Mr Michael Balla Goddard
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Michael Balla Goddard (049272H)
14 – 16 August 2013
Chartered Institute of Arbitrators
12 Bloomsbury Square
Mr Julian Weinberg (Chair)
Ms Linda Read (PCC Lay Member)
Mr Donal Hutchinson (PCC Architect Member)
Mr Stephen Battersby (Clerk to the PCC)
Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of the Board
Mr Balla Goddard did not attend and was not represented
1. In this case, the Architects Registration Board (“the Board”) was represented by Mr Jonathan Goodwin. Mr Balla-Goddard did not attend the hearing nor was he legally represented. He faced charges of unacceptable professional conduct and/or serious professional incompetence based on seven allegations relating to conduct allegedly in breach of the Code of Professional Conduct and Practice 1997 (“the 1997 Code”) and the Architects Code: Standards of Conduct and Practice 2002 (“the 2002 Code”), namely that he:
a. failed adequately or at all to set out your terms of engagement in writing and in particular, failed to set out the matters referred to in Standard 4.1 of the 1997 Code;
b. failed to carry out his with due skill, care and diligence;
c. failed to carry out his work without undue delay and/or in accordance with any time-scale and/or costs limit agreed with the clients;
d. failed to keep his client informed of material information and/or the progress of work undertaken on their behalf and/or of any issue significantly affecting the quality and/or cost of the work(s);
e. failed to deal with a dispute(s) and/or complaint(s) concerning his work and/or fees promptly and appropriately;
f. made a claim for costs and/or VAT which he knew, or ought to have known he could not justify;
g. failed to provide evidence of adequate Professional Indemnity Insurance.
2. No preliminary applications were made, but as Mr Balla-Goddard had failed to attend the hearing, the Committee first heard from Mr Goodwin regarding service of the relevant notice. Notice of the hearing was sent to Mr Balla-Goddard by first class post on 23 May 2013, more than 42 days before the date of the hearing. The Notice contained the prescribed information and was sent to Mr Balla-Goddard at his registered address. The letter was purportedly signed for by Mr Balla-Goddard on 24 May 2013. Having heard his submissions and having heard and accepted the advice from our Clerk, the Committee was satisfied that service has taken place in accordance with the rules.
3. The Committee, having heard further submissions from Mr Goodwin and having accepted the advice of the Clerk, went on to consider whether, in the circumstances, it was appropriate for the hearing to proceed in Mr Balla-Goddard’s absence. It applied Rule 11 of the Rules, the principles set out by the Court of Appeal in R v Jones (Anthony William)  1 AC 1 and the factors set out in Tait v. The Royal College of Veterinary Surgeons  UKPC 34.
4. The Committee has borne in mind the following:
i. The nature and circumstances of Mr Balla-Goddard’s absence, and in particular whether his absence may be deliberate and voluntary. The Committee heard that Mr Balla-Goddard spoke to Mr Simon Howard of the Board on 8 August 2013 during which conversation, he confirmed that he would be contesting the hearing. He indicated that he would be attending but did not state that he would be seeking an adjournment. The Board wrote to Mr Balla-Goddard on 8 August 2013 seeking his confirmation in writing that he would be attending, but he has not responded to either that letter or to a voice message left for him on 12 August.
ii. Whether an adjournment might result in the architect attending at a later date. No request for an adjournment had been made by Mr Balla-Goddard nor had any explanation been given by him as to why he was unable to appear. The Committee saw no evidence that led it to conclude that by adjourning the matter, Mr Balla-Goddard would attend the hearing on any future date.
iii. The likely length of any adjournment and what would be achieved by adjourning. For the reasons stated above, an adjournment was not considered appropriate.
iv. Whether, despite the architect being absent, he has expressed a wish to be represented at the hearing. Mr Balla-Goddard has not stated this to be the case and no communication had been received from any legal representative that he may have instructed.
v. The extent to which any representative will be able to receive instructions from and present a case on behalf of the architect. For the reasons stated above, this was not a relevant consideration.
vi. The extent of the disadvantage to the architect in not being able to give evidence having regard to the nature of the case. Mr Balla-Goddard provided detailed written submissions for the Committee’s consideration. In any event, he is afforded a safeguard under Rule 11(d) of the Investigations Rules.
vii. The seriousness of the allegations. These are serious allegations and the Committee bore in mind the public interest in hearing cases expeditiously.
viii. 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. The committee has borne in mind that three professional witnesses have travelled to London for this hearing to give evidence. In particular, the committee has borne in mind that Dr MW has had to leave his duties at his surgery to attend the hearing.
ix. The effect of delay on the memory of witnesses.
