Mr Seth Handley
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Seth Handley (60473I)
Held on 6 October 2017
8 Weymouth Street
Mr Julian Weinberg (Chair)
Ms Jules Griffiths (PCC Lay Member)
Ms Judy Carr (PCC Architect Member)
Ms Genevieve Bushell (Clerk)
In this case, the Board is represented by Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate.
Mr Handley has attended this hearing and is legally represented by Mr David Bradly.
1.1.Failed adequately to set out his terms of engagement in writing, contrary to standard 4.4 and 4.6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) in that he:
1.1.1. Failed to provide details of his complaints handling procedure 1.2. He failed to act with integrity and/or to avoid any actions or situations which were inconsistent with his professional obligations in that he:
1.2.1. Inappropriately restricted his client’s right to make a claim against him to a period of 1 year and/or restricted quantum in respect of all claims to £80,000; and/or
1.2.2. Failed to advise his client adequately, or at all, as to the limitation of liability and quantum for all claims particularised in 1.2.1; and/or 1.2.3.
Made representations to his client which were inaccurate and misleading by referring in his letter of appointment dated 2 May 2014 to “the Standard RIBA Conditions of Appointment for an Architect for a Domestic project 2010” and/or “our agreement to these standard conditions…..”, when these terms were not standard and/or had been amended in part.
1.4. He failed adequately, or at all, to deal with a complaint appropriately in that he;
1.4.2. Intimated a claim for costs which he knew, or ought to have known, he could not justify in relation to his dealing with the complaint and that by doing so, he acted in breach of Standards 1,6 and 10 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”). The sanction imposed is a penalty order in the sum of £1000.
Mr Handley faces a charge of unacceptable professional conduct (“UPC”) based on four allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) in that:
1. He failed adequately to set out his terms of engagement in writing, contrary to standard 4.4 and 4.6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) in that he:
1.1.1 Failed to provide details of his complaints handling procedure; and/or
1.1.2 Failed to adequately specify the fee for his work; and/or
1.1.3 Failed to record that he was registered with the ARB, subject to the Code and that the client could refer a complaint to the Board if his conduct or competence appeared to fall short of the Standards in the Code.
1.2 He failed to act with integrity and/or to avoid any actions or situations which were inconsistent with his professional obligations in that he:
1.2.1 Inappropriately restricted his client’s right to make a claim against him to a period of 1 year and/or restricted quantum in respect of all claims to £80,000; and/or
1.2.2 Failed to advise his client adequately, or at all, as to the limitation of liability and quantum for all claims particularised in 1.2.1; and/or
1.2.3.Made representations to his client which were inaccurate and misleading by referring in his letter of appointment dated 2 May 2014 to “the Standard RIBA Conditions of Appointment for an Architect for a Domestic project 2010” and/or “our agreement to these standard conditions…..”, when these terms were not standard and/or had been amended in part.
1.3 He failed to carry out his professional work faithfully, conscientiously and with due regard to relevant technical and professional standards in that he;
1.3.1 Failed to advise his client adequately, or at all, and/or seek his client’s agreement to an increase in the construction costs; and/or
1.3.2 Raised an invoice dated 31 May 2015 based on the increased construction costs without his client’s agreement.
1.4 He failed adequately, or at all, to deal with a complaint appropriately in that he;
1.4.1 Refused to meet with his client to attempt to resolve the complaint; and/or
1.4.2 Intimated a claim for costs which he knew, or ought to have known, he could not justify in relation to his dealing with the complaint
and that the Respondent therefore acted in breach of Standards 1.1, 1.2, 4.4, 4.6, 6, 6.1, 6.2, 6.3, 10, 10.1, 10.2 and 10.3 of the Code.
1. This case arises out of a complaint made by JK (“the Complainant”) on 13 June 2016 in respect of the professional services carried out by the Respondent who at the time was trading as “AEW architecture”.
2. The allegations are that, in his terms of appointment, the Respondent sought to restrict the extent of his liability, both as to the amount that could be claimed, but also in respect of the period within which a claim could be made against him. It is also alleged that the Respondent’s terms of engagement failed to include all those matters required to be included by the Code.
