Mr Julian Castle
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Julian Castle (051715A)
25, 26 and 27 July 2016
Architects Registration Board
8 Weymouth Street
Mr Julian Weinberg (Chair)
Mr Stephen Neale (PCC Lay Member)
Mr Roger Wilson (PCC Architect Member)
Mr Stephen Battersby (Clerk to the PCC)
Ms Rebecca Vanstone of Blake Morgan appeared on behalf of the Board
Mr Castle attended the hearing in person
1. In this case, the Board is represented by Ms Rebecca Vanstone. Mr Castle has attended this hearing but is not legally represented. Mr Castle faces a charge of unacceptable professional conduct (“UPC”) based on three allegations in that he:
Allegation 1: Failed to provide the Complainant with adequate terms of engagement;
Allegation 2: Failed to adequately keep the Complainant informed as to progress despite being instructed to carry out additional supervision of the project;
Allegation 3: Failed to act with reasonable skill and care in instructing the contractor to ensure:-
a. The installation of the UL46 columns
b. The placement of pad foundations for the UL46 steel columns
c. That there were toothed recesses in the walls
d. The modification of the UC71 steel beam to join the steel columns
e. Adequate fire-resistant coverings for the UC71 steel beams
and that by doing so, the respondent acted in breach of Standards 4 and 6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).
2. This case arises out of a complaint made by Dr W (“the complainant”) in respect of the professional services carried out by the respondent.
3. The background to the allegations is that the complainant instructed the respondent as architect in respect of the design and extension of the complainant’s property. He was further required to obtain all relevant planning permissions and building regulations. Quotes were obtained and TCG Limited (“the Builders”) were instructed to undertake the construction work.
4. It is alleged that inadequate written terms and conditions of his retainer were provided by the respondent to the complainant.
5. Subsequently, because the complainant was living abroad, the respondent was instructed to undertake an enhanced supervision role for which he would be paid double his previous fee. It is alleged that despite this, the complainant was not kept informed of progress of the work.
6. As the project progressed, issues arose with the steelwork supporting the extension of the property. Mr Towns (“the Building Inspector”) visited the property and noted a number of defects as outlined in the allegations above. The remedial work was installed retrospectively. The complainant instructed Mr M, a surveyor to advise him.
7. Prior to the case being opened by Ms Vanstone, she made a preliminary application to amend the wording of allegation 3 in that the header of the allegation should now read:
“That the respondent failed to act with reasonable skill and care in failing to instruct the contractor to ensure…..”.
8. She submitted that the amendment was required to accurately reflect the alleged UPC alleged. To allow the amendment, she submitted, would cause no unfairness or injustice to the respondent as the nature of the allegations was known to the respondent. The application was not opposed by the respondent.
9. The Committee heard and accepted the advice of the clerk. The Committee has considered Rule 13b of the Professional Conduct Committee Rules which states:
“The Hearing Panel may permit the amendment to a Charge, but if such an amendment is permitted and the Respondent has been materially misled he or she shall be entitled to an adjournment.”
10. Having taken into account all the submissions received, the Committee was satisfied that there was no unfairness or injustice to the respondent in allowing the amendment. The Committee therefore granted the Board’s application to amend the charge as sought.
11. The allegations were initially denied by the respondent, but, having given evidence, he subsequently admitted the facts of allegations 1 and 2 which were therefore found proved by reason of those admissions.
12. In reaching its decisions, the Committee has carefully considered the live evidence of the complainant (by phone as he is currently abroad) and the respondent, together with the documentary evidence presented to it in the Report of the Board’s Solicitor together with the 28 pages of documents exhibited to it. The Committee has also heard live evidence from Mr M, the instructed Structural Engineer who gave evidence on behalf of the respondent by phone.
13. 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.
