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Mr James Rooney

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr James Rooney (049492E)

Held on 1 March 2017

At

ARB

8 Weymouth Street

London

W1W 5BU

———-

Present

Ms Emma Boothroyd (Chair)

Mr David Kann (PCC Architect Member)

Mr Stephen Neale (PCC Lay Member)

Ms Fiona Barnett (Clerk)

———–

Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of ARB.

Mr Rooney attended in person.

 

  1. The Board is represented by Mr Jonathan Goodwin. Mr Rooney has attended this hearing and is not represented. Mr Rooney faces a charge of unacceptable professional conduct (UPC) based on one allegation in that:

 

  • Failed adequately, or at all, to enter into a written agreement with his client prior to undertaking any professional work, detailing the matters particularised in standard 4.4 and/or 4.6 of the Code.

 

and that by doing so, the respondent acted in breach of 1.1,3.1, 3.3,3.4 and 4.1 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).

 

Background:

 

  1. This case arises out of a complaint made by CM, (“the Complainant”) in respect of the professional services carried out by the Respondent.

 

 

  1. The allegations that form the background to this case are that in 2013, the Respondent was instructed to assist with regard to a change of use application from commercial to residential and with designing an extension.

 

  1. The Respondent provided the complainant with a “fee scale” in September 2013 when he was first instructed. It is alleged that written terms and conditions were not provided by the respondent to the complainant as required by the Code.

 

  1. Drawings were produced by the Respondent and an application for planning was submitted in December 2013. Around this time the relationship between the complainant and the respondent was deteriorating. In January 2014 the respondent submitted his invoice for the work on the basis of the “fee scale” previously sent to the complainant. A dispute arose between the complainant and respondent about the fees charged. The complainant said she did not understand how the fee had been arrived at and thought it was unreasonable.

 

  1. Eventually, the complainant referred the matter to the ARB about the respondent and stated that she had never had a written agreement or any terms and conditions and she was shocked to receive the invoice.

 

  1. The allegation is admitted. It is further admitted that this failing amounts to unacceptable professional conduct (“UPC”).

 

 

Findings of fact:

  1. In reaching its decisions, the Committee has carefully considered the submissions of the parties, together with the documentary evidence presented to it in the Report of the Board’s Solicitor, the 51 pages of documents exhibited to it and the respondent’s written responses to the allegations together with its exhibits.

 

  1. Mr Rooney asked the Committee to consider an email from Simon Howard Professional Standards Manager at the ARB sent on 8 October 2015. Mr Goodwin did not object to this document being introduced late and the Committee considered it was relevant and fair to consider the document.

 

  1. 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 UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.

 

The Committee makes the following finding of facts:

 

  1. Allegation 1:

The Committee finds the facts proved for the following reasons:

 

The Respondent has admitted that he did not furnish the Complainant with written terms of engagement. Although the respondent had provided the complainant with a “fee scale”, this was not enough to meet the requirements of the Code. The Respondent accepts that what he provided to the Complainant did not fully comply with standard 4.4 of the Code.

 

Standard 4.4 of the Code states:

 

You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:

  • the contracting parties;
  • the scope of the work:
  • the fee or method of calculating it;
  • who will be responsible for what;
  • any constraints or limitations on the responsibilities of the parties
  • the provisions for suspension or termination of the agreement;
  • a statement that you have adequate and appropriate insurance cover as specified by the Board;
  • your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration).

 

Standard 4.6 of the Code states:

 

You are expected to ensure that your client agreements record that you are registered with the Architects Registration Board and that you are subject to this Code; and that the client can refer a complaint to the Board if your conduct or competence appears to fall short of the standards in the Code.

 

  1. The Committee has borne in mind that not only must terms of engagement be in writing and contain all the necessary terms, but the onus is on the architect to provide them to the client before any professional work is carried out. This clearly did not happen in this case and this is accepted by the Respondent.

 

  1. The Committee therefore finds the facts of this allegation proved and that the respondent acted in breach of standard 4.4 and 4.6 of the Code.

 

  1. Having found the allegation proved, 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 or 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.

 

  1. 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”.

 

  1. Any person who retains an architect should be informed about the scope of the work that will be done by the architect, the fee or method of calculating it for which they will be liable, what they will be responsible for and other important matters. This information is of crucial importance to the parties, so that in advance of the engagement of the architect the client knows and agrees to these matters. Setting out compliant terms of engagement identifies each party’s responsibilities and obligations and ensures clarity for both parties. These are core obligations of an architect. Compliance with the Code would undoubtedly have gone some way to avoiding the difficulties and breakdown in the architect / client relationship that occurred in this case given the complainant’s concern about fees rendered to her and what the responsibilities of the respondent were. The Complainant had received an unexpected invoice where she was not clear what work she was paying for. Compliance with Standard 4 from the outset would have gone some way to avoiding the dispute that followed. In the circumstances, the Committee finds the Respondent’s failure to comply with Standard 4 to be a substantial falling short of the standard expected of a registered architect.

 

  1. It is the Committee’s finding that the facts found proved and corresponding breaches of the Code, both individually and collectively, are serious and adversely impact both on the reputation of the architect and the profession generally. They represent a standard of conduct falling materially below the standard expected of a registered architect.

 

  1. In all the circumstances and for the reasons set out above, the Committee finds that the Respondent’s conduct does amount to unacceptable professional conduct.

 

  1. Having heard from the Respondent in mitigation the Committee then considered whether to impose a sanction, and if so, which one. 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. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

 

  1. The Committee has identified the following mitigating factors:

 

  • that Mr Rooney has no adverse regulatory history in his 35 year career;
  • this was an isolated incident which occurred several years ago without repetition since;
  • he has fully engaged in the regulatory process and made full admissions;
  • he has demonstrated insight into his failings to the extent that he has taken remedial steps to reduce the risk of a similar failing recurring in future by ensuring that his written terms and conditions are sent at the outset of every project;
  • the contents of the several testimonials provided to the committee about his professionalism;
  • there was no financial gain and indeed Mr Rooney has not received any fee for his work to date;
  • he has expressed contrition and remorse;

 

  1. The Committee has identified the following aggravating factors:

 

  • that the Complainant was shocked and upset to receive an invoice for the amount claimed and was unsure what work had been done to justify the fees;
  • this was a fundamental failing involving one of the core duties of an architect on which the architect/client relationship is based.

 

  1. Taking into account all the aggravating and mitigating circumstances and looking at all the facts in the round, the Committee is of the view that the risk of repetition of the UPC found proved is low.

 

  1. However, the Committee notes that the matters found proved are serious to the extent that Mr Rooney’s failings diminish 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 importance of complying with the professional obligation to supply fully compliant terms and conditions to clients at the outset, cannot be overstated. The Committee has reminded itself as to its findings regarding the seriousness of the matters found proved. Having done so, 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.

 

  1. The Committee first considered whether to impose a reprimand. Having considered the Indicative Sanctions Guidance and the factors detailed above, the Committee considered that such a sanction is appropriate and proportionate.

 

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

 

  1. That concludes this determination.
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