3. The Respondent prepared drawings in relation to the project, based on what was considered to be an anticipated construction cost of £90,000 and invoiced the Complainant in August 2014 on that basis. In March 2015, the Respondent emailed the Complainant making reference to projected building costs of £160,000, which sum the Complainant queried. Because of the increase in projected costs, which the Complainant queried, he suggested that the Respondent meet him to discuss the situation.
4. At the conclusion of the tendering stage, the relationship between the Complainant and the Respondent had broken down. Having been invited to do so by the Complainant, the Respondent then submitted an invoice to the Complainant. This was calculated on a percentage basis of the designed construction costs of £190,000, representing the extension costs of £160,000, loft costs of £20,000 and landscaping / decorating of £10,000, rather than the costs as built. The Complainant queried the basis for calculating the invoice. In subsequent correspondence, the Respondent stated that he was keeping a record of his time for responding to the complaint, stating that he charged £150 an hour plus VAT for non-architectural work.
5. Save for allegation 1.1.1 which is admitted, the factual allegations are denied by the Respondent. It is further denied by the Respondent that any allegations found proved are not so serious so as to amount to UPC.
Submissions of no case to answer
6. At the conclusion of the Board’s case, Mr Bradly made an application of no case to answer in respect of allegations 1.1.3, 1.3.1 and 1.4.1 pursuant to Rule 16c of the Professional Conduct Committee Rules (“the Rules”).
7. Allegation 1.1.3
Mr Bradly submitted that there was no evidence upon which the Committee could find the facts of this allegation proved. He submitted that the relevant information was contained in the RIBA Conditions of appointment for an Architect for a Domestic Project 2010 (2012 revision) that the Respondent sent to the Complainant. That document states: “Individual architects are required to be registered with the Architects Registration Board, and are subject to its Code ad to the professional disciplinary sanction of the Board in relation to complaints of unacceptable professional conduct or serious professional incompetence”. That document was initialled by the Complainant.
8. Mr Bradly recognised that Standard 4.6 of the Code states:
“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.”
9. He submitted that there was no case to answer because the sentiment of what was contained in the RIBA document, mirrored the requirements of Standard 4.6, even if the exact words were not used. The practical effect was that the necessary information had been given. Mr Bradly subsequently submitted that, in any event, any shortcoming in this regard was incapable of amounting to UPC.
10. Mr Goodwin opposed the application. He submitted that the importance of the correct wording being used was important, as it did not highlight the fact that it was open to a client to make a complaint to the Board. Its omission was therefore a matter of some seriousness. He further submitted that any decision regarding whether there was a case to answer should relate to the facts alone, and not the question of UPC.
11. In considering these submissions, the Committee heard and accepted the advice of the Clerk. It has applied to the regulatory nature of these proceedings, the test as set out in the case of Galbraith, namely:
(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury…. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.
12. The Committee has borne in mind that, at this stage, it is not making any finding of facts.
13. It notes that the wording of Rule 16c of the Rules merely states that a submission of no case to answer can be made at the conclusion of the Board’s case. It is silent as to whether it is open to a Committee to consider there was a case to answer on UPC at this juncture. Given that the Rules do not preclude such a consideration, the Committee concluded that it was open to it to consider whether the evidence, if found proved, could support a finding of UPC. Additionally, given that the facts of this allegation turned solely on the documentation before it, the Committee saw little purpose in allowing this allegation to go forward if a Committee could not find UPC even if the facts were capable of proof.
14. Having considered the documentation and the submissions, the Committee considers that, given the omission of express reference to the client being able to refer a complaint to the Board, that there is sufficient evidence upon which the factual allegation could be found proved.
15. However, the Committee has gone on to consider whether, even if found proved, a Committee could find that, in the circumstances, the Respondent’s failure could amount to UPC.
16. The Committee has borne in mind that whilst the wording used in the RIBA conditions document does not faithfully reflect the requirement of Standard 4.6, the extent to which it fails short of satisfying that requirement is limited. The Respondent has relied on a document produced by his professional membership body. The Committee has borne in mind that for a finding of UPC to be made, it must identify a serious falling short of the standard expected of a registered Architect, and that such failing should carry a level of moral opprobrium. In all the circumstances, the Committee considers that, even if the factual allegation were capable of being found proved, that a Committee could not find the necessary level of culpability for a finding of UPC to be made.
