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Mr Kanak Bose

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Kanak Bose (051379B)

held on 16 and 17 June 2014

at

ARB

8 Weymouth Street

London

W1W 5BU

—————–

Present:

Mr Paul Housego (Chair)

Mr Roger Wilson (PCC Architect Member)

Ms Linda Read (PCC Lay Member)

Mr Stephen Battersby (Clerk to the PCC)

—————–

 

 

Mr Nick Leale of Blake Lapthorn appeared on behalf of the ARB.

Mr Bose attended the hearing in person.

 

  1. Mr Bose appeared before the Committee to answer an allegation of unacceptable professional conduct (“UPC”)

 

The allegation

 

  1. The particulars of the allegation are as follows: –

 

That he failed to perform his work with due care, skill and diligence in that he:

(i)     failed to provide, as agreed in the contract

  1. the Final Certificate
  2. the 10 year warranty

 

(ii) failed to ensure that the works were finished to a satisfactory standard: and

 

(iii)failed to ensure that the works were completed in a timely manner and in compliance with various statutory regulations

 

and in so doing fell below the standard expected of a registered architect and is guilty of unacceptable professional conduct.

 

  1. The allegations are to be determined under the provisions of the Architects Act 1997 and the Architects Code: Standards of Conduct and Practice 2002 (“the Code”). The conduct of Mr Bose is said to breach Standard 4 – the obligation to carry out work faithfully and conscientiously and with due regard to … professional standards. It is said to also to breach Standard 4.2 which requires due care skill and diligence. We have not set them out in full here, as the Code is a published document.

 

Background

 

  1. Mr Bose had a close connection with a property company, Candleberry Ltd (“the Company”). As part of what he called a “special purpose vehicle” he was part of a development of six properties. In 2002 Mr and Mrs C (“the Complainants”) contracted to buy one. He was the architect, the agent of Candleberry Ltd, and in 2006 he became the Managing Director of the main contractor, DJR Homes Ltd. The joint enterprise was to share profits in equal thirds after expenses. This was not disclosed to Mr and Mrs C. Although the house was largely complete in late 2002, so that the Complainants moved in to it, ownership of it was not passed to the Complainants until 2012, 10 years later, after the Complainants had defended one legal action brought against them by Candleberry Ltd and had succeeded in another that they brought against the Company to compel the transfer of the title to them. The title was not transferred earlier because the Council would not issue a final certificate for the property and also brought enforcement action about failures to complete work. The other cause was the Company’s failure to obtain the 10 year guarantee. The seller was required by the missives (contract for purchase) to provide this to the Complainants, and without it they could not draw down the mortgage advance in order to pay for the property. Mr Bose had effective control over the building work at all material times.

 

Mr Bose’s response

 

  1. Mr Bose denied the allegation, and had asserted that he was blameless in the unfortunate history of the matter. He asserted that the Complainants had been unhelpful throughout, that none of the other five purchasers had complained and that the Complainants had achieved ten years’ worth of occupation without payment. They were not his clients, and he said that he had acted faithfully in the role of architect to, and as agent of, Candleberry Ltd. He was not part of the main contractor (DJR Homes Ltd) until 2006, and when he was Managing Director of that company he said that he acted appropriately. He altered his position somewhat in his submissions.

 

The evidence

 

  1. We have perused the Board’s Solicitors report running to 401 pages. We have considered a detailed defence prepared by Mr Bose, set out in those papers. We have heard oral evidence from Mrs C, who provided a witness statement in advance, and from Mr Bose, who also provided some supplementary documents.

 

No case to answer

 

  1. At the close of the case for the Board Mr Bose submitted that there was no case to answer.

 

  1. Mr Bose asked us to find that there was no case to answer on the basis that he was the architect for Candleberry Ltd, and does not owe professional duties to anyone else, particularly the Complainant. He asserted that he was instructed not to do anything further after April 2003 and adduced a letter from Candleberry Ltd to that effect dated 14 May 2014. Therefore, he says, he cannot be guilty of any professional misconduct.

