Mr Nicholas John
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Nicholas John (069831H)
Held on 7 & 8 August and 19 October 2017
8 Weymouth Street
Mr Julian Weinberg (Chair)
Mr David Kann (PCC Architect Member)
Ms Jules Griffiths (PCC Lay Member)
Ms Genevieve Bushell (Clerk)
Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of the Architects Registration Board (“ ARB”).
Mr John has attended this hearing and is legally represented by Mr Mark Klimt, of DWF LLP Solicitors.
1.1 Failed adequately, or at all, to provide an effective and efficient service to his client; 1.3. Failed adequately, or at all, to deal with a dispute and/or complaint appropriately;
1.4. Failed to act with integrity in that: 1.4.1. He failed and/or delayed in refunding money to his client after advising her that he would repay it;
and that by doing so, he acted in breach of Standards 1,2.3 and 10 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).
The sanction imposed was a two year suspension from the Register of Architects.
Mr John faces a charge of unacceptable professional conduct (“UPC”) and serious professional incompetence (“SPI”) based on four allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) in that:
1.1. He failed adequately, or at all, to provide an effective and efficient service to his client;
1.2. He failed adequately, or at all, to carry out his professional work faithfully, conscientiously and with due regard to relevant technical and professional standards in that he failed to undertake work according to his client’s brief;
1.3. He failed adequately, or at all, to deal with a dispute and/or complaint appropriately;
1.4. He failed to act with integrity in that:
1.4.1. He failed and/or delayed in refunding money to his client after advising her that he would repay it; and/or
1.4.2. He made repayment of the money conditional on the removal of adverse feedback on MyBuilder
and that the Respondent therefore acted in breach of Standards 1.1, 1.2, 2.1, 2.3, 6, 6.1, 10, 10.1, 10.2 and 10.3 of the Code.
1. This case arises out of a complaint made by Ms DA (“the Complainant”) in relation to services provided by the Respondent in relation to preparing drawings for a planning application for a listed building. The appointment was made through the MyBuilder.com website.
2. It is alleged that, following an exchange of emails, an agreed fee of £1600 was to be paid, £800 in advance and the balance of £800 on completion of all drawings. The recitals in an alleged agreement dated 4 March 2016 refers to the scope of work as:
“The Client has instructed the Architect to prepare and submit online full Planning Application to listed building in conservation area, according requirements in Pre-Planning report….Which will include:
• Site visit consultation
• Full Survey
• Itemised list of drawings to be undertaken in the property for Listed Planning consent
• Existing drawings
• Proposed drawings
• DWG drawing.”
3. The initial £800 payment was made on 29 February 2016. There then followed a number of emails between the parties regarding whether the wording of the recitals in the agreement required amending, given that there was a disagreement between the parties as to what work was required. As a result, the relationship between the parties deteriorated and on or about 4 March the Respondent agreed to repay the Complainant the £800 she had paid. The Complainant then posted unfavourable feedback about the respondent on the MyBuilder.com website. Following that, the Respondent stated that he would only refund the £800 if she took down the negative posting. The Respondent repaid the £800 in early 2017.
4. The factual allegations are denied as are UPC and SPI.
5. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant and the Respondent together with the documentary evidence presented to it in the Report of ARB’s Solicitor and the exhibited 126 pages of documents, which included the Respondent’s response to the allegations. The Committee has also had sight of a statement from the Respondent together with supporting documentation.
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 ARB and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC or SPI is a matter for the Committee’s independent judgment to which no burden of proof applies.
Findings of Fact:
The Committee makes the following finding of facts:
7. Allegation 1.1:
The Committee finds the facts proved for the following reasons:
The Complainant gave clear evidence as to the nature of the work that she required the Respondent to carry out. The Committee has had regard to the corroborating extracts from the communications between the parties on the MyBuilder website in which the Complainant stated that she was “looking for an Architector [sic] to make drawings for planning and listed building application”, stating that “The pre-planning is done”. Despite this, the Respondent sent an undated agreement to the complainant on 29 February 2016, referring to the scope of work as being: “The Client has instructed the Architect to prepare the full Listed Pre-App submission drawings for the Conservation Consent”. The Respondent gave no explanation as to why the scope of work was framed as it was, given the description on the MyBuilder website. There then followed an exchange of a number of emails between the parties in which the Complainant sought to clarify the scope of the work that was required to be undertaken. On 1 March 2016, the Complainant sent the Respondent a detailed email setting out what she understood to be the work required stating: “The wording below follows the scope of work”. It sets out the work required, a payment term and the time scale for completion of the work.