5. The Committee exercised the utmost care and caution in reaching its decision, and carefully considered the overall fairness of the proceedings. In considering this application, it balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, against the public interest in proceeding with the hearing in a timely manner. Having done so, the Committee was satisfied that the Respondent had been given an adequate opportunity to make arrangements to appear before it to argue his case in person and that he chose to voluntarily absent himself. Taking all these factors into account, the Committee concluded that it was fair and in the interests of justice to hear the case in his absence.
6. Mr Goodwin then opened the case on behalf of the Board. The background to this matter was that at the material time, the Respondent was a registered architect practising under the name of Michael Balla-Goddard Architects (“MBGA”), and subsequently, Spacedeal Limited trading as MGBA Architects. In or around September 2001, he was approached by Dr Catherine Hughes on behalf of herself and her partners (“the complainants”) at their medical practice at Plas Menai Surgery (“the Practice”). The proposal was that the Respondent was to design the conversion of their premises, obtain planning permission and oversee the conversion and construction. It was alleged that the Respondent was made aware that grant funding was being sought by the complainants (which required the submission of competitive tenders) and further, that the complainants had financial constraints that needed to be adhered to. The complainants also had to move into the new premises by the end of June 2004. It is alleged that between June and November 2003, the Respondent made little progress in producing a design and obtaining necessary tenders. The Quantity Surveyor instructed, Mr S, highlighted his concerns as to the consequence of the delay. It transpired that a strategy of granting a number of small contracts was implemented which resulted in substantial additional cost being incurred by the complainants. The project was also delayed, it was alleged, as a result of the Respondent’s failure to manage the project and advise the complainants as required.
7. By a letter dated 20 February 2009, Dr Hughes made a formal complaint to the Board regarding the Respondent’s conduct. Having entered into correspondence with the Board, further issues were raised giving rise to additional charges.
8. The Respondent has denied all of the allegations.
9. In reaching its decisions, the Committee has carefully considered the live evidence it heard, namely that of Dr MW, one of the practice partners, Mrs JW, the Practice Manager and Mr Christopher Smart, an architect and expert instructed by the Board to review the findings of Chris Calcroft, an Inquirer appointed by the Board to investigate the allegations made against Mr Balla-Goddard. It considered all the documentary evidence presented to it in the Report of the Board’s Solicitor together with the 1054 pages of documents exhibited to it which included the 75 page report from Mr Calcroft and Mr Smart’s 25 page report as well as Mr Balla-Goddard’s extensive written responses to the allegations. The Committee heard and accepted the legal advice given by the Clerk. It 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.
10. In considering the credibility of witnesses, the Committee took into account the fact that, by failing to attend this hearing, the Respondent had neither availed himself of the opportunity to fully cross-examine the witnesses who have attended to give live evidence (and who could have expected to have been cross-examined had the Respondent attended and chosen to do so), nor has he given evidence in person and subjected himself to cross examination by the Board’s solicitor. The Committee was advised by Mr Goodwin at the start of the second day of this hearing that the Board had received a telephone call from the Respondent, during which he stated that it had not been his intention to attend this hearing.
11. The Respondent denies all the allegations and asserts that any delays in the project proceeding and the rising costs for the project were attributable to the Doctors changing the brief to substantially expand it over and above what was initially proposed, i.e. to part convert the building to a surgery and nursing home, but subsequently to further develop it into what he describes as a “polyclinic” further incorporating a pharmacy and a veterinary practice. His submissions to the Committee, whilst lengthy, have been presented in written form only. It is a feature of those written submissions that they are not supported by other documents that could corroborate his assertions. Mr Calcroft, who had reviewed Mr Balla-Goddard’s file, in his report, makes frequent mention of the absence of file notes or other documents that might support the Respondent’s assertions. In contrast, the Committee considered JW, Dr MW and Mr Smart to be credible witnesses who gave honest and consistent accounts in evidence. The Committee saw no basis for concluding that their evidence was motivated by spite or malice. Mr Smart in particular, recognised that his conclusions were based on the findings of Mr Calcroft rather than as a result of his own independent investigation.