 

  1. Mr Bose had said earlier (in his 12 April 2013 submission) that this was a joint venture between him, Candleberry Ltd and DJR Homes Ltd as developer. He was not solely the architect. He describes it as an “informal special purpose vehicle”. Mr Bose became Managing director of DJR Homes Ltd in 2005 or 2006, unknown at that time to the Complainants. It was DJR Homes Ltd that was registered with Zurich as the developer for the issue of the essential 10 year certificate. That matter is one matter before us. It was for Mr Bose to ensure the grant of that certificate, in his capacity as managing director of DJR Homes Ltd. That allegation requires an answer from him on the evidence before us.

 

  1. The whole matter is bound up with Mr Bose’s interaction with Candleberry Ltd and DJR Homes Ltd, and he was the face of the joint venture so far as the Complainants were concerned. As he is part of the joint venture he was involved with the Complainants.

 

  1. Up until April 2003 there was no dispute between the parties, yet the certificate of habitation had not been issued nor the 10 year Zurich certificate. An answer is called for from Mr Bose as to why that was not something for which he was responsible.

 

  1. In August 2007 Mr Bose wrote to the Complainants to say that he was instructed by Candleberry Ltd, but added “Before I instruct solicitors to commence proceedings for possession…” Accordingly an answer is needed to the question as to the basis he was to instruct solicitors – as the case put before us is that Mr Bose was an integral part of the development throughout. If so then his position would not be as he asserts to us in making this application – that he was solely Candleberry Ltd’s architect with, in those circumstances, no duty to do other than follow his client’s instruction. An architect has to act professionally at all times, and an answer is needed as to whether the duties of an architect were met in relation to the specific charges put before us.

 

  1. We cannot take account of the letter of 14 May 2014 which is part of the explanation Mr Bose says that he does not need to provide.

 

  1. We have asked for, received and accepted the advice of our clerk.

 

  1. We have been at pains to ensure that we decide this application on the basis only of the information placed before us by the Board.

 

  1. On the basis of that evidence we decide that there is a case to answer and the application is refused.

 

The facts

 

  1. We accepted the advice of our Clerk. The burden of proof is on the Board. Mr Bose does not have to prove anything. The Board has to prove matters to the civil standard, that is that it is more likely than not that a given fact occurred. In this case the facts are largely not in dispute and it is more a matter of what we make of them. In so far as facts are disputed we accepted the measured consistent and credible evidence of Mrs C.

 

  1. The development in question involved a former farmyard. Farm buildings were converted and new dwellings constructed. The Complainants bought a refurbished farm labourer’s cottage.

 

  1. The developer registered with Zurich, who provided 10 year building certificates until 2009, for this site was DJR Homes Ltd, which was the main contractor for the work undertaken. The registration date with Zurich was 24 September 2001.

 

  1. Candleberry Ltd has as its main shareholder and driving force Mr A. Mr Bose involved Mr A in a project near to Mr Bose’s home. A third party was the main contractor; DJR Homes Ltd. Mr Bose was to be paid a fee for his architectural work of £20,000, the developer his account. Mr A’s company was the funder. After all expenses the net profit from the whole development was to be divided in thirds. The Complainants were not told of the joint venture, and were unaware of Mr Bose’s financial involvement, which only emerged in Mr Bose’s answers to questions from the Committee in this hearing.

 

  1. By July 2002 the Complainants had agreed to buy the property, with 9 September 2002 as the target date to move in. They rented a house in the village until they could move in to the property.

 

  1. In August this date was postponed to 24 October 2002.

 

  1. Missives were exchanged on 2 December 2002. Completion was to be “not later than 7 days after the property was verbally certified as complete in connection with the issue of a Habitation Certificate”. This was poorly worded as it should have referred to a “completion certificate”. The sellers also had to provide a 10 year Zurich certificate.