8. Whilst the Complainant’s evidence was generally credible and consistent, on one central issue, it was not. The Complainant consistently maintained that the Respondent never understood the scope of work he was required to undertake. The Committee notes that in her complaint to the ARB, the thrust of the complaint was that the Respondent, despite his assertions that he understood what needed to be done, “does not understand the difference between Pre-application advice and submission of Application for Planning Permission and Listed Building Concern (PP and LBC)”. However, this position is inconsistent with the Complainant’s subsequent evidence that the Respondent, on 2 March 2016, sent her an amended contract, which he had signed. That copy of the contract produced by her, incorporated all the terms set out by the Complainant in her email of 1 March, including the scope of the work to be carried out. At the hearing, she produced a copy of an email sent to her by the Respondent at 19.01 on 2 March 2016 stating: “Please find our revised agreement for you”. It is an agreed position that that contract was not signed by the complainant.
9. However, despite the fact that the documentation suggested that the Respondent had understood the scope of work required, the Respondent denies that he sent this copy of the contract to the Complainant. His evidence on this point, however, lacks credibility and is inconsistent. In denying he sent the Complainant this copy of the contract he gave a number of differing accounts:
1. He initially stated that he did not send the email;
2. He then stated, that if he did, there were no attachments sent with it;
3. He then stated that he never sent the Complainant that copy of the revised contract incorporating the changes that appear on the unsigned contract purportedly dated 4 March 2016.
10. The Committee does not accept the Respondent’s inconsistent version of events. The Complainant was able to produce copies of the contract as attachments from the Respondent’s email. In addition, the suggestion that a revised agreement was sent is entirely consistent with two texts the Respondent sent the Complainant confirming that he had “changed the agreement please email back signed copy” and “Daria we sent revised agreement yesterday” and his email of 2 March 2016 confirming that he had just sent the Complainant a text. The Respondent was not able to adduce any corroborating evidence that any other form of contract wording was sent to the Complainant. Given those emails, the Committee considers the Respondent’s position, that he did not send an amended contract, quite implausible and this undermines the credibility of his evidence generally. His position that there was no purpose in sending an amended contract given that the Complainant had not signed the contract dated 29 February 2016 is implausible as the Complainant clearly did not accept the recitals in the 29 February contract, and an amended version was required. In the Committee’s view, this was not a case of a client seeking to unilaterally change the terms of an agreed contract, as submitted by the Respondent, but indicates a client seeking to ensure that the scope of work as defined in a contract, yet to be agreed, reflects what she required.
11. Standard 2 of the Code states:
2.3 You are expected to ensure that the necessary communication skills and local knowledge are available to you to discharge your responsibilities.
12. The Committee accepts that, a site visit having taken place, and having spoken to the Planning Officer, the Respondent appreciated that the project was bigger than he at first appreciated, and that this would involve additional fees over that originally quoted. The Complainant accepts that the Respondent sought to increase his fees which supports the Respondent’s position that this was discussed with her. However, the Respondent accepts that this, and the increased scope of work required, was not evidenced in writing. The Complainant was clear in her evidence that she considered that the Respondent had not sufficiently understood what work was required, hence her decision to terminate their relationship on 4 March.
13. The Committee accepts that the Respondent acted diligently and promptly in taking steps to establish what work was required from the Planning Officer, but the Committee finds that the Respondent failed adequately to provide an effective and efficient service to his client in establishing clear agreement with the Complainant as to what the scope of work should be. The Respondent accepts that it is best practice to record in writing what is agreed with a client to help with regularising any misunderstanding between the parties. The Respondent failed in that regard in this case.
14. In the circumstances, the Committee finds allegations 1.1 proved. By reason of the facts found proved, the Committee finds that the Respondent acted in breach of Standard 2.3 of the Code.
15. Allegation 1.2
The Committee finds the facts not proved for the following reasons:
The Committee has had regard to the nature of the client’s brief. In short, it was to
prepare drawings for a listed building planning application. The Complainant required this to
be done by 8 March 2016.
16. It is not proposed to repeat the chronology as relevant facts are set out above, but it is clear that it was the Complainant’s view that the Respondent had not initially understood what was required of him, and that additional costs would be involved and therefore, she terminated the relationship on 4 March 2016. The Respondent accepts that at that point, there had not been a meeting of minds as to what was required.
17. However, that being the case, the Committee considers that no criticism can legitimately be levelled against him for failing to complete the work by 8 March 2016 when his retainer was terminated on 4 March. In the circumstances, the Committee finds that the Respondent had not failed, adequately, or at all, as alleged. The Committee therefore finds allegation 1.2 not proved.