12. Following legal advice given by the Clerk, the Committee further took into account the obiter comments made in the case of Iqbal v Solicitors Regulation Authority (2012) that the public might expect a professional man to give oral evidence to give an account of his actions, yet Mr Balla-Goddard has not done so. In all the circumstances, the Committee has attached less weight to the written submissions made by Mr Balla-Goddard than it does to the live evidence of those witnesses called by the Board.
13. Turning to the allegations, the Committee makes the following findings:
14. Allegation 1a:
The Committee finds this allegation proved for the following reasons:
15. The Respondent’s terms of engagement were set out in his letter to the Practice dated 21 September 2001. It is apparent from the face of that letter that it does not include the required contractual terms in relation to the limitation of responsibilities or any provision for termination. In addition, no detailed description is set out as to the scope of the work to be undertaken, merely referring in the heading to “Redevelopment of Plas Menai Nursing Home….”. The Committee finds that this is an inadequate description for the purpose of Standard 4.1 of the 1997 Code. In the circumstances, the Committee finds that the Respondent is in breach of Standard 4 of the 1997 Code.
16. Allegations 1b, 1c, 1d and 1e:
17. Given that there is a substantial overlap in the evidence in respect of each of these allegations, these allegations have been considered together. In reaching its decisions, the Committee is mindful of the large number of individual allegations being made against the Respondent as evidenced by the length and detail of Mr Calcroft’s report and Mr Smart’s respective reports, together with the length of the Respondent’s responses to those allegations. The Committee has had regard to the fact that numerous failings have been alleged. However, the Board has, in many instances, been unable to particularise how these have specifically caused or contributed to either delay or an identifiable increase in project costs. Furthermore, in identifying alleged failings by the Respondent, the Board has not sufficiently adduced evidence of a duty on the Respondent, as opposed to another professional eg the Quantity Surveyor, to take such step(s). That being the case, the Committee has confined its findings and reasons to those areas of the evidence where the Committee is satisfied to the relevant standard that the allegations have been made out.
18. The Committee finds allegations 1b, 1c, 1d and 1e proved for the following reasons:
19. The Committee has considered the contents of the letter from Christopher Swale (the Quantity Surveyor) to the Respondent dated 19 November 2003:
20. He wrote to the Respondent following a meeting he had with the contractors on the same day, bringing to the Respondent’s attention his concerns, including the ability to be able to meet the deadline for completion of the project. He raised issues relating to heating and plumbing installations, electrical alterations, soil pipework and drainage. Recognising that the complainants had to be in occupation of the premises by the end of June 2004, because a year’s notice had to given on their current tenancy which expired then, Mr S identified a number of issues that “will result in delays to the transfer of the Surgery. Although the East end of the new premises may be able to be occupied by 31 March, the Doctors should be asked to immediately consider their position regarding accommodation from 30 June 2004 up to (possibly) October/November 2004….I appreciate that that the above is not welcome news. I look forward to hearing from you with the decision on the way the Doctors wish to proceed”.
21. It is clear from that letter that Mr S required the Respondent to take this important issue up with the complainants. He did not do so. He maintains that the Mr S advised the complainants by sending them a copy of this letter. The letter does not seem to indicate that a copy was sent to them. Both Mrs JW and Dr MW denied that they received a copy of that letter and both rejected the suggestion that they were informed of the position at a meeting the day after the letter was written as suggested by the Respondent. It was not accepted that such a meeting took place. The Respondent does not provide minutes of such a meeting. The delay in being able to occupy the new premises was of fundamental importance to the complainants given that they had to vacate their existing leased premises by the end of June 2004.
22. The Committee finds, given the contents of the letter, that it was incumbent on him to raise the issue with them. The Respondent accepts that he did not advise the complainants in writing. By failing to do so, the Committee finds that in respect of this allegation, he failed to carry out his work with due skill, care and diligence and further that he failed to keep his clients informed of material information and/or the progress of work.