 

  1. The complainants moved into the property just prior to Christmas 2002.

 

  1. At 10 January 2003 there was an extensive snagging list.

 

  1. In January 2003 one owner Mrs M had complained to the Scottish Borders Council (SBC) about the development, and by February 2003 she and her husband (a solicitor who wrote to SBC on his firm’s notepaper on her behalf) had organised the six residents into an informal residents association.

 

  1. On 28 February 2003 a temporary permission for occupation of the property was issued by SBC. It was to expire on 27 August 2003. Being temporary it (obviously) could not satisfy the missive condition, as the Judge found in subsequent litigation between Candleberry Ltd and the Complainants, but on 11 March 2003, Mr Bose (and that he wrote the letter is significant), wrote to the Complainants to say that the payment was now due, of the whole purchase price.

 

  1. The Complainants provided a six page snagging list on 11 April 2003.

 

  1. By now the complainants wished to complain to ARB, and had written to ARB by 1 May 2003, as ARB replied on that day. A formal complaint was made on 30 June 2003. However by August 2003 the existence of litigation brought by Candleberry Ltd against the Complainants precluded both the Complainants and ARB from taking a complaint further until the litigation was at an end.

 

  1. A list of poor quality workmanship was provided by the Complainants’ chartered surveyor on 15 May 2003.

 

  1. In about July 2003 an enforcement notice was issued by SBC concerning the absence of astragal bars on the windows (previously “remedied” by attaching such bars with double sided sticky tape: they fell off when it rained). It appears that the enforcement notice was not complied with, given a letter of 6 January 2004 from SBC to the complainants to that effect.

 

  1. The head of building control wrote to Candleberry Ltd on 8 August 2003 to set out 23 problems with the property. They wrote again on 12 September 2005 (two years later) to say that there were 15 items that had to be dealt with before a completion certificate could be issued and threatening enforcement action. It would appear that the two years in between were consumed by litigation rather than by Candleberry Ltd and Mr Bose addressing the problems.

 

  1. On 19 August 2003 the certificate of temporary occupation was extended to 15 September 2003. It is not known to us what happened on its expiry, but the complainants continued to live there.

 

  1. Sometime in August 2003 Candleberry Ltd commenced litigation against the complainants to seek possession of the house and money.

 

  1. Mr M wrote to Mr Bose on 8 October 2003 about matters common to all six owners (common parts and drainage) on behalf of them all.

 

  1. On 23 October 2003 another owner Mr and Mrs F complained to Candleberry Ltd. They had purchased plot 3 on 29 November 2002, describing the treatment by Candleberry Ltd of the purchasers of the plots as shabby, and setting out that all purchasers had problems and there had been “numerous empty promises by Kanak Bose”.

 

  1. By August 2004 the Mr and Mrs M were litigating against Candleberry Ltd, arising from poor quality work and were ultimately successful. All owners signed a joint letter of complaint to Candleberry Ltd in August 2004.

 

  1. On 4 October 2004 the action brought by Candleberry Ltd against the Complainants was dismissed. Mr Bose attended the hearings. That action had attempted to evict the complainants from the property and pay Candleberry Ltd £25,000.

 

  1. The counterclaim made by the complainants succeeded, so that Candleberry Ltd was ordered to pay them £10,000 if the work required to the property was not carried out, and to implement the missives (that is, complete their obligations so that the property could be transferred). Candleberry Ltd appealed, it appears to put off the day of compliance. That appeal failed; see later.

 

  1. On 17 November 2004 a certificate of completion was issued by SBC for plot 2, and similar certificates were issued at about the same time for all the other plots save this one. It was a deliberate decision of Mr Bose, on the instruction of Mr A, not to apply for the certificate for this plot.

 

  1. However the non-existence of the 10 year Zurich guarantee meant that even if they had such a certificate the complainants could not complete their purchase, as they could not get their mortgage money without the Zurich guarantee: it was a condition of the missives that it be provided and so Candleberry Ltd had not complied with its obligation in this regard.

