Select Page

Mr Philip John Mitchell

THE ARCHITECTS REGISTRATION BOARD PROFESSIONAL CONDUCT COMMITTEE

In the matter of
Mr Philip John Mitchell (044786B] Held on 1 & 2 August 2018
At

Architects Registration Board 8 Weymouth Street London
W1W 5BU

———-

Present

Mr Julian Weinberg (Chair)
Mr Roger Wilson (PCC Architect Member) Mr Steve Neale (PCC Lay Member)

Ms Fiona Barnett (Clerk) ———–

ARB is represented by Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate Ltd. Mr Mitchell has attended this hearing but is not legally represented.

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

1.1. 1.2.

He failed to enter into a written agreement with his client prior to undertaking any professional work in the period 25 October 2016 – 15 February 2017; and He failed to adequately set out his terms of engagement in writing in that the letters sent by the Respondent to his client dated 16 and 28 February 2017 failed to include reference to;

  • Who will be responsible for what;
  • Any constraints or limitations on the responsibilities of the parties;
  • The provisions for suspension or termination of the agreement, including anylegal rights of cancellation;
  • A statement that the Respondent had adequate and appropriate insurance cover as specified by ARB;
  • The existence of any Alternative Dispute Resolution schemes that the contract is subject to and how they might be accessed;
  • That the Respondent had a complaints handling procedure available on request;
  • That the Respondent is registered with the Architects Registration Board and thathe is subject to the Code.and that by doing so, he acted in breach of Standards 4.4 and 4.6 of the Architects Code: Standards of Conduct and Practice 2010 and Standard 4.4 of the revised version of 2017.The sanction imposed was a reprimand.

Charge and Allegations

1. Mr Mitchell faces a charge of unacceptable professional conduct (“UPC”) based on two allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2010 (“the 2010 Code”) and the Architects Code: Standards of Conduct and Practice 2017 (“the 2017 Code”) in that:

  1. 1.1.  He failed to enter into a written agreement with his client prior to undertaking any professional work in the period 25 October 2016 – 15 February 2017;
  2. 1.2.  He failed to adequately set out his terms of engagement in writing in that the letters sent

by the Respondent to his client dated 16 and 28 February 2017 failed to include reference to;

  • Who will be responsible for what;
  • Any constraints or limitations on the responsibilities of the parties;
  • The provisions for suspension or termination of the agreement, including any legal rightsof cancellation;
  • A statement that the Respondent had adequate and appropriate insurance cover asspecified by ARB;
  • The existence of any Alternative Dispute Resolution schemes that the contract is subjectto and how they might be accessed;
  • That the Respondent had a complaints handling procedure available on request;
  • That the Respondent is registered with the Architects Registration Board and that he issubject to the Code.

Background

  1. This case arises out of a complaint made by Mrs AP (“the Complainant”) in June 2017 in relation to the Respondent’s alleged failure to provide her with written terms of engagement as required by the 2010 and 2017 Codes, following his instruction regarding the redevelopment of her property.
  2. On 25 October 2016, the Respondent met the Complainant at the site she wanted to redevelop. In November 2016, the Respondent provided the Complainant with a Preliminary Development Appraisal and produced site layout plans. It is alleged that there were further meetings and discussions between November 2016 and February 2017, but that the Respondent failed to provide written terms of engagement prior to undertaking any professional services.
  3. The Respondent wrote to the Complainant by letters dated 16 and 22 February 2017 regarding his fees and the scope of work, but it is alleged that those letters failed to comply with his professional obligations as set out in allegation 1.2.
  4. On 1 March 2017, the Respondent emailed the Complainant indicating that he had undertaken work until that date to the value of £3000, amounting to 25 hours work at £120 per hour, but stating that “I have probably spent many more than 25 hours to date”. There then followed much correspondence from the Complainant including requests that the project be put on hold and from the Respondent seeking payment of further fees.
  5. The factual allegations and UPC are denied.
  6. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant and the documentary evidence presented to it in the Report of the Board’s Solicitor and the 74 pages of exhibited documents. The Committee has also heard live evidence from the Respondent and considered his statement and letters from two witnesses, Mr T and Mr D, both of whom are architects. Neither of those individuals have attended to give live evidence. 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.

