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Mr Nicholas Baldry

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr Nicholas Baldry (075639C)

Held on 5 and 6 April 2018

At

Architects Registration Board

8 Weymouth Street

London

W1W 5BU

———-

Present

Mr Julian Weinberg (Chair)

Mr Roger Wilson (PCC Architect Member)

Ms Jules Griffiths (PCC Lay Member)

Ms Fiona Barnett (Clerk)

———–

In this case, the Board is represented by Jonathan Goodwin.

Mr Baldry has attended this hearing but is not legally represented.

The PCC found Mr Baldry guilty of unacceptable professional conduct (“UPC”) in that he:

1. Failed to communicate adequately with his client;

2. Terminated the contract without informing his client and that by doing so, he acted in breach of Standard 6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).

The sanction imposed was a six month suspension from the Register of Architects.

 

Charge and allegations

1. In this case, the Board is represented by Jonathan Goodwin. Mr Baldry has attended this hearing but is not legally represented. Mr Baldry faces a charge of unacceptable professional conduct (“UPC”) based on two allegations in relation to breaches of Standards 2 and 6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) in that:

1. he failed to communicate adequately with his client;

2. he terminated the contract without informing his client.

Allegation background

2. On 3 April 2017, Mr RJ (“the Complainant”) made a complaint to the Architects Registration Board (ARB) about the Respondent who he had appointed as Contract Administrator in relation to an extension of his property. Initial correspondence passed between the Complainant and the Respondent regarding finding a suitable builder. RM Extensions Ltd was selected by the Complainant.

3. Subsequently, excavation work unearthed a pipe crossing the footprint of the extension of which there was no prior knowledge. Prior to that point, there had been no dispute between the parties. On 24 November 2015, the Complainant emailed the Respondent informing him that “The building site was shut down today by her Majesty’s Health and Safety Executive”. It is alleged that the Respondent neither responded to that email or a further 23 emails between then and 13 March 2016, requesting that the Respondent contact the Complainant as he needed to speak to him. One email during that period, dated 27 November 2015, confirmed that the contractor had addressed the concerns of the HSE and that “building work has begun again”.

4. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant. It also considered the documentary evidence presented to it in the Report of the Board’s Solicitor and the 103 pages of documents exhibited to it, which include the Respondent’s detailed written representations to the Board. The Committee also had sight of the Respondent’s defence statement. The Respondent also gave live evidence.

5. The Respondent denies the factual allegations and therefore denies that his conduct amounts to UPC. It is his case that he had not been notified that the Health and Safety Executive (HSE) had allowed the site to reopen and that he had not been provided with supporting evidence. He stated that to have allowed work to continue would have amounted to a declaration that the site was safe and exposed the Respondent to liability in damages for any accident / injury and potentially to criminal liability. It is his case that he had not seen the Complainant’s emails of 24 and 27 November 2015 confirming that the site had been reopened. In any event, to have allowed work to resume on the strength of the Complainant’s email would, he stated, have been seriously negligent.

6. 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. Neither the seriousness of the allegation nor the seriousness of the consequences affects the standard of proof to be applied.

7. The Committee makes the following findings of facts:

Allegation 1.1

8. The Committee finds the facts proved for the following reasons:

9. The Complainant gave clear and credible evidence that he sent the Respondent the 24 emails in question, copies of which have been provided to the Committee. The Respondent stated in evidence that he did not receive the Complainant’s emails of 24, 25 and 27 November 2015. He also stated that, after the time of the email of 24 November, he spoke to the Complainant about the possibility of instructing an alternative site agent. However, there is no evidence before the Committee that he gave adequate advice as to how to proceed in the light of the HSE’s decision to close the site or of its implications for the project moving forward.

10. The Respondent accepts that, in respect of the other 21 emails, he did not respond to them. This, he stated, was because having spoken to the Complainant about the HSE’s decision to close the site, he subsequently spoke to his insurance broker who informed him that he should not have any further communication with the Complainant. The Respondent concluded that “all work has to stop” which the Respondent stated included communicating with the Complainant.