 

  1. All this was having a great effect on Mrs C’s health – set out in a letter from their solicitors of 16 May 2003 to the solicitors of Candleberry Ltd. Mrs C’s doctor reported so on 4 February 2005, which evidence the Court accepted on 21 April 2005 when considering an (unsuccessful) application by Candleberry Ltd to amend their case. The Court decision reports that the matter had “a drastic effect” on Mrs C’s health.

 

  1. On 16 August 2005 Candleberry Ltd’s appeal was dismissed.  The result was that Candleberry Ltd was obliged to pay £10,000 to the complainants so that they could do the outstanding work themselves, and then Candleberry Ltd was compelled to transfer the property to the Complainants for the price. It appears that the £10,000 had been paid into court by Candleberry Ltd pursuant to an order so to do, and was paid out to the complainants.

 

  1. SBC again raised issues about work not done, as set out above, on 12 September 2005.

 

  1. In December 2005 Mr Bose became the managing director of DJR Homes Ltd, the main contractor for the work on the estate, having purchased that company.

 

  1. The complainants did the work themselves, by 17 March 2006, to comply with the enforcement notice. They had to replace all the windows with new double glazed units with proper astragal bars.

 

  1. By letter of 2 June 2006 the complainants solicitors expressed surprise that Mr Bose had not supplied the information to SBC so that they might issue the completion certificate, pointing out that it was much in their interests for this to be done, and urging that it was. It was not.

 

  1. On 23 October 2006 the complainants’ solicitor wrote to SBC to ask the position as they were unable to obtain title until the completion certificate was issued (263). The reply of 23 October 2006 said that “Mr Kanak Bose as was my understanding certainly was aware [sic] of the items contained in my letter, however I am not aware of any progress on the matter.”

 

  1. In his response to the ARB of 12 April 2013 Mr Bose states that in 2006 he checked with Zurich and could have drawn down the 10 year guarantee for the property, but did not as “I had no clear instruction to do so”. He needed no instruction for two reasons – he was a one third partner in the project, and secondly was the developer registered with Zurich. It is hard to see this as being anything other than wilful obstruction. That there was a fee to pay is no reason not to obtain it: it was a condition of the missives that they do, and the Court ordered it, as Mr Bose knew, he having been at Court when the order was made.

 

  1. On 4 August 2007, Mr Bose wrote to the Complainants “Before I instruct solicitors to commence proceedings for possession… the best result would be to agree on a date when the house could be vacated, and agree on a sum to recompense the company [Candleberry Ltd] for rent and insurance over the last four and a half years.” Plainly he was to all intents and purposes in control of the way Candleberry Ltd acted. It was his idea to write the letter (following the return of the complainants to England for work reasons), and it was his solicitors who were to be instructed, and it was he who was to instruct those solicitors.

 

  1. This one fact clearly demonstrates what we find to be the case – it is disingenuous in the extreme for Mr Bose to pretend that he had a client – Candleberry Ltd – whose instructions he was to follow, and had no control over matters. He was a one third partner in a joint venture that was hoped to achieve a profit for him which he expected far to exceed his professional architectural fee.

 

  1. On 6 November 2008 SBC wrote to Colin Ritchie of Kanak Bose Ltd (why this limited company, and not Mr Bose personally or DJR Homes Ltd is not explained to us) to say that no completion certificate could be issued on the expired warrant for the property. The only recourse was said to be a “letter of comfort”.

 

  1. The complainants had returned to England for work reasons in summer 2007. As they did not own the property they could not sell it. They rented in England and the matter did not progress for some time.

 

  1. On 20 July 2010 SBC received an application put in by the Complainants for a completion certificate where no warrant was obtained. It can be seen that they were having to try to solve the problem themselves.

 

  1. The complainants then brought their own legal action in October 2010 to compel Candleberry Ltd to deal with matters. That action was successful at a hearing on 13 July 2011, but Candleberry Ltd did not comply with the order made by the Court.