23. The Welsh Development Agency (“WDA”) grant:
24. Dr MW clearly stated that the Respondent was aware that the complainants had to arrange funding to develop the site. Enquiries had been made of the WDA about the possibility of obtaining a grant from them. For this to be done, at least two competitive tenders would be required before approval could be given. As a result, it was important that timely designs and tenders were obtained as it was a condition of any grant that it be formally accepted before any work commenced. On 10 June 2003, Mrs JW wrote to the Respondent urging him to “finalise things”. It is alleged that between June and November 2003 little progress had been made. The complainants raised their concerns in a letter dated 21 October 2003. Due to the Respondent’s failure to provide tender information (which he was supervising), the application was delayed until January 2004 by which time construction works had started on the roof, windows and scaffolding which the Respondent had authorised. As a result, £50,000 of grant funding was not available to the complainants. The Respondent would have been aware from Mr S’s fax dated 9 January 2004 that the grant had to be accepted before work commenced. By allowing matters to proceed as they did, the Committee finds that the Respondent has failed to carry out his work with due skill, care and diligence and further that he failed to carry out his work without undue delay.
25. S278 Agreement:
26. On 21 June 2004, a final planning approval was granted for the inclusion of a vet’s surgery at the premises. The planning permission, together with the earlier approvals included two conditions that had to be complied with before the building could be occupied. These related to car parking, access and landscaping matters which had to be designed, approved and implemented into a S278 agreement. These conditions were known to the Respondent because the same conditions had been incorporated into the earlier planning consents dated 3 April and 24 November 2003. By a letter dated 3 June 2005, Conwy Borough council wrote to the Respondent confirming their understanding that he had told them that the complainants had taken occupation of the premises even though the necessary works had not been completed, in breach of the S278 agreement, and hence in breach of planning control. Although it transpired that no further planning application had to be made, the Respondent failed to ensure that the complainants did not take occupation while there were outstanding planning issues. The Committee does not accept that responsibility for the breach lies with the complainants as suggested by the Respondent, rather it lies with him to ensure that all planning conditions are met. Had that not have been the case, the Respondent would not have needed to make an application to vary one of the conditions at his own expense. If the planning consent had been invalid because of these breaches, this would have resulted in a significantly detrimental outcome for the complainants. It was both Mr Calcroft’s and Mr Smart’s expert opinions that this was a serious failing. The Committee finds that by failing to address this issue, the Respondent has failed to carry out his work with due skill, care and diligence.
27. Failing to advise as to costs:
28. It is agreed evidence that the scope of the project changed over time. The proposal in September 2001 was to convert and modernise Plas Menai to become a Nursing home and a doctor’s surgery. In due course, it was proposed that the project should also include a pharmacy and a vet’s practice and offices for social services. Changes in access to the premises, car parking space and further landscaping were required. These changes necessitated the further planning applications that were made.
29. On 19 November 2003, Mr S informed the Respondent that the original budget of £422,480 was too low and he considered that £496,414 was a more realistic figure. Despite the suggestion at the conclusion of that letter that the Respondent should find out how the doctors wished to proceed, for the reasons stated above, the Committee finds that the Respondent did not raise the issue of the increasing costs with the complainants. Mr Calcroft, who had inspected the Respondent’s file, saw no evidence that he had done so.
30. It is accepted by the Respondent that the costs of the project increased to approximately £1.2m. The Respondent asserts that the costs increased only because the complainants changed the nature of the project. Dr MW accepts that the project did change in its scope and accepted that that would have resulted in some increased costs, but he considered that the increases were disproportionate, and in excess of what had been budgeted for. Both Mr Calcroft and Mr Smart asserted that some of the additional costs would have been attributable to the Respondent’s failings but were unable to put a specific figure on it. Mr Calcroft in his report, refers to a number of areas where the Respondent was responsible for the escalation in costs. In summary, these relate to:
· The failure to organise proper surveys of the existing construction, most notably relating to the services;
· He did not undertake a proper budget estimate;
· He did not organise a single tender process and contract such as IFC98 which would have allowed the complainants to approve the cost of the works;
· The Respondent failed to organise the design team and procurement to ensure that the works were completed within the 11 month timeframe.
