCC Architect Member) Mr Stephen Neale (PCC Lay Member) Mr Stephen Battersby (Clerk to the PCC)

—————–

1. In this case, the Board is represented by Ms Kristen Hewett. Mr King has not attended this meeting and is not represented.

2. Mr King not having attended the meeting, the Committee first considered whether Mr King had been given notice of the meeting. Ms Hewett submitted that Mr King had been made aware of the meeting. On 8 December 2014, Mr King emailed the Board to say that he was considering whether to appear at the meeting on 29 January 2015. Having heard and accepted the advice of the clerk, the Committee is satisfied that Mr King has had due notice of the meeting.

3. The Committee then considered whether to proceed in his absence. The Committee has applied Rule 11 of the Rules, the principles set out by the Court of Appeal in R v Hayward [2001] EWCA 168, R v Jones (Anthony William) [2003] 1 AC 1 and Tait v. The Royal College of Veterinary Surgeons [2003] UKPC 34.

4. The Committee has paid particular attention to the following factors in deciding whether it is in the interests of justice to proceed:

4.1 The nature and circumstances of the respondents’ absence and in particular whether the behaviour may be deliberate and voluntary;

4.2 Whether, despite the respondent being absent, he has expressed a wish to be represented at the hearing;

4.3 The extent of the disadvantage to the respondent in not being able to give evidence having regard to the nature of the case;

4.4 The seriousness of the allegation;

4.5 The general public interest that a hearing should take place within a reasonable period of time to which it relates.

5. The Committee has exercised the utmost care and caution in reaching its decision, and has carefully considered the overall fairness of the proceedings. It has balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner.

6. In reaching its decision, the Committee has had regard to the contents a letter from the Respondent to the Board dated 25 March 2014 in which he stated that he had no confidence that he could expect a fair and unbiased hearing. The Committee has also considered the contents of an email from the Respondent dated 20 August 2014 in which, having re-stated his wish to resign from the register, he stated that that “whatever decision is reached, even if the complaint is dismissed, I no longer have any interest or need to be informed”. In an email dated 23 August to the Board, he stated “I have made my resignation clear and I have no wish to receive any further communications from ARB”.

7. On 8 January 2015, the Board wrote to Mr King confirming the date and time of the hearing and also sought confirmation as to whether he would be attending. He has neither requested an adjournment of the meeting, nor has he given an explanation for his non-attendance save for the fact that on the 25 January 2015, he emailed the Board to state that saw “little point” in attending.

8. Given the seriousness of the allegation against the Respondent and taking into account the contents of the correspondence, the Committee is satisfied that the Respondent has been given an adequate opportunity to make arrangements to appear before the Committee to argue his case in person and that he has chosen to voluntarily absent himself. The Committee saw no evidence that led it to conclude that by adjourning the matter, the Respondent would attend the hearing on any future date and the Committee notes that the Respondent has not sought an adjournment in any event. Taking all these factors into account, the Committee has concluded that it is fair and in the interests of justice to hear the case in his absence.

Background

9. On 8 September 2014, a Committee of the Professional Conduct Committee (“PCC”) found Mr King guilty of unacceptable professional conduct, pursuant to Sections 14(1) and 14(3) of the Architects Act 1997 (“the Act”). After careful consideration, that Committee concluded that the appropriate sanction was a penalty order in the sum of £1000. The Committee ordered that sum to be paid within 28 days of notice of that decision. On 11 December 2014, the Board wrote to Mr King advising him of the Committee’s findings, the sanction it had imposed and that he could appeal the decision within three months of the date of the hearing. He was also advised of his right to make an application to vary the terms of the order. To date, Mr King has not taken any steps to appeal against the PCC’s original findings or penalty. In addition, despite Rule 11(d) of the Rules providing an additional safeguard, namely that an absent Respondent may apply for a rehearing in certain circumstances, Mr King had not availed himself of that provision.

10. On 11 November 2014, the Board wrote to Mr King noting that the penalty order had not been complied with. The letter confirmed that no application had been received to vary the payment terms of the order and that the deadline for payment had passed. In the light of Section 16(4) of the Architects Act 1997, his case would be referred back to the PCC for further consideration, and that the PCC had power under the Act to suspend him or erase his name from the Register of Architects.

11. The Committee has borne in mind the adverse impact, in the eyes of the public, on the reputation of both the profession and the PCC were the sanction it had previously imposed to be ignored. The Committee is mindful that the Act permitted, but did not require, the imposition of either suspension or erasure following non-payment of a penalty order. In considering whether it would be proportionate to take either of these steps, the Committee should take account of the likelihood of the penalty ever being paid, the protection of the public and possible damage to the reputation of the Board, the profession and the PCC were an architect to fail to pay a penalty order. In reaching its decision, the Committee gave careful consideration to all the matters presented by the Board in its report, and took account of the Clerk’s legal advice when considering the evidence presented and the options open to it. Mr King has not made any representations to the Committee.

12. The Committee first considered whether it would be proportionate to apply either of the orders available pursuant to Section 16(4) of the Act or whether to take no further action. The Committee took into account the contents of such correspondence as has been received from Mr King. The Committee noted that in the Respondent’s email of 22 November 2014 that he “vigorously disputed the claim”. Having done so, it regarded the prospects of the penalty being paid in full or in part, as low. The Committee concluded that the penalty order previously imposed against Mr King was therefore insufficient to protect the public and the reputation of the profession and that a further sanction was therefore appropriate and proportionate.

13. The Committee considered whether to impose a suspension order against the Respondent but considered that, given the Respondent’s wilful failure to comply with a sanction imposed by his regulator, that this matter was too serious for such a sanction.

14. Taking into account of the potential damage to the reputation of the Board, the profession and the PCC in the eyes of the public were its sanctions not enforced, the Committee concluded that only an erasure order would be appropriate or proportionate. The Committee is satisfied that any lesser sanction would undermine confidence in the profession or the ARB as its regulator. The Committee recommends that the Respondent is not eligible to apply for re-entry to the profession for a period of two years after payment in full of the penalty order originally imposed against him on 8 September 2014.

15. That concludes this determination. -ENDS-

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