11. The Committee does not accept the Respondent’s version of events as being plausible for the following reasons:

• in the absence of any evidence that the Respondent’s emails were bouncing back, the Committee considers it inherently unlikely that the Respondent had received the 21 emails the Complainant sent, but not the three emails referred to above. This is particularly so given that the Respondent accepts that he had received an email from the Complainant at 19.03 on 24 November 2015, but not an email sent four minutes later stating that the site had been shut down;

• that there would not have been any obvious reason for the Respondent contacting his insurance broker then as no allegation had been made against him at that point that gave rise to any liability for damages such that his insurer would need to be contacted;

• notwithstanding his evidence that his reason for not responding to the Complainant’s emails was because he had been advised by his broker not to communicate with the Complainant, the Respondent, nevertheless in his email of 10 May 2016 (when he next communicated with the Complainant), suggested that he had not been in contact because of health reasons. No mention of his broker’s advice was made. The Committee noted that there was no corroborating evidence of any such advice having been given to him;
• similarly, when he wrote to the ARB on 16 June and 10 October 2017, responding to the complaint made against him, he failed to state that his broker had advised him not to respond to the Complainant. Indeed, in his letter of 16 June, he states that, had he informed his insurers, “The insurers would, following normal practice, have instructed that I should have no further involvement with the works and no further communication with the Employer (Mr RJ) and the Contractor”.

12. In the circumstances, the Committee concluded that this explanation was not credible and that his lack of response to the Complainant’s emails was not as a result of the broker’s advice.

13. Standard 2 of the Code states:

Competence

2.1 …..

2.2 You are expected to make appropriate arrangements for your professional work in the event of incapacity, death, absence from, or inability to, work.

2.3 …..

2.4 …..

14. The Respondent stated that during the relevant period, he was working. There is no other evidence before the Committee that the Respondent was unable to work because of incapacity, absence from or an inability to work. In the circumstances, the Committee considered that the respondent has not acted in breach of Standard 2 of the Code.

15. Standard 6 of the Code states:

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.

6.2 You should carry out your professional work without undue delay and, so far is reasonably practicable, in accordance with any time-scale and cost limits agreed with your client.

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.

6.4 ….

16. This Standard, the Committee finds, imposes an obligation on an Architect to respond to correspondence from his client, which the Respondent repeatedly failed to do. In any event, even if the Respondent had not received the Complainant’s emails of 24, 25 and 27 November, he did not respond to 21 other emails that he accepts he had received. The Committee therefore concluded that the Respondent failed to communicate adequately with his client and that he therefore failed to carry out his work faithfully, conscientiously and with skill and care in breach of standard 6 of the Code.

17. Allegation 1.2

18. The Committee finds the facts proved for the following reasons:

19. It is an agreed position between the parties, that the Respondent did not expressly terminate his contract with the Complainant. It is the Board’s case that this can be inferred from all the surrounding circumstances by the Respondent’s failure to respond to the emails referred to in respect of allegation 1.1. The Committee notes that the Respondent accepts that, having been advised that the HSE had closed the site, “work has to stop”. This, the Respondent stated in evidence, related to everything he did on the project. The Committee notes that there is no evidence before it that the Respondent sought to update himself as to whether the HSE had reopened the site or whether the issues had been resolved. Having stopped all work on the project, the Respondent accepts that he did not periodically check what was happening in this regard or seek any update from the HSE, the Complainant, the contractor or anybody else. The Complainant gave evidence that he had been left to deal with the problems alone, and the Respondent accepted that.

20. Whilst not expressly terminating the contract, the Committee nevertheless finds that by wholly withdrawing from undertaking any further work on the project, including checking whether the problems had been resolved, that the practical effect of his actions was to terminate the contract. Given the lack of engagement with the Complainant as found above, the Committee therefore finds that he terminated the contract without informing his client. By acting as found proved, the Committee finds that the Respondent acted in breach of Standard 6 of the Code.