17. The Committee therefore finds that there is no case to answer in respect of this allegation. It therefore dismisses this allegation.
18. Allegation 1.3.1
In respect of allegation 1.3.1, Mr Bradly submitted that there was no evidence to support the allegation. His client, he submitted had clearly advised as to there being an increase in costs, making reference to the Respondent’s emails dated 4 August 2014, 4 February 2015 and 16 March 2015. That series of emails, he submitted, shows that the Respondent, having initially advised that he considered £90,000 to be a realistic price for the project, subsequently advised that “the extension you can get for £160k”. By stating that the cost had increased, he submitted that it followed that, by definition, he was seeking his client’s consent to that increased cost.
19. Mr Goodwin opposed the application. He submitted that the Respondent had an understanding of the client’s budget range, but having stated that the price had increased, had not given any indication as to how that sum had been arrived at. By failing to do so, there was sufficient evidence to find that there was a case to answer that the Respondent had failed to adequately advise the Complainant about the increase in construction costs. Furthermore, he submitted, the Respondent’s correspondence did not specifically seek the Complainant’s agreement to the increased costs, when he could have asked if he agreed to them, in circumstances where the Complainant relied on the Respondent for his professional advice. Mr Goodwin submitted that the Complainant’s email response to being advised of an increased construction cost figure of £160,000 makes it clear that the Complainant had not agreed to the increase costs.
20. The Committee has had regard to the contents of the Complainant’s email to the Respondent dated 30 January 2015. In it, he states that he wants to see the cost of the specification. The Respondent’s email of 16 March 2015, stating that the cost of the project would now be about £160,000, does not provide this information. At this stage, the Committee has not received any evidence that suggests that this information was given. In the circumstances, the Committee finds that, whilst he had advised that the cost of the project had increased, there is sufficient evidence upon which it could find that that the Respondent failed to advise his client adequately to an increase in construction costs.
21. The Committee then went on to consider whether there was sufficient evidence that the Respondent had sought his client’s agreement to an increase in the construction costs. Whilst the Respondent in his email of 16 March 2015 stated that he considered that the cost of the project would now be £160,000, the Committee has not had sight of any evidence that he specifically sought his client’s agreement to proceeding at that higher cost. In the circumstances, a Committee, properly directed could find that there was sufficient evidence before it upon which it could find the facts of this allegation proved.
22. In the circumstances, the Committee finds that there is a case to answer in respect of both elements of allegation 1.3.1.
23. Allegation 1.4.1
Mr Bradly submitted that there was no evidence to support this allegation. He stated that for it to have any prospect of being found proved, there must be some evidence that a complaint had been made. He submitted that the evidence showed that no complaint had been made until the client wrote to the Board in June 2016.
24. He also submitted that, in any event, there was no obligation on the Respondent to meet the complainant to resolve any issues. In the circumstances, Mr Bradly submitted that the allegation was not capable of proof.
25. Mr Goodwin conceded that there was no case to answer.
26. The Committee has born in mind Mr Goodwin’s concession, but also the correspondence before it, notably the Complainant’s letter to the Board dated 28 September 2016. In it, he states that, at the time he sought a meeting with the Respondent, it was only to “draft Tender and discuss cost before I terminated his services when there was no dispute”.
27. In the circumstances, the Committee finds that there is no evidence upon which it could find the facts of this allegation proved and therefore finds that there is no case to answer. This allegation is therefore dismissed.
28. In reaching its decisions on the remaining allegations, the Committee has carefully considered the evidence of the Complainant together with the documentary evidence presented to it in the Report of the Board’s Solicitor and the 326 pages of documents exhibited to it, together with the Respondent’s defence bundle of documents containing his statement and 348 pages of exhibits and some colour copies of ARB exhibits.