18. Allegation 1.3
The Committee finds the facts proved for the following reasons:
The Respondent accepts he had a dispute that the Complainant regarding the scope of work
required for the project. The Committee has had sight of a number of texts. It is not
contested that these were sent by the Respondent.
19. In response to one text addressing the Respondent’s failure to understand the scope of the work required, he responded: “Rubbish and know I’m dealing with a Russian client and they don’t talk to me the way you do to me. Yesterday you just talked all the time and never let me speak or you said was no no no no to everything I said!!”. In another, he texted: “I will pay you back as you’re not an honourable person who doesn’t pay her bills!!!”. In a further text, he wrote: “I’m now in meetings and my partner is furious with you she’s really angry and wants to give you a piece of her mind I will be in touch but that is the end of the texts”.
20. Standard 10 of the Code states:
“Deal with disputes or complaints appropriately
10.2 Complaints should be handled courteously and promptly at every stage; and as far as
practicable in accordance with the following time scales:
a) an acknowledgement within 10 working days from the receipt of a
b) a response addressing the issues raised in the initial letter of complaint
within 30 working days from its receipt
10.3 If appropriate, you should encourage alternative methods of dispute resolution, such as mediation or conciliation.”
21. The Committee rejects the Respondent’s evidence that his actions were, in the circumstances, justified. There was no evidence before the Committee that the Complainant did not pay her bills. On the contrary, she had paid the initial payment of £800 promptly. The Respondent gave conflicting accounts to justify the text. However, the assertion by the Respondent that this was intended to relate to the balance of the £1600 to be charged lacks credibility as no invoice had been raised for the balance as that amount was not due at the time he sent the relevant text. The Respondent then offered an entirely different explanation stating that, if he had returned the £800, then the Complainant would not have paid the £800. To suggest that this would justify the assertion that the Respondent failed to pay her bills, in the Committee’s view, wholly lacks credibility and the Committee rejects the Respondent’s assertion on this issue.
22. Similarly, the Committee rejects the Respondent’s evidence that the truncated nature of texting explains the tone of the Respondent’s texts. The Committee is mindful that registered Architects are obliged under the Code to address disputes and complainants appropriately, irrespective of the means of communication used. The obligation is on the Respondent to ensure that the wording and tone of communications is appropriate.
23. In the Committee’s view, the Respondent’s texts were needlessly aggressive and impolite, pertained to nationality when there was no basis for doing so, and were inappropriate. The respondent, after some questioning, accepted this to be the case and that he regretted what he had said. As such, the committee finds the facts of this allegation proved and that the respondent acted in breach of standard 10 of the Code.
24. Allegation 1.4
The Committee finds the facts proved for the following reasons:
25. As set out in the Committee’s findings in respect of allegation 1.3, the Respondent stated by text, it appears on 4 March 2016, that he would repay the Complainant £800. At that point, the offer was not conditional on any action by the Complainant. However, despite a number of emails sent to the Respondent, he failed to repay the money in a timely manner. On 17 March 2016, the Respondent emailed the Complainant stating “We will need to see you take off negative feedback before payment is made those are our terms”. On 17 March, he emailed the Complainant a number of times stating: “I want this negative feedback removed then will pay it’s that simple….This is not open for discussion, we already will pay you back but I am not also going to lose my account at MyBuilder because of you….I have made our position clear on this matter, you need to contact MyBuilder to request the negative feedback be withdrawn and that we should be reinstated, it was a mistake and you acted hastily I will give you my word we will pay you back”.
26. The Committee rejects the Respondent’s evidence that in texting “I will pay you back” he intended to text “I will not pay you back”, hence denying he genuinely offered a repayment. Whilst that was his initial position, in his statement, he accepted in response to questions put to him in cross examination, that he did agree to offer to refund the £800 (which would be consistent with later emails offering to repay the money). However, he subsequently resiled from that position, once again asserting that he intended to say that he would not repay the Complainant. In the Committee’s view, the Respondent’s repeated changing of position is symptomatic of a lack of credibility and further undermines his evidence generally.
27. It is agreed evidence that, without knowing the precise date when the repayment was made, that £800 was repaid to the Complainant in early 2017, several months after the Respondent initially stated that he would refund the Complainant.
28. In the circumstances, the Committee finds that the Respondent delayed in refunding money to his client after advising her that he would repay it.
29. Allegations 1.4.2
The Committee finds the facts proved for the following reasons:
From the evidence referred to above in respect of allegation 1.4.1, the Committee finds that
the Respondent made repayment of the money conditional on the removal of the adverse
feedback on MyBuilder.