31. In his letter of 20 September 2004, Dr MW voiced his concern about the increase in costs. Having referred to previously anticipated costs being £575,000 incl VAT, he states “However additional costs totalling £125,000 were identified today which, as we explained will need to be met from appropriate cost savings in the remaining work. As we explained, we are extremely concerned regarding the costs and the need to keep as closely as possible to the budget, as we have minimal slack”.
32. On 21 October, Dr MW wrote:
“We are still in a state of stunned disbelief following yesterday’s meeting when you advised us that in addition to the £150K previously identified, there would be a further £85K + VAT to complete all the works….We would be grateful if you could identify where the increased costs have come from. We would appreciate it if you could identify all additional “extras”….so that we might have a realistic idea of the size of the problem we face here. You have been aware throughout of our budgetary constraints. We simply do not have the funds to cover this….”.
33. On 18 November, Dr MW wrote to the Respondent addressing his concerns as to the level; of costs. He stated that “Any work or costs not within these figures cannot be undertaken – we do not agree to, or sanction them”. In a letter dated 16 December 2004, Dr MW wrote:
“We have again received invoices from the roofers which in combination are well in excess of the original budget”. Again he requests ”a reply to my previous letters regarding……a clear understanding of where the money has gone”.
34. On 21 January 2005, Dr MW wrote to the Respondent as follows:
“We have been distressed by the developments of the last few days…You have been aware all along of our budget…The latest figures are at variance with this, what is perhaps most worrying is that when I ask a simple question of what they relate to, I cannot be given an answer, I find this frankly incredible. We have been asking for clear costs for months and still do not have them.”.
35. On 11 February 2005, a further letter on behalf of the practice was sent to the Respondent stating:
“As you know, we have become increasingly concerned about the projected costs to complete the works at Plas Menai. These costs have increased dramatically beyond the figures that were originally given to us. We need to know urgently what the costs to complete the construction work are going to be….”.
36. On 12 January 2006, Dr MW further wrote to the Respondent regarding the issue of costs:
“Scaffolding – I must admit to being annoyed and disappointed over this huge invoice…£16K!….However, although you informed me that there would be an invoice arriving, you actually told me that it would NOT be substantial. I do feel let down, that amount of money is very difficult to find quickly and when it has not been budgeted for…”.
37. The Respondent has not provided the Committee with evidence that he did keep the clients adequately informed about the rising level of costs or the issues raised by the complainants in their correspondence. As a result, the Committee concludes that, whilst there had been some communication between the Respondent and the complainants, there had not been an adequate explanation given regarding the increase in costs when requested. The Committee finds that the Respondent failed to discuss the impact on the budget of the ongoing progress with the project with the complainants. The Committee finds that the Respondent failed to keep the clients informed of material information and/or the progress of work undertaken on their behalf and/or any issue significantly affecting the quality and/or cost of the work(s). Such a failure amounts to a breach of standard 11.5 of the 2002 Code.
38. Contract procurement:
39. In his letter of 19 November 2003, Mr S stated that he had been actively considering a procurement route and set out the advantages of doing so. He stated that he believed that “it is in the best interests of the Doctors to delay commencement of the major construction works until everything is fully designed and costed (by a traditional, competitively tendered route)”. The Respondent, however, entered into a piecemeal procurement which he states was necessary to meet the complainants’ deadlines. Mr Calcroft disagrees, and the Committee accepts that this only became necessary because the Respondent failed to manage the design process in a timely manner to be “tender ready” by late 2003. Mr Calcroft, who had inspected the Respondent’s file, saw no evidence of a timeline showing how the designs, various trades or contracts overlapped. The file does not disclose an overall timescale or even a brief or set of room data sheets. The Respondent states that this information was kept on a computer file which was inadvertently destroyed. It would appear that none were printed and retained on file. The Committee consider that explanation to be convenient to the point of being implausible. Furthermore, the Committee rejects the Respondent’s suggestion that it was the complainants who required this method of procurement. It accepts the evidence of Dr MW that, as a lay client, he relied on the Respondent for his professional input. His inexperience in this field would make the assertion of the Respondent, unlikely.