29. 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:
30. Allegation 1.1:
The Committee finds the facts proved by reason of the Respondent’s admission. The Committee has also had sight of the Respondent’s letter of appointment dated 2 May 2014 together with the RIBA Outline Plan of Work 2007 and Conditions of Appointment which formed the basis of the Respondent’s appointment. Those documents give no details of the Respondent’s complaint’s procedure. The Respondent accepts that no such information was given but, given that he was a sole practitioner, it would have been apparent that any complaint would therefore have to be made to him.
31. Standard 4.4 of the 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:
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).”
These written terms must be provided to the client prior to undertaking any professional architectural services.
32. In the circumstances, the Committee finds allegations 1.1.1 proved. By reason of the facts found proved, the Committee finds that the Respondent acted in breach of Standard 4.4 of the Code.
33. Allegation 1.1.2
The Committee finds the facts not proved for the following reasons:
34. The Respondent’s letter of appointment dated 2 May 2014, set out the provisions for the calculation of his fees. The document refers to various percentages of “anticipated construction cost” for the planning, design drawing, tendering and post tender work (up to stages D, F1, G and L), a term that had not been defined in his letter. However, the Conditions of Appointment document sent with the Respondent’s letter stated at clause 5.2 that “where a percentage fee applies and until the actual cost of the building work was known, the percentages were are applied to the current approved estimate of the cost of the building works or the contract sum”.
35. The Committee has regard to the fact that, prior to the letter of appointment being sent, there was an exchange of correspondence which included a request from the Complainant for clarification of the term “construction cost” to which the Respondent replied with his explanation.
36. It is also clear that, until such time as tenders are approved, the final costs of the project would not have been known and therefore costs would necessarily have to have been estimated at the earlier stages of the project.
37. In the circumstances, the Committee finds that the terms of engagement as set out in writing adequately specify the fee for the Respondent’s work. The Committee therefore finds this allegation not proved.
38. Allegation 1.1.3
The Committee has found that there was no case to answer in respect of this allegation.
39. Allegation 1.2
The Committee finds the facts proved for the following reasons:
40. It is not disputed that the Respondent restricted the Complainant’s right to make a claim against him to a period of one year and that he restricted quantum in respect of all claims to £80,000. These facts are clearly evidenced in the Respondent’s letter of appointment of 2 May 2014 and in the amended RIBA Conditions of Appointment document which he attached to his letter. However, the Respondent denies that the inclusion of those terms was inappropriate, indicative of a lack of integrity or was otherwise inconsistent with his professional obligations.
41. It is the Respondent’s case that the level his liability equates to the estimated construction costs of a project. The sum was set at £80,000, he states because at the initial stage, that was the anticipated cost of the project. However, it is accepted by the Respondent that the minimum cost of the project would have been £90,000. The contract was signed on that basis, but the Committee notes, that that sum was not increased when it became apparent that the anticipated cost of the project rose. The limitation of quantum therefore remained unchanged even though the anticipated cost of the project had risen to £160,000, or £190,000 including landscaping and work to the loft. There is no evidence before the Committee that, at any time after the initial agreement restricting quantum to £80,000, the Respondent advised or suggested that the level of his liability should be increased.
42. The Committee has also taken into account that the limitation of a one year limitation period is materially lower than the default period prescribed by the Limitation Act 1980, being six years.
43. It is the Respondent’s case that the Complainant, as a professional person himself, was able to assess his requirements, and that he was given opportunity to raise objection to, or question it. The documentation, the Respondent asserted, was nothing more than an “offer” and “starting point” for negotiations. It was, he submitted, a matter of a contractual agreement between the parties to agree terms which RIBA in its Notes to the Domestic Project Agreement anticipated. He stated that he had clearly set out his position under the heading “Limit of Architect’s Liability” section at the conclusion of his letter of 2 May 2014 and in clauses 7.1 and 7.2.1 of the Conditions of Appointment and that the Complainant had agreed to his terms having had the opportunity to “discuss, explain, review any terms you may have queries regarding”. Restricting his liability, he stated, enabled him to keep his costs competitive. However, there is no corroborating evidence before the Committee that the respondent informed the Complainant that this was the basis for him restricting his liability.
