Mr Simpson and Mr Crichton
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr William Crichton (051977D)
Mr Colin Simpson (056055C)
Held on 13 to 16 June and 18 to 23 August 2016
Novotel Glasgow Centre
181 Pitt Street
8 Weymouth Street
Mr Julian Weinberg (Chair)
Mr Roger Wilson (PCC Architect Member)
Ms Linda Read (PCC Lay Member)
Ms Melinka Berridge (Clerk to the PCC – 13 to 16 June)
Mr Stephen Battersby (Clerk to the PCC – 18 to 22 August)
1. The Board is represented by Mr Iain Miller. Mr Simpson and Mr Crichton have attended this hearing and are represented by Andrew Bowen QC, briefed by DAC Beachcroft Solicitors. The respondents face a charge of unacceptable professional conduct (“UPC”) based on six allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) in that they:
1.1. Failed to keep drawings updated and did not issue drawings to the client for approval;
1.2. Failed to control the costs of the project;
1.3. Failed to ensure the building works were carried out to an acceptable standard and in accordance with the contract;
1.4. Failed to instruct the contractor to rectify the defects and damage;
1.5. Did not make sufficient site visits or issue sufficient notes of site visits;
1.6. Failed to obtain the approval of the client or alternatively the structural engineer to altering the design of the bedroom and porch.
2. It is further alleged against Mr Crichton alone that he carried out inadequate defects inspections and issued a practical completion certificate despite significant outstanding defects, the works not complying with building regulations, approval not being gained for a warrant amendment and an insufficient sum being retained for remedial work.
3. It is alleged that the respondents acted in breach of Standard 6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).
4. At the start of the hearing, Mr Bowen made three preliminary applications, namely:
· That there was no case to answer and the charges should be dismissed;
· That the respondents could not receive a fair hearing as the allegations were insufficiently particularised and
· That following a procedural irregularity, the respondents had been deprived of the opportunity of cross examining the complainant and his wife and as a result, could not receive a fair hearing.
5. In considering these applications, which were opposed by the Board, the Committee has had regard to the skeleton arguments served in advance of the hearing by both parties and the submissions made by Mr Bowen and Mr Miller. The Committee has also heard and accepted the advice of the clerk.
6. Dealing with each of these applications in turn, the Committee makes the following determinations:
That there is no case to answer:
7. Mr Bowen submitted that that the allegations the respondents faced related to matters of competence, rather than unacceptable professional conduct (“UPC”). He submitted that UPC could not be found because the factual allegations, if found proved, could not attract the necessary level of moral blameworthiness that a finding of UPC would require. As such, no such finding could be made.
8. Mr Miller submitted that this application was premature. The Committee could only consider such an application in the usual way, at the conclusion of the Board’s case, once it had heard the evidence. In any event, he submitted, whilst accepting that, in some cases, there was a crossover between UPC and serious professional incompetence, he submitted that the allegations raised matters of conduct in breach of Standard 6 of the Code, which could reasonable be categorised as UPC.
9. The Committee has had regard to Rule 16c of the Professional Conduct Committee Rules. Having done so, it rejects Mr Bowen’s application. The Rules are unequivocal in that “the Respondent shall be entitled to submit that he or she has no case to answer”, but that this entitlement arises “After the evidence against the Respondent has been called”. It agrees with Mr Miller that to make such an application at this stage is premature. It cannot determine that there is no case to answer prior to any evidence being presented to it. The Committee therefore rejects this application. The Committee would emphasise that this decision does not of course preclude a similar application being made at the conclusion of the Board’s case.
That the allegations are insufficiently particularised:
10. Mr Bowen submitted that the respondents could not receive a fair hearing because the allegations had not been sufficiently particularised. He referred the Committee to the fact that the Clerk had issued a direction to the Board’s Solicitor to further particularise the allegations faced by each respondent, but his response did little more than to state the time scale relevant to each respondent. The allegations, he submitted, had not, however, been clarified and did not sufficiently distinguish between the respondents’ respective roles.