40. The Committee substantially accepts the findings of Mr Calcroft that the procurement method set up by the Respondent was inappropriate because:
1. there was a risk of increased costs,
2. the Respondent could have undertaken the management role but he failed to do so,
3. he failed to advise the complainants of the need for a construction/project manager with this style of procurement,
4. the lack of tenders militated against the WDA grant and
5. in December 2013, the design and scope of the conversion works was insufficiently developed to justify, save for the windows and roofing.
41. The Committee considers that, even if it was the doctors’ decision to proceed in this way (which the Committee does not accept), it was incumbent on the Respondent to advise them that it would not be in their interests to proceed in this way. The Committee has seen no evidence that this took place. The Committee therefore rejects the Respondent’s explanation regarding how the procurement process was put into place.
42. In addition, the Committee accepts the findings of Mr Calcroft that had the Respondent, being aware of the deadline for the complainants vacating their premises, produced either a procurement or design team programme, it would have been apparent that a structural engineer and an M & E engineer would have to be appointed. However, that was not done until July 2003 and December 2003 respectively. The instruction of these consultants was fundamental to the project but the Respondent inappropriately delayed in ensuring their appointment.
43. The Committee finds that these failures amount to the Respondent acting without undue skill, care and diligence, that he failed to carry out his work without undue delay and that he failed to organise and manage his professional work responsibly and with regard to the interests of his clients. The Committee finds that such failures amount to breaches of standards 4.2 and 11 of the 2002 Code.
44. Lift installation:
45. In late 2003, the Respondent advised/instructed the complainants to place an order with Liftech directly to carry out lift installation works at the surgery. The Committee makes no finding that the Respondent acted inappropriately by failing to secure other tenders. Whilst it might have been sensible to have done so, the Respondent states that Liftech were familiar with the location, having previously serviced the existing lift. The Board has provided no evidential basis upon which the Committee could conclude that such a decision was inappropriate, notwithstanding that there were subsequent failings in their work.
46. However, the Committee finds that the Respondent failed to identify the requirement for a 3 phase electrical supply which was stated in Liftech’s own specification. The Respondent failed to check the existing supply and the Committee agrees with Mr Calcroft’s conclusion that he failed to arrange for an uprated electrical supply to be installed. Such a failure has led the Committee to conclude that the Respondent has acted without due care, skill and diligence in breach of standard 4.2 of the 2002 Code.
47. So far as the allegation that the Respondent failed to deal with a dispute(s) and/or complaint(s) concerning his work and/or fees promptly and appropriately is concerned, the Board relies on the numerous expressions of concern contained in correspondence from the complainant to the Respondent, of which, the following are examples:
20 September 2004:
“As you became aware, there were a number of areas of concern to us regarding the Plas Menai project”.
1 October 2004:
“We again expressed our deep concern regarding the costs of the project – our funds being exhausted and we are reliant upon the funding…which you are a party to….You also advised us that the building works for social services would be completed by November….”
15 October 2004:
“As you may have noticed I am very worried about progress or lack of”.
21 October 2004:
See relevant extract from this letter above.
18 November 2004:
“further to our discussions last week you will be aware of our profound unhappiness with the development of the project. We are significantly overspent and significantly delayed….The continued delays are jeopardising the arrival of the tenants, who may pull out and this would leave us in an even worse mess….I have written to you before regarding costs restriction, I must advise you that we do not intend to borrow any more money”.
21 January 2005:
See relevant extract from this letter above.
10 May 2005:
“We are extremely disappointed and dissatisfied with what is taking place. This project should have been completed months ago. It is massively over time and over budget. When is it going to end?”
10 February 2006:
“We are fed up with the delays…This has been going on for months”. In respect of concerns regarding planning, the complainant wrote: “This needs urgent resolution. What’s is the real problem?”.
14 March 2008:
“It is now two weeks into the first of our recent letters that you have not responded to…..Ignoring us will not make this all go away, simply irritate us more”.
7 October 2008:
“We have raised numerous concerns regarding your actions and inactions over the course of this project and for the most part, have received inadequate or no explanation. This has been the most unpleasant of episodes…”.