44. However, the Committee has taken into account the following:
• despite the Respondent stating that the limit of liability was correlated with the cost of the project, the limit of £80,000 was less than the minimum estimated cost of £90,000;
• the anticipated construction costs materially increased over time, yet the Respondent did not suggest increasing the level of cover available to the Complainant to reflect this;
• the limitation period the Respondent sought was 1 year as opposed to the 6 afforded by the Limitation Act;
• The Respondent had sought to limit his liability to £80,000 for all claims. However, exclusion of liability for personal injury or death is not permissible under the Unfair Contract Terms Act;
45. The Committee has noted the Respondent’s submissions regarding the acceptability of limiting liability as supported by the decision in James Moores v Yakeley Associates Ltd but notes that in that case, the reduction in liability did not extend to an amount less than the value of the anticipated construction as occurred here.
46. To seek to limit his liability both in time and quantum as alleged, was, in the Committee’s view, designed to benefit the Respondent to the Complainant’s potential detriment. To do so, the Committee finds, was inappropriate. The Committee therefore finds the facts of this sub particular proved.
47. Allegation 1.2.2
The Committee finds the facts proved for the following reasons:
48. It is the Respondent’s case that the relevant terms were included in the contractual documentation and were brought to the Complainant’s attention in his quotation dated 12 February 2014 and other documentation. He stated that the Complainant was invited to review the proposed terms. He stated that the Complainant was himself a Finance Director and professional person and was capable of understanding and agreeing to the proposed terms. He stated that he had not advised the Complainant beyond what was contained in the documentation because, even though the Respondent is a non-practising barrister, he did not think it was appropriate to give legal advice.
49. However, as identified above, the proposed costs of the project increased without there being any proposed increase in the Respondent’s liability for loss, yet this was not discussed with the Complainant. In any event, the Committee has considered the Domestic Project Agreement 2010 Notes document produced by the Respondent as part of his bundle, where it states that “the contractual limitation period and the limitation of liability in amount (clauses 7.1 and 7.2)….may need careful explanation in the negotiations”. There is no evidence before the Committee of this having taken place.
50. The Committee does not consider that this obligation is fulfilled by the Respondent merely stating in his letter of 2 May 2014 that he would be “happy to discuss, explain, review any terms you may have regarding”. That letter also fails to identify that the proposed terms differ from the standard wording contained in RIBA’s Standard Conditions of Appointment for an Architect for a Domestic Project 2010.
51. In the circumstances, the Committee finds that the Respondent failed to bring to the Complainant’s attention and hence adequately advise of the fact of his proposed limitation on liability, which is a discrete issue from the giving of legal advice.
52. The Committee therefore finds the facts of this sub particular proved.
53. Allegation 1.2.3
The Committee finds the facts proved for the following reasons:
54. It is not disputed that the Respondent referred in his letter of appointment to “the Standard RIBA Conditions of Appointment for an Architect for a Domestic Project 2010” and had amended clauses 7.1 and 7.2.1. However, the Respondent states that the document should be considered in conjunction with his correspondence highlighting the limit on liability. He further states that RIBA allows for negotiation as to the terms of the standard agreement in relation to limitations on liability.
55. It is the Board’s case that, by amending the terms, yet by referring to “our agreement to that standard conditions” in his letter of 2 May 2014, the Respondent’s statements were inaccurate and misleading. The Committee has had particular regard to the contents of a blank standard Conditions of Appointment for an Architect for a Domestic Project 2010 adduced by the Respondent in his bundle of documents. Paragraph 7 of that unamended document limits an Architect’s liability to a six year period and states at paragraph 7.2.1 which states “the Architect’s liability for loss or damage shall not exceed the amount of the Architect’s professional indemnity insurance available for the project as specified in the letter of appointment providing the Architect has notified the insurers of the relevant claim or claims as required by the terms of such insurance”.
