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Mr Jonathan Llewellyn

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr Jonathan Llewellyn (059841K)

Held on 26 June 2017

At

ARB

8 Weymouth Street

London

W1W 5BU

———-

Present

Mr Julian Weinberg (Chair)

Mr David Kann (PCC Architect Member)

Mr Martin Pike (PCC Lay Member)

Ms Rosemary Rollason (Clerk)

In this case, the Board is represented by Mr Mathew Corrie of Blake Morgan.

Mr Llewellyn has attended this hearing but he is not legally represented.

Mr Llewellyn faces a charge of unacceptable professional conduct (“UPC”) based on two allegations in relation to breaches of standard 9 of the Architects Code: Standards of and Practice 2010 (“the Code”) in that he:

1. Whilst acting as a director of Maya Studio Limited (“the Company”), failed to ensure that the Company’s professional finances were managed responsibly which resulted in the Company being placed into voluntary liquidation on 4 November 2013

2. On 3 August 2013, provided an undertaking to the Secretary of State under the Directors Disqualification Act 1986 that he would not act as a director of a company and/or an insolvency practitioner for a period of 3.5 years and in doing so, his conduct fell below the standard expected of a registered architect and he is therefore guilty of unacceptable professional conduct.

The sanction imposed is suspension (12 months).

Background

  1. The Respondent is a registered architect and former director of Maya Studio Limited (“MSL”), an architectural practice which went into voluntary liquidation on 4 November 2013. The ARB was informed of its winding up by email dated 25 November 2013, the Respondent having self-referred to ARB.
  1. Between January 2008 and November 2013, MSL accrued liabilities of £36,009 to HMRC in relation to unpaid VAT, corporation tax and PAYE/NIC. It also owed £4,215 to other unsecured creditors.
  1. Following an investigation, the Official Receiver concluded that the Respondent had acted to the detriment of HMRC by trading whilst owing monies and treating other creditors more favourably. MSL was also the subject of two county court judgements.
  1. The Insolvency Service indicated that, in the circumstances, action under the Directors Disqualification Act 1986 (“the Act”) would be taken. The respondent subsequently gave the following undertaking to the Secretary of State, namely that he shall not:
  1. Be a director of a company, act as a receiver of a company’s property or in anyway,

         whether directly, or indirectly, be concerned or take part in the promotion, formation or              

         management of a company unless (in each case) you have leave of the court; nor

 

       ii       Act as an insolvency practitioner.

  1. The undertaking was granted for 3.5 years. The Respondent self-referred to ARB on 8 September 2015.
  1. Subsequent to the liquidation of MSL, the respondent set up a new company, ms+A Limited (“ms+A”). Ms+A provided architectural services and is currently dormant.
  1. In reaching its decisions, the Committee has carefully considered the evidence of the Complainant together with the documentary evidence presented to it in the Report of the ARB’s Solicitor and the 63 pages of documents exhibited to it, which include the Respondent’s detailed written representations to the Board. The Respondent has admitted the factual allegations and that his conduct amounts to UPC.
  1. The Committee has accepted the legal advice given by the Clerk. It has had regard to the fact that the burden of proof 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.

 

Finding of facts

 

  1. The Committee makes the following finding of facts:

Allegation 1:

On the basis of the documentation before the Committee confirming the liquidation of MSL and on the basis of the Respondent’s admissions as to the facts, the Committee finds the facts proved.

  1. Standard 9 of the Code states:

               Maintaining the reputation of architects

 

               9.1  You should ensure that your professional finances are managed responsibly.

 

               9.2  You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute. If you find yourself in a position where you know that you have fallen short of these standards, or that your conduct could reflect badly on the profession, you are expected to report the matter to the Board. For example, you should notify the Registrar within

 

               28 days if you:

  • are convicted of a criminal offence;
  • are made the subject of a court order disqualifying you from acting as a company director;
  • are made the subject of a bankruptcy order;
  • are a director of a company which is wound up (other than for amalgamation or reconstruction purposes);
  • make an accommodation with creditors (including a voluntary arrangement);
  • fail to pay a judgment debt.

 

               The above are examples of acts which may be examined in order to ascertain whether they disclose a wilful disregard of your responsibilities or a lack of integrity, however this list is not exhaustive.

 

               9.3  …..

               9.4  …..

               9.5  …..

               9.6  …..