48. Whilst these various letters may not formally have been headed with the word “complaint”, the Committee is satisfied from the content of the letters and from the context in which they were written, that the complainants were deeply unhappy with the service being provided by the Respondent. The Committee finds that the essence of the correspondence was of a complaining nature and should have been addressed by the Respondent. He has produced no evidence to enable this Committee to conclude that he dealt with these issues promptly or appropriately. By failing in this regard, the committee finds that the Respondent has acted in breach of Standard 12 of the 2002 Code.
49. Allegation 1f:
50. The Committee finds this allegation proved for the following reasons:
51. In respect of fees that the Respondent was entitled to charge, in his appointment letter dated 21 September 2001, he stated:
“The services to be provided will be encompassed by sections A to L in the plan of work….Fees will be calculated on a percentage basis of the contractual sum of 10% and will be billed on a stage by stage basis after stages a & B, C, D, E/F/G, and after L. this amounts to 10% of construction costs…..There will be disbursements, which cover admin, postage and printing.”.
52. A number of invoices were enclosed in the bundle of documents provided to the panel including invoices dated 21 November 2001, 12 January 2005, 1 May 2005 and 12 August 2008. In each of those invoices, the Respondent included an admin charge of 2% in addition to his fees which effectively meant that his fee percentage was 12%, in excess of the agreement. The Committee finds no basis for concluding that this charge represents a disbursement as the Respondent does not seek reimbursement for an actual expense incurred. Rather it represents a variable sum. That being the case, the Committee finds that the Respondent ought to have known that such sum could not be justified.
53. The Committee makes the same finding in respect of the Respondent’s actions in adding VAT to his invoices when he was not VAT registered. His terms of engagement letter makes no reference to VAT, but more importantly, he sought to add VAT to his invoices when he was not VAT registered. To do so was wholly inappropriate, even if he was in the process of applying for registration. Until such time as a VAT number had been given, VAT should not have been charged. The fact that the Respondent states that he rescinded an invoice from July 2007 (of which Mr Calcroft could find no supporting evidence), does not detract from the fact that he made a claim for costs that he ought to have known he could not justify.
54. By his conduct, the Committee finds that the Responded has failed to avoid an action or situation which is inconsistent with his professional obligations in breach of standard 1 of the 2002 Code.
55. Allegation 1g:
56. The Committee finds this allegation proved for the following reasons:
57. When the Respondent was initially instructed in 2001, the appointment was of M Balla-Goddard Architect, i.e. he was acting in person. He stated in his letter of appointment dated 21 September 2001 that he carried indemnity insurance cover. As at the date of Mr Calcroft’s report (i.e. 17 March 2011), the Respondent had not provided evidence of professional indemnity insurance to cover the period from when he was appointed whilst he was carrying on practice on his own account. He subsequently applied for insurance but this was in the name of Spacedeal Ltd, trading as MGBA and did not relate to the earlier period when he was acting in person. Spacedeal was formed in 2004 and took over the project from the Respondent in person in 2005. Evidence of cover was requested by the Board by a letter dated 27 April 2009. Mr Calcroft noted in his report that he could find no evidence of insurance cover between 2001 until 2005 when the Respondent was acting in person. Notwithstanding the Respondent’s repeated written assertions that copies of indemnity insurance have been sent to ARB, no such evidence for the period in question has been received. The Committee therefore finds this allegation proved. By failing to provide evidence of insurance cover as required by the Board to ensure compliance with his obligation to not undertake professional work without adequate and appropriate professional indemnity insurance cover, the Respondent has acted in breach of Standard 8.3 of the 2002 Code.
58. Having found the facts of all the allegations proved, the Committee went on to consider whether the Respondent’s conduct amounts to unacceptable professional conduct / serious professional incompetence. In reaching its determination, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the clerk.
59. Having found the allegations proved, the Committee finds that the Respondent’s conduct falls substantially below the standard expected of a registered architect and in breach of the various standards of the 1997 and 2002 Codes as outlined above. His failings caused the complainants an unexpected, substantial financial burden and considerable distress. Whilst the Committee has found that the failings found proved do relate to the standard of his professional work, the Committee considers that his failings can properly be categorised as unacceptable professional conduct, and the Committee therefore makes such a finding. Given that, the Committee makes no finding of serious professional incompetence.