14. The Committee makes the following finding of facts:
15. By reason of the respondent’s admission, the Committee finds the facts proved. It has also taken the following into account in reaching that decision:
16. The complainant states that he was not provided with written terms and conditions as required by the Code. As a result, he was unsure of the contractual basis between himself, the respondent and the builder. The respondent relies on a letter dated 21 January 2013, which, whilst setting out some contractual terms, for example his fee proposal for the work up to building control approval, otherwise fails to comply with Standard 4 of the Code.
17. Standard 4 of the Code states, amongst other things:
4.4 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).
4.6 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.
18. The Committee has borne in mind that terms of engagement must be in writing and contain all the necessary terms. The onus is on the architect to send them to the client before any professional work is carried out. Having considered the documentation before it, the Committee finds that the respondent failed to provide the complainant with adequate terms of engagement as the written terms of engagement supplied failed to set out the limitations of the respondent’s responsibilities, details of his insurance, his complaints handling procedure; nor did it make reference to the role of the Board and the Code. The Committee therefore finds the facts of this allegation proved and that the respondent acted in breach of standards 4.4 and 4.6 of the Code.
19. By reason of the respondent’s admission, the Committee finds the facts proved. It has also taken the following into account in reaching that decision:
20. It was the respondent’s initial position that whilst he was contracted to supervise the contractor’s work, he did not consider that he was under an obligation to inform the complainant of progress of the works. However, the Committee has had regard to the complainant’s email to the respondent dated 28 April 2014 which states:
“we would be happier of you could double your supervisory input and we will double your fee, accordingly. It may seem superfluous to you, but at this distance it would be comforting for us to have regular updates on progress.”
21. Given that the complainant was in New Zealand during the planned duration of the works, the Committee concludes that the request for additional supervision was made with the specific intention that the complainant be kept informed on a regular basis as to progress on the project. The respondent agreed to provide this additional supervision in an email dated 29 April 2014. The complainant subsequently made a number of requests by email for updates. Despite the respondent’s initial assertion that he was not responsible for updating the complainant about the progress of the works, his correspondence confirms that he would do just that. The Committee notes the contents of the respondent’s email to the complainant dated 22 May 2014 in which he states: “I will be on site tomorrow to review progress, following which I will give you a further update on progress”. The respondent ultimately accepted that he did not, and that he failed to adequately keep the complainant informed as to progress despite being instructed to carry out additional supervision of the project.
22. Standard 6 of the Code states, among other things:
“You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
6.1 You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.
6.3 You are expected to keep your client informed of the progress of work undertaken on their behalf and of any issue which may significantly affect its quality or cost.
23. By reason of the facts found proved, the Committee finds that the respondent acted in breach of Standards 6.1 and 6.3 of the Code.
24. The Committee finds the facts not proved for the following reasons:
25. The Committee has carefully borne in mind the wording of the allegation before it. The allegation as drafted relates to an alleged failure to give instructions to the contractor to undertake work. It is not an allegation as to an alleged failure to ensure that the contractor satisfactorily completed the work in question. The committee has therefore restricted its considerations as to the evidence as to what the respondent instructed the contractor to do. Whilst quality of the respondent’s supervision could be called into question, that is not the issue that falls to be determined by the Committee. The Committee has further borne in mind that the allegation does not relate to a specific time period (for example prior to the beginning of July 2014 when the complainant had anticipated that the works would have been completed). The Committee has heard a great deal of evidence as to possible amendments to the project by extending the scope of the extension. However, the facts surrounding that issue do not assist the committee in considering whether the respondent had, at any point, instructed the contractor to undertake the work particularised at allegations 3a-e.
26. Having considered the evidence before it, the Committee concluded that the respondent had instructed the contractor to ensure that the work was undertaken. He had provided the contractor with various plans that identified the required work. By doing so, the respondent had instructed the contractor. Whilst the Committee has concerns as to why the works were not completed by the anticipated completion date, it cannot conclude that the respondent had not instructed the contractor as required. It is that allegation that forms the basis of the charge against the respondent. As such, the Committee cannot find that the respondent has failed to act as alleged. It therefore finds this allegation, not proved. In the circumstances, the Committee has not gone on to consider whether the respondent failed to act with reasonable skill and care in respect of this particular.