 

  1. By 27 January 2012 their solicitors wrote to those of Candleberry Ltd to say that they would have to take further action (to have the Court sign the transfer documentation, in essence). The difficulty was that there was still no 10 year guarantee from Zurich.

 

  1. Ultimately there was agreement by 5 July 2012. Zurich had ceased offering their 10 year guarantees in 2009. Mr Bose had known this at the time but had not advised the Complainants.

 

  1. An alternative insurer would supply such a guarantee. Various works were to be done to give access to a paddock by construction of bridges over a burn. The title would then be transferred and the price paid.

 

  1. To obtain that there was then an inspection by PG surveyors on 14 August 2012 and further work finally undertaken and inspected by 28 August 2012.

 

  1. By 17 September 2012 Candleberry Ltd were offering a certificate to be supplied by Mr Bose – the matter had gone on so long that the 10 year certificate that an alternative provider could supply would run from the date of occupation – and so would expire in a few months, on 15 December 2012.

 

  1. On a pragmatic basis, ultimately the complainants accepted this so as to be able to tick that box for the lender, and obtain the mortgage advance to be able to pay the purchase price and get title to their home. That Architect’s Certificate is dated 27 September 2012.

 

  1. However before that occurred the litigation continued, being set down for hearing by the Complainants for 9 February 2013. It seems to have been resolved by the title being transferred for the price, the complainants having got the certificate of completion, the Architect’s Certificate dealing with the Zurich point (and so much time having passed there was no value in a 10 year guarantee, as 10 years had passed).

 

  1. Title was finally passed to the complainants in about April 2012, after almost 10 years.

 

  1. After receiving the complaint, Candleberry Ltd wrote to ARB on 12 April 2013, the letter being signed by Mr A, to say that none of the other five purchasers had complained. This was not true, for all had complained and another of the six had also brought a (successful) action against Candleberry Ltd. The letter asserts that the complainants had “failed to pay for the house” when they had spent 10 years trying to do just that. It says that it is “unfortunate that they have now chosen to vent their spleen on an innocent Mr Bose in this gratuitously unpleasant manner.” The letter does not disclose the partnership arrangement.

 

Submissions for the ARB

 

  1. The case had been opened by Mr Leale who set out the facts relating to the history of the work on site.

 

Submissions by Mr Bose

 

  1. Mr Bose attributes the difficulties in this matter to intransigence on the parts of Mr A, of Candleberry Ltd, and Mr C, which precluded resolution of the matter. Relationships broke down, and he includes himself in that difficulty.

 

  1. He accepted that the work to the windows was not done timeously, but that he had no alternative but to comply with the instructions of those paying him – in this case Mr A. Those instructions were to cease all work on that property.

 

  1. He accepts that he was a partner in the profit of the enterprise of all six properties, and that there can be problems with this dual aspect of an architect’s involvement with a project, and that he was near the line. He accepts that this was not communicated to Mr and Mrs C.

 

  1. He asserts that profit was never a driver for him, for he desires a quality project, both for those who would live there and for the community.

 

  1. There were problems with the project at the end as the developer had gone off site and was no longer interested in the development, a particular difficulty being the departure of the excellent site agent.

 

  1. He now apprehends that in April 2003 he should have been motivated by a desire to resolve matters which would, he now accepts, have been better than fighting.

 

  1. While regretting some aspects of the case Mr Bose stands by his assessment of the circumstances set out in a letter to the Board of 20 May 2013:

 

The dispute with Mr and Mrs C has one and only one starting point. That the house was not paid for when it should have been. Thereafter an argument between Mr and Mrs C and the developer ensued which was inevitable. I was not party to this dispute except as an architect to Candleberry Ltd. I also was not recipient of any judgment against myself, my practice or indeed from 2006 onwards, my directorships.”