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE DECISION ON PENALTY
In the matter of
Mr Michael Balla Goddard (049272H)
15 October 2013
Architects Registration Board
8 Weymouth Street
Mr Julian Weinberg (Chair)
Ms Linda Read (PCC Lay Member)
Mr Donal Hutchinson (PCC Architect Member)
Mr Stephen Battersby (Clerk to the PCC)
Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of the Board
Mr Balla Goddard did not attend and was not represented
1. Insufficient time being available to conclude the hearing, it was adjourned part-heard until 15 October 2013 at which hearing, Mr Balla-Goddard also did not personally attend. The Committee therefore gave consideration as to whether to proceed with the resumed hearing in the absence of Mr Balla-Goddard and in doing so, considered the matter in the same manner in which it dealt with Mr Balla-Goddard’s absence from the last hearing.
2. In reaching its decision, the Committee bore in mind that the Board emailed Mr Balla-Goddard on 1 October seeking confirmation as to whether he would be attending today’s hearing. On the 14 October 2013, at 8.51am, Mr Balla-Goddard emailed ARB and confirmed that he would not be attending the resumed hearing, but that he would send in further documentation for the Committee to consider which was sent by email at 17.38 on that date. Given that, the Committee was satisfied that Mr Balla-Goddard was aware of today’s hearing and that he had chosen to voluntarily absent himself from it. It therefore determined that it was fair and in the interests of justice to proceed with the resumed hearing in his absence.
3. In reaching its decision on sanction, and in considering 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 performance.
4. The Committee has carefully considered all the evidence in this case, Mr Goodwin’s submissions, together with Mr Balla-Goddard’s typewritten comments inserted in the Committee’s decision that he sent to the Board yesterday, insofar as it relates to this stage of the hearing.
5. It has heard and accepted the advice of our 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 Mr Balla-Goddard’s interests, the indicative sanctions guidance and the need to act proportionately, taking into account all the aggravating and mitigating factors in this case, and in doing so, it has exercised its own independent judgement.
6. The Committee has had regard for the fact that Mr Balla-Goddard has had an unblemished career spanning over 30 years and that there have been no previous adverse findings made against him.
7. However, The matters found proved reflect serious and widespread failings on Mr Balla-Goddard’s part, both in respect of his relationship with his clients and the Board. His failings caused the complainants significant stress as well as a substantial, unexpected financial burden. The claiming of VAT when he ought to have known that that was not justified also calls into question his integrity.
8. Notwithstanding that Mr Balla-Goddard has made further submissions in response to the Committee’s decision, it does not contain any expression of remorse or other indication that he has any meaningful insight into his actions. In spite of the Committee’s findings, he maintained in his email yesterday that “I maintain that I have always acted judiciously”. Given his persistent lack of insight into the seriousness of his failings or their consequences, the Committee cannot have confidence that such conduct would not reoccur. The Committee has not received any testimonials or references from him.
9. As such, the Committee considers that the imposition of a sanction is necessary and in considering which is the appropriate and proportionate sanction, has considered them in ascending order of severity. The Committee considers that, given the aggravating features of this case, neither a reprimand nor a penalty order would be appropriate to reflect the gravity of his conduct.
10. The Committee next considered whether a suspension order was appropriate. Having carefully considered the Indicative Sanctions Guidelines, the Committee considered that such a sanction would be insufficient to protect the public or the reputation of the profession.
11. Given the aggravating factors set out above, and taken in the round, Mr Balla-Goddard’s failings are fundamentally incompatible with continuing to be an architect. The Committee considers that the matters found proved are so serious that only erasure from the register will protect the public and / or the reputation of the profession.
12. The Committee therefore directs that Mr Balla-Goddard’s name be erased from the register. Such erasure is permanent though an application may be made to ARB for re-entry after no less than two years. The Committee sees no reason for making any contrary recommendation; hence it recommends that Mr Balla-Goddard shall be entitled to apply for re-entry in no less than two years’ time.