27. Having found allegations 1 and 2 proved, the Committee went on to consider whether the respondent’s conduct amounts to unacceptable professional conduct (UPC). UPC is defined as conduct which falls short of the standard required of a registered person.
28. 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 is a factor that will be taken into account should it be necessary to examine the conduct of an architect.
29. The Committee has considered the authority of Spencer v General Osteopathic Council  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”.
30. So far as allegations 1 and 2 and the corresponding breaches of the Code are concerned, the Committee finds that both individually and collectively, his failings are serious, adversely impact on the client and therefore on the reputation of the Architect and the profession generally. Clearly setting out terms of engagement at the start of a project is essential for both the architect and the client to understand their respective responsibilities and obligations, and establishes both parties’ expectations of the other. It is an essential element of the architect’s obligations to comply with Standard 4 in its entirety. Failure to do, as in this case, results in confusion and, as happened here, can lead to the breakdown in the architect / client relationship. It represents conduct falling substantially below the standard expected of a registered architect.
31. Similarly, failing to keep the complainant informed of progress, particularly when he was abroad, represents conduct falling substantially below the standard expected of a registered Architect. The complainant had instructed the respondent to undertake additional supervision on his behalf, and had specifically relied on the respondent for updates because he was unable to monitor what was happening whilst he was in New Zealand.
32. Both such failings can therefore quite properly be said to amount to UPC. The committee therefore finds that the respondent’s conduct as found proved, does amount to unacceptable professional conduct.
33. The respondent then addressed the Committee 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, behaviour and competence. 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.
34. Having taken into account the respondent’s submissions, the committee has identified the following mitigating factors:
· that he has no adverse regulatory history in his 30 year career and this was therefore an isolated incident;
· he has engaged in the regulatory process;
· he has made admissions, albeit belatedly in respect of the factual allegations he faced;
· he has taken some steps to remediate his failings by changing his working practices to the extent that he now works in a more structured and supportive environment, when at the time in question, he was working on his own account rather than as part of a larger team. The committee would emphasise however, that, as a professional architect, even if working in an unfamiliar environment, the respondent remains obliged to comply with the terms of the Code. However, the committee therefore considers that, in the circumstances, the risk of repetition of his UPC is reduced;
· he has produced a reference attesting to his professional ability and character (although it is not known whether the referee is aware of these proceedings);
· he stated that the experience of these proceedings has been stressful for him and that he would not want to put the complainant through a similar situation again;
· he has not benefitted financially from his actions.
35. The Committee has identified the following aggravating factors:
· the respondent has shown limited insight into his failings to the extent that he has not demonstrated significant recognition of the impact of his failings on the complainant or the reputation of the profession;
· the respondent had agreed to provide additional project supervision, had repeatedly been requested to provide an update on progress to his client, and had given an assurance that he would do so, yet still failed to provide those updates;
· his failings have put the complainant to substantial inconvenience in that the complainant was not aware of the delay in the project until he returned to the UK, in the expectation that the works would be completed;
36. The Committee notes that the matters found proved are serious to the extent that Mr Castle’s failings diminish both his reputation, and that of the profession generally. 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.
37. The Committee first considered whether to impose a reprimand. Given the seriousness of the UPC found proved, his limited insight and the presence of the other aggravating factors, the Committee considered the respondent’s failings too serious for such a sanction to be either appropriate or proportionate.
38. The Committee then considered whether to impose a penalty order and considered this to be an appropriate sanction to address the public interest. The Committee therefore imposes a penalty order in the sum of £1250 which the Committee considers reflects the seriousness of the UPC found proved. Such sum should be paid within 28 days. Failure to satisfy this order may lead to it being replaced with a suspension or erasure order.
39. The Committee did consider whether to impose a suspension order but concluded that such a sanction would be disproportionate and punitive given the suitability of a penalty order to address the public interest.
40. That concludes this determination.