Findings of Fact

8. The Committee makes the following finding of facts:

Allegation 1.1

  1. The Committee finds the facts proved for the following reasons:
  2. The Respondent accepts that he was retained by the Complainant in October 2016. The Complainant gave clear and unchallenged evidence that, prior to his commencing work, the Respondent had not provided any written terms of engagement to her. The Respondent initially stated that until the scope of the project was fully understood, it was not appropriate to submit his written terms of engagement to the Complainant. He also stated that, when submitting his terms of engagement, that would, as would be his normal practice, be restricted to the scope of work and the fee structure. His initial position was that it “is the client’s responsibility to request the full terms and conditions referred to in 4.4 if they are of particular interest to the client’s understanding of the contract being formed between two parties”. It was his position that “All of the points would have been clarified by me on request as is my normal procedure had they been asked for”.
  3. However, in response to questions from Mr Goodwin by way of cross examination, he accepted that his retainer commenced in October 2016 and that he had failed to enter into a written agreement with his client prior to undertaking any professional work in the period 25 October 2016 – 15 February 2017. It was undisputed that it was not until the Respondent sent his letters dated 16 and 28 February 2017, that the Complainant was sent any terms of engagement. By that time, he had undertaken work over a period of four months, for which he submitted an invoice for £3000 covering approximately 25 hours of work. He subsequently acknowledged that he should have provided written terms of engagement prior to undertaking professional work for the Complainant and now accepts that his terms of engagement should comply with the Board’s Code.
  4. The Committee has considered the hearsay letters of Mr D and Mr T, both of whom gave their opinion as to what would be normal practice for an architect in these circumstances. However, it has attached little weight to their evidence: they seek to provide opinion evidence but their

statements have not been tendered as those of an expert, and they have not attended to give live evidence and therefore their evidence has not been subject to the scrutiny of cross examination. The Committee has not at this stage taken into account such parts of their respective statements as relate to matters of pure mitigation.

13. Standard 4 of the 2010 Code states (among other things):

Standard 4.4:

  • “You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:
  • the contracting parties;
  • the scope of the work;
  • the fee or method of calculating it;
  • who will be responsible for what;
  • any constraints or limitations on the responsibilities of the parties;
  • the provisions for suspension or termination of the agreement;
  • a statement that you have adequate and appropriate insurance cover as specified by theBoard;
  • your complaints-handling procedure (see Standard 10), including details of any specialarrangements for resolving disputes (e.g. arbitration).” Standard 4.6:

• 4.6 You are expected to ensure that your client agreements record that you are registered with the Architects Registration Board and that you are subject to this Code; and that the client can refer a complaint to the Board if your conduct or competence appears to fall short of the standards in the Code.

14. In the circumstances, and particularly given the Respondent’s admission to the factual allegations made in response to questions put to him in cross examination, the Committee finds the facts proved.

15. By reason of the facts found proved, the Respondent acted in breach of Standard 4.4 and 4.6 of the 2010 Code.

Allegation 1.2

  1. The Committee finds the facts proved for the following reasons:
  2. The Committee has had sight of the Respondent’s letters dated 16 and 28 February 2017. It is clear on the face of those letters, and it was accepted by the Respondent, that, whilst reference was made to the scope of the work and the proposed fee, those letters, as a matter of fact, failed to include reference to the matters referred to in the allegation.
  3. In the circumstances, and particularly given the Respondent’s admission to the factual allegations made in response to questions put to him in cross examination, the Committee finds the facts proved.
  4. Standard 4.4 of the 2017 Code states:“You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:
    • […]
    • who will be responsible for what;
    • any constraints or limitations on the responsibilities of the parties;
    • the provisions for suspension or termination of the agreement, including any legal rights ofcancellation;
    • a statement that you have adequate and appropriate insurance cover as specified by ARB;
    • the existence of any Alternative Dispute Resolution schemes that the contract is subject toand how they might be accessed;
    • that you have a complaints-handling procedure available on request;
    • that you are registered with the Architects Registration Board and that you are subject tothis Code.”
  5. By reason of the facts found proved, the Respondent acted in breach of Standard 4.4 of the 2017 Code.