 

UPC

 

  1. On the basis of these facts the allegations as put are made out. He was not just an architect for Candleberry Ltd. He was paid for his architectural input by the joint enterprise, but he was also a developer. He did not disclose that, nor address the conflict issues that inevitably arose. He was an equal partner with Mr A’s company and (initially) the main contractor. It is not the case that he had no connection with the complainants. He failed to deal with the matters as is alleged. As he was a developer he did owe a duty to the complainants. He did have a relationship with them. It is no answer to that to say that Mr A was the dominant force in the actions taken. But we do not accept that this was other than Mr Bose’s own wish, given his instigation of the letter of 7 August 2007.

 

  1. The assessment of whether something is UPC is a matter for the Committee’s judgment. There is no burden of proof. The Committee has no doubt that it is UPC.

 

  1. UPC has to import seriousness. It has to involve an element of moral blameworthiness. Given that Mr Bose was party to a legal case trying to evict Mr and Mrs C in 2005 and suggested the same in 2007, coupled with concealment of the profit element due to him personally, this is so. That he may have had difficulty getting funding for work (from Mr A) is no answer to the issues about attempts to evict and the decision not to seek the Zurich 10 year certificate when it was within his control to do so. It is hard to see these matters as other than vindictive.

 

Sanction

 

  1. The Committee has accepted the advice of the legal assessor and has considered its indicative sanctions guidance. It has borne in mind that the purpose of sanctions is not to be punitive, although this may be their effect. Sanctions are to protect the reputation of the profession, maintain public confidence in the profession (and in the system of regulation) and to uphold proper standards of conduct.

 

  1. The Committee appreciates that to appear before one’s professional regulatory disciplinary tribunal is itself a salutary experience, and that the Committee has a discretion not to impose a disciplinary sanction at all. If it is minded to do so the Committee starts at the lowest sanction available to it, and only after considering that sanction inappropriate does it move onto the next sanction, continuing until it finds the appropriate sanction for the matters found proved.

 

  1. Mr Bose chose not to address the Committee in mitigation, nor to provide any testimonials.

 

  1. He has two previous matters of UPC recorded against him, one in 2009 when he was reprimanded, and one in 2012 when he was fined £1,000.

 

  1. The Committee first considered whether a sanction was required and concluded that it was necessary to impose a sanction.

 

  1. The Committee next considered whether to impose a reprimand. A reprimand is the lowest sanction that can be applied and may be used in relation to those offences at the lower end of the scale of seriousness. We do not consider this at the lower end of seriousness and so rejected the possibility of a reprimand. We are not satisfied that there is insight or that there is a genuine expression of regret.

 

  1. Next we considered whether to impose a penalty order which would be apposite where the offence is too serious to warrant a reprimand and where there is limited or lack of remorse or where the architect has benefited financially.

 

  1. We are not satisfied that a penalty order marks the seriousness of Mr Bose’s actions. We next considered a suspension order. This is appropriate for serious offences, which are not so grave as to warrant erasure from the Register.

 

  1. Suspension may be considered where an offence is so serious that a reprimand or penalty order would be insufficient to protect the public or the reputation of the profession, where there is behaviour that is not fundamentally incompatible with being an architect, where there is no evidence of entrenched integrity issues, where the Committee is satisfied that the behaviour is unlikely to be repeated, where there is conduct capable of being rectified (or where there is non-payment of a previously imposed penalty order).

 

  1. Here there are no mitigating factors advanced. There are many aggravating factors. This problem lasted 10 years for the complainants. It had a severe effect on Mrs C’s health. Mr Bose was not candid either with the complainants or with the ARB. He demonstrates such limited insight that this cannot be a mitigating factor. This is his third appearance before this Committee in the space of five years. The way the matter was handled by him both during those 10 years and in connection with these proceedings demonstrates a lack of integrity. For all these reasons the Committee does not feel that a suspension order adequately reflects the circumstances. We have considered the indicative sanctions guidance carefully.  The reputation of the profession and the possibility of repetition mean that in these circumstances we are satisfied that the only appropriate sanction that we can impose is that of erasure.

 

  1. Accordingly Mr Bose is erased from the register. We recommend that a minimum period of 5 years should elapse before an application to be restored to the register should be considered.
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