  1. In all the circumstances, the Committee finds that the Respondent acted in breach of Standard 9 of the Code.
  1. Allegation 2:

The Committee finds the facts proved for the following reasons:

On the basis of the documentation before the Committee confirming the terms of the undertaking given by the Respondent, and on the basis of the Respondent’s admissions as to the facts, the Committee finds the facts proved.

By reason of the facts found proved, the Committee finds that the Respondent acted in breach of Standard 9 of the Code.

Application to hear part of the hearing in private

  1. The ARB made an application for part of the hearing relating to the Respondent’s health condition, to be heard in private. The application was not opposed by the Respondent. The Committee heard and accepted the advice of the Clerk and took into account the provisions of Rule 18 of the Professional Conduct Committee Rules. Having done so, the Committee allows the application for that part of the hearing dealing with the Respondent’s health issues to be dealt with in private. All other parts of the hearing shall be heard in public.

Finding on Unacceptable Professional Conduct 

  1. Having found allegations 1 and 2 proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person.
  1. Mr Llewellyn gave evidence. He accepted that, whilst his health condition was partly responsible for his failures, he accepted his responsibility for not ensuring that the Company met its financial obligations to HMRC. In doing so, he accepted that his failings amounted to UPC.
  1. In reaching its findings, 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 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. Whilst noting that the Respondent accepts that his conduct amounts to UPC, the Committee reminds itself that this is a matter for its own judgment.
  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”. The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin).
  1. The Committee has taken into account both Mr Corrie’s submissions, and the Respondent’s evidence.
  1. However, so far as allegations 1 and 2 and the corresponding breaches of the Code are concerned, the Committee finds that both individually and collectively, the Respondent’s failing, represents conduct falling below the standard expected of a registered architect. His failings, collectively, are serious and adversely impact both on the reputation of the architect and the profession generally. The Respondent is obliged under the Code to ensure his finances are managed responsibly, and the Respondent failed in this regards for a period of approximately six years. A member of the public should rightly be able to expect that a professional registered architect would comply with this requirement.
  1. The Committee therefore finds that the Respondent’s conduct as found proved in respect of allegations 1 and 2 does amount to unacceptable professional conduct.

Sanction

  1. Mr Llewellyn then addressed the Committee in mitigation. Mr Konynenburg also gave evidence in support of the Respondent, attesting to his competence and commitment to the profession, as well as highlighting the Respondent’s charitable works.
  1. 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 ARB 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. Having taken into account the Respondent’s submissions, the Committee has identified the following mitigating factors:
  • that the Respondent has no adverse regulatory history in his 23 year career;
  • the Respondent self-referred to the ARB and has not sought to conceal his failings;
  • he has engaged in the regulatory process and has admitted the factual allegations

he faced, and the fact that his actions amount to UPC;

  • he has demonstrated significant insight into his failings and its impact on the

profession generally and has apologised for his failings;

  • his personal circumstances at the time;
  • he has taken remedial steps to ensure the risk of repetition does not reoccur,

including seeking appropriate medical help and taking practical steps to ensure that his

affairs are looked after should he be absent again from work;

  • the character reference supplied from his current employer together with the evidence of

Mr Konynenburg.

  1. The Committee has identified the following aggravating factor:
  • his failings related to basic financial mismanagement in relation to wide ranging tax

issues over a six year period.

  1. The Committee notes that the matters found proved are serious to the extent that Mr Llewellyn’s failings diminish both his reputation, and that of the profession generally for the reasons set out in its determination on UPC. The Committee therefore 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. The Committee considered that such a sanction was neither appropriate nor proportionate given that it did not consider the Respondent’s UPC to be at the lower end of the scale.
  1. The Committee then considered whether to impose a penalty order and also concluded that such a sanction was neither appropriate nor proportionate given what it considered would be a punitive sanction given the nature of the matters found proved where the Respondent has yet to repay the HMRC monies owed to it. The Committee also considered, given the period of time over which the financial mismanagement occurred, that the UPC found proved was too serious for a penalty order to address the public interest or the reputation of the profession.
  1. The Committee then considered whether to impose a suspension order. There was no evidence before the Committee that the Respondent demonstrated entrenched integrity issues. Given the remedial steps taken by the Respondent, and the fact that he remains subject to the undertaking to the Secretary of State, the Committee also considered that his UPC was unlikely to be repeated. The Committee therefore imposes a 12 month suspension order, which period the Committee considers to be appropriate and proportionate given the identified aggravating and mitigating circumstances.
  1. The Committee considered whether to impose an erasure order, but given the suitability of a suspension order, the Committee concluded that such a sanction would be unduly punitive.
  1. That concludes this determination.

 

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