30. Standard 1 of the Code states:
“Honesty and Integrity
1.1 You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.
1.2 You should not make any statement which is contrary to your professional opinion or which you know to be misleading, unfair to others or discreditable to the profession.”
31. In considering whether the Respondent’s conduct amounted to a lack of integrity, the Committee has borne in mind the case of Newell-Austin v SRA  EWHC 411 (Admin) which set out the following principles:
1) Integrity connotes moral soundness, rectitude and steady adherence to an ethical
2) No purpose is served by seeking to expatiate on the meaning of the term. Lack of integrity is capable of being identified as present or not by an informed tribunal by reference to the facts of a particular case
3) Lack of integrity and dishonesty are not synonymous. A person may lack integrity even though not established as being dishonest. An example, might depending on the particular facts, be the position of a solicitor taking money out of a client account and from time to time making good any deficiency, when convenient……..it is clear that, by contrast with the test of dishonesty, the test of “lack of integrity” is an objective test alone. A distinction must be drawn between subjective knowledge of the facts of the underlying conduct (which are alleged to give rise to the lack of integrity), and subjective knowledge of the fact that the conduct would be regarded by reasonable people as lacking in integrity. There is no requirement that a solicitor must “subjectively” realise that his conduct lacks integrity”.
32. The position was clarified in the case of Williams v SRA  EWHC 1478 (Admin) which concluded that the concepts of dishonesty and want of integrity are separate and distinct. It rejected the principle on Malins v SRA that dishonesty and want of integrity are the same thing that must be proved to the same standard. Want of integrity arises when, objectively judged, a solicitor fails to meet the high professional standards expected of a solicitor. It does not require the subjective element of conscious wrongdoing.
33. It is entirely understandable that the Respondent did not wish to have negative feedback placed on the MyBuilder website. In reaching its decision, the Committee has particularly borne in mind that, in addition to requesting the negative feedback be withdrawn, he requested that the Complainant state that “it was a big mistake” and “you acted hastily”. However, in the Committee’s view, by failing to honour his statement that he would repay the £800 for several months, and by subsequently making it subject to a condition that the Complainant retract unfavourable feedback, which she posted only after the Respondent continued to fail to repay her, his conduct amounts to a lack of integrity. Members of the public should rightly be able to expect that a professional architect honours his word, and does not subsequently impose conditions before he does. The Respondent, by acting as found proved, failed in those regards.
34. In finding allegations 1.4.1 and 1.4.2 proved, and by reason of the above, the Committee finds that the Respondent failed to act with integrity. The Committee therefore finds allegation 1.4 proved and that the Respondent acted in breach of Standard 1 of the Code.
Finding on Unacceptable Professional Conduct / Serious Professional Incompetence:
35. Having found allegations 1.1, 1.3, 1.4, 1.4.1 and 1.4.2 proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC / SPI. UPC is defined as conduct which falls short of the standard required of a registered person.
36. Serious professional incompetence relates to the quality and application of the professional skills architects need to do their job. In particular circumstances, some acts or omissions may amount to both incompetence and unacceptable conduct. Serious professional incompetence is a serious failure to meet the required standard of skill expected of a member of the profession undertaking a similar kind of job at the same time. It can relate to something that an architect has or has not done, but an unexpected or unsatisfactory outcome is not in itself proof that an architect has been seriously incompetent.
37. Because the facts and circumstances of each case are different, it is not possible to identify the exact point where incompetence becomes serious incompetence; however the following features make it more likely to be viewed as serious:
• When the consequences are, or could have been, particularly serious
• Where the architect’s standard of competence falls significantly below that expected
• Where a number of failings, while not serious individually, together demonstrate a pattern of incompetence
• Where a pattern of incompetence suggests an architect may not act competently in the future
38. 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 or SPI. 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 / SPI is a matter for its own judgment.
39. 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 need for a level of moral opprobrium was further confirmed in the case of Shaw v General Osteopathic Council  EWHC 2721 (Admin). 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”.
40. The Committee has taken into account both Mr Goodwin’s and the Respondent’s submissions.
41. However, so far as the matters found proved and the corresponding breaches of the Code are concerned, the Committee finds that both individually and collectively, the Respondent’s failings represent conduct falling below the standard expected of a registered Architect. The Respondent’s failure to effectively communicate with his client to ensure that both parties understood and agreed what was required led to misunderstandings and confusion, and to the breakdown of the architect / client relationship within a matter of a few days of being instructed. His conduct represents a material falling short of the standard expected of an Architect.