56. The Respondent’s letter of 2 May 2014 states: “The agreement between us consists of this letter which has a simple agreement at the end for you to sign and the standard RIBA Conditions of Appointment for an Architect for a Domestic Project 2010…..Our agreement is to these standard conditions, agreeing any amendments in writing”. However, the Committee considers that the respondent has sought to significantly reduce his liability both in terms of time and quantum from that offered by the standard document without specifically bringing the changes from the standard document to the complainant’s attention and securing his informed consent. The committee has specifically borne in mind particular the notes to the Conditions Of Appointment document which state that “Amendments to the Conditions, if needed, are made by hand on the face of the document or in a separate appendix”. That did not occur in this case.
57. The Committee therefore finds that the representations made were inaccurate and misleading and therefore finds the facts of this sub particular proved.
58. The Committee having found the facts of sub particulars 1.2.1, 1.2.2 and 1.2.3 proved, went on to consider whether the Respondent, by acting as found proved, failed to act with integrity and/or failed to avoid any actions which were inconsistent with his professional obligations.
59. Standards 1.1 and 1.2 of the Code state:
“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”.
60. By acting as found proved, the Respondent failed to avoid any actions which were inconsistent with his professional obligations in breach of standard 1.
61. 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 code;
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”.
62. 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.
63. The Committee has borne in mind the submission of Mr Bradly that, in considering whether the Respondent acted without integrity, it should take into account that the Respondent was of good character. Whilst recognising this, however, the evidence before the Committee is such that it considers that the issues surrounding the restriction on the Respondent’s liability benefit him alone to the client’s potential detriment. By failing to adequately bring the limitation to his client’s attention and inform him of the potential ramifications (on which the Complainant would have been at liberty to seek his own independent advice), the Committee finds that the Respondent failed to act with integrity.
64. In conclusion, the Committee finds that, in respect of the entirety of allegation 1.2, the Respondent failed to act with integrity and failed to avoid actions which were inconsistent with his professional obligations. The Committee therefore finds that the Respondent acted in breach of standards 1.1 and 1.2 of the Code.
65. Allegation 1.3
The Committee finds the facts not proved for the following reasons:
66. On 4 August 2014, the Respondent wrote to the Complainant attaching his invoice for up to the conclusion of the planning stage D the invoice sum was stated to be “based on a construction cost of £90k….I think £90k is realistic”. On 4 February 2015, the Respondent emailed the Complainant stating “We are looking at the upper end of your budget [£120,000] as you have the loft work and landscape work to add also”. However, on 16 March 2015, the Respondent wrote again to the Complainant stating: “On the costs point of view I think the extension you can get for £160k I am not sure it will extend to the loft and few external bits of work also, But we will not know until the tender returns are received.”
67. The following day, the Complainant responded by email stating: “In response to your ball park estimate that the cost for the extension would be around £160k, this is much morte (sic) than we anticipated as we were looking for an upper limit of £120k plus VAT for all the work. Anyway, as you say, let’s see what the tender produces.”
68. In the circumstances, the Committee considers that the Respondent had advised the Complainant, however briefly, about the increase in anticipated costs, even though this might have exceeded the Complainant’s initial budget of £90-120,000. However, the Committee is satisfied that the correspondence amounts to the Respondent having given adequate, but no more than adequate, advice as to an increase in construction costs. The Committee therefore finds this element of the sub charge not proved.
69. The Committee then considered whether the Respondent had failed to seek his client’s agreement to an increase in construction costs. The Committee has noted the contents of the Respondent’s email of 16 March 2015. Whilst it does not expressly ask the Complainant for consent, the essence of that email is to advise the Complainant of an increase in anticipated costs to £160,000, stating that final costs will not be known until the tender returns are received, inviting a response. The Complainant responded the next day stating “let’s see what the tender produces”, thereby agreeing to the Respondent’s proposal as to how to proceed in the light of a higher anticipated construction cost.
70. In the circumstances, the Committee finds that the Respondent did adequately advise his client and seek his client’s agreement as alleged. As such, the Committee has not gone on to consider the head of the charge and finds the facts not proven.
71. Allegation 1.3.2
The Committee finds the facts not proved for the following reasons:
72. It is accepted by the Respondent that he submitted the invoice in question. However he denies that it was done without the Complainant’s agreement.