Finding on Unacceptable Professional Conduct

21. Having found allegations 1.1 and 1.2 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.

22. 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. The Committee reminds itself that a finding of UPC is a matter for its own judgment.

23. The Committee recognises that any failing should be serious. The Committee has borne in mind the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and 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 (The Queen on the Application of Dr Malcolm Noel Calhaem –v- General Medical Council [2007] EWHC 2606 (Admin). Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as, “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”. The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin).

24. The Respondent, having been appointed as Contract Administrator, repeatedly failed to communicate with the complainant or provide any explanation to him for being unable to substantively respond. This occurred despite the Complainant having made 24 increasingly desperate email requests for contact over a period of five months, to resolve legitimate concerns he had about the project following closure and reopening of the building site by the HSE. The Respondent, by failing to engage with the Complainant, left him “to deal with my building works alone, with no reason or notice”. He only responded when legal proceedings were threatened some seven months after the first request for contact. In refusing to undertake any further work for the Complainant or engage with him at all, the Respondent’s conduct fell substantially below the standard expected of a registered Architect. His actions and the corresponding breaches of the Code, are serious and adversely impact both on the reputation of the Architect and the profession generally.

25. The Committee therefore finds that the Respondent’s conduct as found proved in respect of allegations 1.1 and 1.2 both individually and collectively, amount to unacceptable professional conduct, which finding the Committee so makes.

Sanction

26. Mr Baldry addressed the Committee in mitigation.

27. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

28. Having taken into account the Respondent’s submissions, the Committee has identified the following mitigating factors:

• that the Respondent has no adverse regulatory history;
• this was an isolated incident;
• he has engaged in the regulatory process;
• he stated that he recognises the impact his conduct has had on the complainant and his family. He is conscious of his failings and recognises that he acted inappropriately and that he should have responded to the requests from the Complainant. However, his expression of regret has come late in the day. The Committee also considers that he has failed to demonstrate significant insight into the effect of his actions on the reputation of the profession;
• he has not personally benefitted from his conduct, financially or otherwise, but he has put his own interests before that of his client;
• he has reduced his working hours to manage his workload. In addition, he states that he now has access to an architect colleague, although the Committee notes that he works as a contractor with that architect, and not as a partner or employee. As such, the Committee is not satisfied that he is under the necessary level of scrutiny to satisfy the Committee that his failings would not be repeated;
• the Committee accepts that undergoing this regulatory process and having a finding of UPC against him has been a chastening experience.

29. The Committee has identified the following aggravating factors:

• this was a serious failing that resulted in material inconvenience to the Complainant in having to manage the project without the Respondent’s input when the Complainant had clearly and repeatedly expressed his frustration at not being able to contact the Respondent;
• he sought to lay responsibility for his failure to be aware that the site has been reopened by the HSE on the Complainant, when he had been appointed as Contract Administrator.

30. The Committee notes that the matters found proved are serious to the extent that Mr Baldry’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.

31. 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 given the aggravating factors identified.

32. The Committee then considered whether to impose a penalty order and concluded that such a sanction was neither appropriate nor proportionate to protect the public or the reputation of the profession. The UPC found proved is too serious for the imposition of a penalty order.

33. The Committee then considered whether to impose a suspension order. The Committee has had regard to the overall principle of proportionality. Having done so, the Committee has concluded that the public, and the public interest would be adequately protected by the imposition of a suspension order. The period of the order shall be for a period of six months. This, the Committee considers, reflects the gravity of the Respondent’s UPC found proved. In reaching its decision, the Committee was mindful that the Respondent’s conduct is not fundamentally incompatible with continuing to be an architect and as such, considered that an erasure order would be disproportionate and unduly punitive.

34. That concludes this determination.

 

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