Finding on Unacceptable Professional Conduct

  1. 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. Any finding of UPC is a matter for the Committee’s independent judgment.
  2. 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.
  3. The Committee recognises that any failing should be serious, such that it would attract a degree of opprobrium. 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).
  4. The Committee has taken into account both Mr Goodwin’s, and the Respondent’s submissions.
  5. However, so far as the matters found proved and the corresponding breach of the Code are concerned, the Committee finds that the Respondent’s failings represent conduct falling below the standard expected of a registered Architect. Compliance with Standard 4 ensures that both the Architect and the client understand their respective contractual obligations and forms the

foundation of the relationship between them. The Respondent’s failure to comply with Standard 4 of the Codes is serious because it gives rise to the potential for misunderstandings and confusion, and to the breakdown of the Architect / client relationship. Compliance with the Codes may well have averted the very misunderstandings that occurred in this case and which led to the breakdown in the professional relationship – the Complainant and the Respondent were at odds as to whether work being undertaken was chargeable or indeed, even, at times, whether the retainer was ongoing.

  1. The Respondent had chosen not to submit written terms and conditions at the outset of the project as the Complainant had not decided on what type of development she wanted to pursue, even though a charge was made for his services. In addition, and in any event, it was not the Respondent’s normal practice to clarify his terms and conditions unless specifically asked to do so. He accepted that, despite being aware of the Board’s Codes, he had not sent compliant terms of engagement to clients for some 35 years. He accepted that, for example, he could not inform clients of his firm’s complaints handling procedure, because, even though he had not been the subject of previous complaints, he did not have one.
  2. Whilst his failings, as the Respondent submitted, amount to an omission on his part, it was an intentional one, which the Committee concluded represents a serious departure from the standard expected of a registered Architect. Those failings, the Committee has concluded, are sufficiently serious in respect of allegations 1.1 and 1.2, both individually and collectively to amount to unacceptable professional conduct, which finding the Committee therefore makes.

Sanction

  1. The Respondent addressed the Committee in mitigation.
  2. 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.

  1. Having taken into account the Respondent’s submissions, the Committee has identified the following mitigating factors:
    1. that the Respondent has no adverse regulatory history in a career spanning 35 years;
    2. he has engaged in the regulatory process;
    3. he has apologised for his failings;
    4. his failings were not motivated by malice nor, does the Committee accept, did heintentionally flout his professional obligations;
    5. he has not personally gained financially from his failings;
    6. he has stated that, as a result of this hearing, he will address his failings by taking correctiveaction in sending clients compliant terms and conditions to avoid a repetition of the failings that have brought him before this Committee.
  2. Whilst the Respondent has produced supportive references, the Committee has attached little weight to them given that it is apparent from those documents that their authors have a limited understand of their obligations under Standard 4 of the ARB Code.
  3. The Committee has identified the following aggravating factors:
    1. he has demonstrated limited insight into his failings because, up until the point of cross examination, the Respondent had failed to appreciate what was required of him or the importance of complying with the requirements of Standard 4. He failed to take personal responsibility for his failings, blaming the Complainant for failing to request terms of engagement from him;
    2. whilst the allegations relate to a single client, the Respondent’s failures are a result of longstanding systematic failings in his practice procedures.
  4. In the circumstances, the Committee considers that the risk of repetition of his unacceptable professional conduct is low.
  1. The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
  2. The Committee first considered whether to impose a reprimand. Given the mitigating factors identified and the low risk of repetition, the Committee considered that such a sanction was appropriate and proportionate. The Committee therefore imposes a reprimand. Such a sanction adequately reflects the seriousness of the UPC found proved and would adequately protect the public and the public interest.
  3. The Committee then considered whether to impose a penalty order and concluded that such a sanction would be inappropriate and disproportionate sanction to impose given the suitability of a reprimand.
  4. That concludes this determination.

Pin It on Pinterest

Shares
Share This