73. Having invoiced the Complainant in August 2014 based on a proposed construction cost of £90,000, the Respondent subsequently, on 31 May 2015 tendered an invoice for a total sum of £5,144.16 in respect of works up to the conclusion of stage G. The invoice particularised the basis of the calculation of fees on an “extension £160k, loft £20k, landscaping, decorating £10k” giving a total construction cost of £190,000.
74. On the 6 June, the Complainant queried the basis for the calculation, noting that the Respondent’s invoicing up till that point had been based on a construction cost of £90,000. The Complainant stated that “your own estimates to me were £90,000-£120,000 – which is of course why your staged invoices had been based on £90,000. When you asked me what the upper limit of my budget was, I said it was your range and therefore an upper number of £120,000.
75. The Respondent stated that his “invoice was based on the construction cost of the project ‘designed’ not that finally built.”
76. On 29 June 2015, the Complainant wrote again to the Respondent stating: ”We had a clear budget range of £90,000-£120,000 in total. This was clearly discussed and evidenced when you initially engaged as our architect…..Your invoicing at all prior stages was based on the cost of £90,000 – at no stage did you suggest that this should be increased. Your email of 16 March 2015, which you appear to seek to rely on for the charges in your disputed invoice, is far from an update on the budget constraints, or suggestion that the new budget should be £160,000. In fact you go as far as to say “we will not know [the budget] until the tender returns are received…..
Obviously I do not agree that your recent invoice should be based on anything other than the budget cost of £90,000 that previous invoices have been calculated on.
I would remind you that at no stage has there been an approved cost. Your email of 16 March does not ask me in anyway, and nor did I, to approve the cost you suggest as a ball park figure of £160,000.
At this juncture we neither have an actual cost of the building work nor an approved plan. In several discussions you were told we could not go above the range that we agreed with you. Your response was to wait and see what the tenders would produce.”
77. There is no evidence before the Committee upon which it can conclude that the Complainant explicitly agreed the increased costs. In the circumstances, the Committee finds the factual sub particulars of allegation 1.3.2 proved. However, the Committee has gone on to consider the head of the charge, noting its reasons for its findings in respect of allegation 1.3.1. The Complainant had clearly indicated that he would wait for the tenders to be returned before considering the question of construction costs. At that point, the Respondent had submitted a further invoice based on his fee scale as set out in his letter of appointment of 2 May 2014. This was therefore in accordance with the contractual arrangement between him and the Complainant. The Committee does not find that to submit an invoice in those circumstances amounts to a failure to carry out his work faithfully, conscientiously and with due regard to relevant technical and professional standards.
78. The Committee therefore finds this allegation not proved.
79. Allegation 1.4
The Committee has found that there is no case to answer in respect of this allegation.
80. Allegation 1.4.2
The Committee finds the facts proved for the following reasons:
81. Following the submission of the invoice in May 2015 the Complainant continued to dispute the amount sought. He raised his concerns in a letter of 6 June 2015. On 20 June 2015, the Respondent wrote to the Complainant regarding his concerns, stating that he had reviewed the matter with his QA manager.
82. On 17 July 2015, in challenging the amount owed, the Complainant wrote to the Respondent stating “If you however persist in trying to extort additional money from me which is clearly non contractual, you will leave me with no option other than to commence a formal complaint.”
83. On 2 August, the Respondent wrote to the Complainant stating: “….I will keep a record of my time responding to any complaint, and may seek payment for this. Please note that I charge £150 an hour plus vat for non-architectural work.”
84. The Respondent states that, when he wrote his letter of 2 August, no formal complaint had been made and that he believed his client was acting in bad faith. He stated that he was reserving his position regarding recovery of his fees in the event that he was legally entitled to do so because the Complainant was acting in bad faith. The Committee finds that irrespective of whether a formal complaint had actually been lodged, a dispute over fees had clearly arisen and concerns raised. In the light of the correspondence above, the Committee does not accept the Respondent’s evidence on this point as credible. The documentation clearly evidences that the Complainant had raised concerns.
85. Standard 10 of the Code states:
“Deal with disputes or complaints appropriately
10.1 You are expected to have a written procedure for prompt and courteous handling of complaints which will be in accordance with the Code and provide this to clients. This should include the name of the architect who will respond to complaints.