42. Registered Architects are expected to deal with complaints and disputes appropriately so that clients can have confidence that any issues of difference between them and the architect will be properly resolved. For the reasons stated above, the Respondent failed in that regard. His conduct in respect of this matter represents a substantial falling short of the standard expected of an Architect.
43. Those matters found proved in each of the sub particulars of allegation 1.4 demonstrate a lack of integrity and breach of standard 1 of the Code and had the potential to disadvantage his client financially. The facts of allegation 1.4.2 reflects conduct intended to pressurise the Complainant into withdrawing her complaint. These represent serious failings and in the judgment of the Committee amount to conduct falling substantially below the standard expected of a registered architect.
41. The Committee therefore finds that the Respondent’s conduct as found proved in respect of allegations 1.1, 1.3, 1.4.1 and 1.4.2 can quite properly be categorised as amounting to unacceptable professional conduct, rather than serious professional incompetence. The Committee therefore finds that the Respondent’s conduct as found proved amounts to UPC. For the avoidance of doubt, the Committee makes no finding of SPI.
42. Mr Klimt addressed the Committee in mitigation.
43. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the ARB and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgment and has taken into account that in considering which sanction to impose, sanctions should be considered in ascending order of severity.
44. Having taken into account the Respondent’s submissions, and his personal circumstances, the Committee has identified the following mitigating factors:
• he has engaged in the regulatory process;
• he has not personally gained from his failings;
• the UPC found proved occurred over a relatively short period of time;
• the Respondent did repay the £800, albeit that it took him several months and that the complaint had already been made to the ARB;
• he has provided a testimonial attesting to his professionalism;
• he has expressed an apology to the Committee (as opposed to the Complainant), and he has taken some remedial action to address confusion that may occur between himself and clients
• by designing a new memorandum of agreement document he sends to clients.
45. The Committee has identified the following aggravating factors:
• he has demonstrated very little insight into his failings in that he has not demonstrated that he understands the impact of his conduct on the reputation of the profession;
• the texts he sent to the Complainant also made a wholly inappropriate reference to her ethnicity, a fact that in the Committee’s view, cannot be excused by his personal circumstances;
• importantly, he was the subject of a reprimand imposed by the PCC on 5 June 2015. Two of the allegations the Respondent faced were in respect of failing to provide an effective and efficient service to his client and for failing to deal with a client’s complaint appropriately. The matters before the Committee today relate to the same failings which occurred less than a year after that sanction was imposed when he had stated in mitigation at the hearing in June 2015, that he was appalled by the nature of the messages he sent his client. That there should be a recurrence of his UPC when the PCC in June 2015 accepted from the Respondent that he had taken corrective steps to prevent a recurrence of his failings, makes his conduct on this occasion, particularly serious. The Committee cannot help but conclude that the imposition of the reprimand was insufficient to avoid a repeat of the Respondent’s UPC.
46. In the circumstances, the Committee considers the risk of repetition of his unacceptable professional conduct to be high.
47. The Committee notes that the matters found proved are serious to the extent that Mr John’s failings diminish both his reputation, and that of the profession generally and amount to a repetition of UPC within a year of a PCC sanction being imposed. Furthermore, the UPC on this occasion relates to matters of his professional integrity, a characteristic that the public are entitled to consider as a bedrock of a professional Architect. 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.
48. The Committee first considered whether to impose a reprimand. Given the aggravating factors identified above, the Committee considered that such a sanction was neither appropriate nor proportionate.
49. The Committee then considered whether to impose a penalty order and concluded that such a sanction was neither appropriate nor proportionate for the same reasons.
50. The Committee then considered whether to impose a suspension order. In reaching its decision, it identified that there were present a number of factors that would ordinarily warrant the imposition of an erasure order, as opposed to a suspension order: the Committee considered the risk of repetition to be high, the UPC reflected a lack of integrity and the Respondent had demonstrated a lack of insight into the seriousness of his failings and their consequences.
51. However, the Committee also identified that, subject to having a requisite level of insight, the Respondent’s failings were capable of remediation. Additionally, the Committee has had the overall principle of proportionality at the forefront of its mind. Having done so, the Committee has concluded, in what was a finely balanced decision, 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 two years. This, the Committee considers, reflects the gravity of the Respondent’s UPC when, having been the subject of a PCC sanction a year previously, it was incumbent on him to have taken far greater care to ensure that he fully complied with his professional obligations. Having been in that position, the fact of his further appearance before this Committee is a matter entirely of his own making.
52. The Committee concluded that, in all the circumstances, erasure would be unduly punitive.
53. That concludes this determination.