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Mr Philip Orchard

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Philip Orchard 034579B

Held on 16 August 2018

At

International Dispute Resolution Centre
70 Fleet Street
London
EC4Y 1EU

———-

Present

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

 Rosemary Rollason (Clerk)

———–

In this case, the Board is represented by Ms Kathryn Sheridan, of Kingsley Napley.

Mr Philip Orchard has attended this hearing but is not legally represented.

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

  1. Did not enter into a written agreement with the client which adequately covered the terms of engagement contrary to standard 4.4 of the Architects Code

 

The sanction imposed is a reprimand.

Allegations

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

The Architect did not enter into a written agreement with the client which adequately covered the terms of engagement contrary to standard 4.4 of the Architects Code.

Background

  1. This case arises out of a complaint made by SW (“the Complainant”) in August 2017. It is alleged that the Respondent failed to provide her with written terms of engagement as required by the Code.

 

  1. The Respondent was appointed in May 2016 to assist in the obtaining of planning permission to build a property at the side of her house so that she could then sell her property with the benefit of that permission. It is alleged that the Respondent stated he could prepare the necessary plans and that he would require two blank cheques. One would be for payment of approximately £300 for the Council’s fees and the other would be for his fees which would be for around £700. The cheques were subsequently cashed for the amounts of £385 and £840 respectively. Planning permission was initially refused.

 

  1. A further application for planning permission was subsequently submitted and additional invoices raised by the Respondent. A dispute arose between the Respondent and the Complainant resulting in the Respondent commencing proceedings in the small claims court for recovery of his fees, which proceedings were settled.

 

  1. It is alleged that the Respondent failed to provide written terms of engagement as required by standard 4 of the Code either in respect of the initial work undertaken or in respect of the additional work regarding the second application for planning permission.

 

  1. The factual allegation and UPC are both admitted.

 

  1. In reaching its decisions, the Committee has carefully considered the documentary evidence presented to it in the Report of the Board’s Solicitor and the 100 pages of exhibited documents. No live evidence has been heard. 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, irrespective of the Respondent’s admission.

 

Findings of Fact

 

  1. The Committee makes the following finding of facts:

 

Allegation 1:

 

  1. Having taken into consideration the unchallenged statement of the Complainant and on the basis of the Respondent’s admission to the facts alleged, the Committee finds the facts proved.

 

  1. Standard 4 of the 2010 Code states (amongst other things):

 

  1. Standard 4.4:

 

  1. “You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the Complainant 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 the Board;
  • your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration).”

 

  1. The Respondent admits the factual allegation made in the Complainant’s statement that he failed to provide code compliant terms of engagement. In the circumstances, the Committee finds the facts proved. By reason of the facts found proved, the Respondent acted in breach of Standard 4 of the Code.

 

Finding on Unacceptable Professional Conduct

 

  1. Having found the allegation proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC, 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.

 

  1. 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.

 

  1. 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).

 

  1. The Committee has taken into account both Ms Sheridan’s submissions and the Respondent’s admissions. The Committee is entitled to take the Respondent’s admission into account but recognises that it is not determinative of the issue.

 

  1. 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 Complainant 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 Code is serious because it gives rise to the potential for misunderstandings and confusion, and to the breakdown of the Architect / Complainant 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.

 

  1. The Committee has also borne in mind that the Respondent, whilst not subject to a previous adverse regulatory finding, was the subject of a recommendation from the Investigation Committee of the ARB in August 2006 to ensure that he provided complainants with code compliant terms of engagement. As such the Respondent should have been particularly aware of his obligations in this regard.

 

  1. The Committee therefore concluded that the Respondent’s conduct represents a serious departure from the standard expected of a registered Architect. Those failings, the Committee has concluded, are sufficiently serious to amount to UPC, which finding the Committee therefore makes.

 

Sanction

 

  1. The Respondent addressed the Committee in mitigation. He submitted that it was appropriate for either no order, or a modest financial penalty to be imposed.

 

  1. In considering 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 and has exercised its own independent judgement.

 

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

23.1 That the Respondent has no adverse regulatory findings in a career spanning over 40 years;

23.2 he has engaged in the regulatory process and fully admitted his failings;

23.3 he has apologised for his failings to both the Complainant, ARB and to the Committee and expressed his embarrassment and remorse for having to appear before the Committee;

23.4 he has not personally gained financially from his failings;

23.5 he has stated that, as a result of this hearing, he has learned his lesson, and he has addressed his failings by taking corrective action in now sending complainants compliant terms and conditions to avoid a repetition of the failings that have brought him before this Committee.

 

  1. The Committee has identified the following aggravating factor:

 

24.1 the Respondent had been the subject of a previous ARB Investigation Committee recommendation (as distinct from a finding) regarding ensuring that he provided complaint terms of engagement, albeit in 2006. As a result, he should have had a heightened awareness of the need to comply with this element of the Code.

 

  1. In the circumstances, the Committee considers that the risk of repetition of his UPC 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.

 

  1. 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.

 

  1. The Committee then considered whether to impose a penalty order and concluded that such a sanction would be an inappropriate and disproportionate sanction to impose given the suitability of a reprimand.

 

That concludes this determination.

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