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”.
86. The Committee rejects the Respondent’s evidence that his actions were, in the circumstances, justified. Registered Architects are obliged under the Code to address disputes and complainants appropriately. To threaten to charge for complying with his obligations is, in the Committee’s view, inappropriate. As such, the Committee finds the facts of this sub particular proved and that the Respondent acted in breach of standard 10 of the Code.
Finding on Unacceptable Professional Conduct:
87. Having found allegations 1.1, 1.2.1, 1.2.2, 1.2.3 and 1.4.2 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.
88. 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.
89. 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 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”.
90. The Committee has taken into account both Mr Goodwin’s, Mr Bradly’s and the Respondent’s submissions including Mr Bradly’s submission that any failings by the Respondent are not so serious that they amount to UPC.
91. 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. Setting out compliant terms of engagement in writing prior to undertaking any professional work, is essential for both the architect and his/her client to understand their respective rights and obligations, and ensures that both parties are aware of their respective contractual obligations. Failure to comply with this obligation, leads to misunderstandings and confusion, and the potential to lead to the breakdown of the architect / client relationship.
92. Those matters found proved in each of the sub particulars of allegation 1.2 demonstrate a lack of integrity and breach of standard 1 of the Code and had the potential to seriously disadvantage his client in the event of an insurance claim arising. The facts of allegation 1.4.2 reflects conduct intended to intimidate the complainant to withdraw his 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.
93. The Committee therefore finds that the Respondent’s conduct as found proved in respect of allegations 1.1.1, 1.2 in its entirety and 1.4.2 does amount to unacceptable professional conduct.
94. Mr Bradly then addressed the Committee in mitigation and submitted a bundle of documents including a reflective statement of the Respondent, a bundle of testimonials and course certificates for CPD training undertaken.
95. 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.
96. Having taken into account the Respondent’s submissions, the Committee has identified the following mitigating factors:
• that the Respondent has no adverse regulatory history in a career spanning in excess of 22 years;
• he has engaged in the regulatory process and has admitted one of the factual allegations he faced;
• the Respondent has demonstrated a significant level of insight into his failings. He has apologised for his actions, reflected on his practice and has taken practical steps to address his failings to ensure that the matters that have brought him before this committee will not be repeated: he has amended the fee provisions of his agreements to ensure clarity; takes greater care in ensuring that clients understand the terms of their agreement; ensures that clients understand the potential for costs increasing throughout a project and he now gives greater clarity regarding the making of complaints;
• he has provided a number of testimonials attesting to his professionalism.
97. The Committee has identified the following aggravating factors:
• the Respondent’s failings were serious in that his lack of integrity, had the potential to benefit himself and to materially disadvantage the Complainant.
98. Having taken all this factors into account, the Committee considers the risk of repetition of his unacceptable professional conduct, should he continue in practice, to be low. In the circumstances, the Committee does not consider that a sanction is necessary on public protection grounds. However, given the Committee’s findings, including that of a lack of integrity, the Committee considers that a sanction is required to protect the wider public interest as identified above.
99. The Committee notes that the matters found proved are serious to the extent that Mr Handley’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.
100. The Committee first considered whether to impose a reprimand. Whilst the Committee recognises that a number of factors are present that would ordinarily result in such a sanction being imposed, given the serious nature of the UPC found in this case, the Committee considered that the Respondent’s failings were too serious for such a sanction.
101. The Committee then considered whether to impose a penalty order and concluded that such a sanction was the appropriate and proportionate sanction to impose. Given the identified aggravating factor, the Committee concluded that a penalty order adequately reflects the seriousness of the UPC found proved and would adequately protect the public interest. The penalty order will be in the sum of £1000.
102. The Committee considered whether to impose a suspension order, but given the suitability of a penalty order, the Committee concluded that such a sanction would be unduly punitive.
103. The Committee therefore imposes a £1000 penalty order. That sum must be paid within 28 days. Failure to pay that sum within that time frame may lead to the order being replaced with a suspension or erasure order.
104. That concludes this determination.