11. Mr Miller submitted that the allegations had been drafted in the light of the complaint made. He accepted that this was not a joint allegation against both respondents, but that each allegation separately related to each respondent and that it was a matter for him to prove that the facts were made out against them individually. He submitted that it was perfectly proper to bring a charge against more than one respondent.
12. The Committee has carefully considered the contents of the Report of the Board’s Solicitor. The Committee considers that the allegations are not joint, but fall to be proved to the relevant standard by the Board, individually against each respondent. If the Board is unable to do this in respect of any one allegation against either respondent, that individual allegation will fall. The Committee does not therefore consider that in the circumstances, that a direction for further particulars was required.
13. In the circumstances, the Committee rejects the application.
14. Mr Bowen submitted that, contrary to Rule 18a of the Investigation Rules, the Board’s Solicitor had not stated which witnesses it intended to call to give evidence in person, and had not supplied their details. In the absence of such a statement, the respondents had been deprived of the opportunity to test the witnesses by way of cross examination. If the witnesses were not attending the hearing, references to their statements in the Report of the Board’s Solicitor should be redacted. As a result, the respondents could not receive a fair hearing.
15. Mr Miller submitted that he had disclosed which witnesses upon which the Board would be relying. That was disclosed at paragraph 6 of the Report. Furthermore, the details of the witnesses on whom he would be relying were disclosed in their respective statements annexed to the Report. He stated that the respondents’ solicitors had repeatedly been told in correspondence that the Board would be relying on their evidence. In any event, the witnesses were attending the hearing and that they would give live evidence.
16. The Committee has carefully considered the correspondence referred to by Mr Miller. It is correct that the Board has repeatedly stated that it would be relying on the evidence of the complainant and his wife. However, neither the correspondence, nor the Report, explicitly stated that they would be called to give live evidence, although the Committee considers that this could reasonably be inferred from the correspondence.
17. However, the Committee has had regard to Rules 12b and 13a(i) of the Professional Conduct Committee Rules. The Committee has also borne in mind that there is no prejudice to the respondents as the witnesses have attended the hearing to give live evidence. They can therefore be cross-examined. In the circumstances, the Committee concludes that there is no unfairness to the respondents and rejects this application. In doing so, the Committee confirmed that it would give Mr Bowen additional time, should he require it, to prepare any cross examination.
18. This case arises out of a complaint made by Mr M (“the complainant”) in respect of the professional services carried out by the respondents who, at the material time, were trading under the name, Crichton and Simpson Architects.
19. The allegations are that towards the end of 2012, the complainant instructed Crichton and Simpson Architects to act on the refurbishment and redevelopment of the complainant’s parents’ former property. The respondents were subsequently instructed as Contract Administrators.
20. Having sent out tenders, a number of quotes were received but these far exceeded the complainant’s budget of £100,000 for the work. Mr Simpson then recommended that Mr S of DSJ undertake the work. Mr S stated that the cost of the work would be £85,600 inclusive of VAT, a sum substantially less than the lowest tender received. This fee was agreed directly with the complainant.
21. The relationship between the complainant and DSJ deteriorated over time because of the poor quality of the work carried out and also because it is alleged that the work was not carried out in accordance with the plans and in compliance with building regulations. In December 2013, the complainant and his wife raised their concerns with Mr Simpson and following that, a meeting took place with both respondents, after which, both respondents worked on the project. It is alleged that the respondents should have identified defects with the contractor and resolved them. It is the Board’s case that Mr Simpson’s responsibility arises from his involvement throughout the entirety of the project. It is alleged that Mr Crichton’s responsibility arises from his involvement with the project from 13 December 2013, being the date of the meeting referred to above.
22. All the allegations are denied. It therefore follows that UPC is not admitted.
23. In reaching its decisions, the Committee has carefully considered the live evidence of the complainant, his wife and the respondents together with the documentary evidence presented to it in the Report of the Board’s Solicitor and the 526 pages of documents exhibited to it. It has also considered two defence bundles containing 228 and 27 pages respectively.
24. 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. It has also borne in mind in reaching its decisions on the facts that the Board’s case against Mr Crichton only relates to his conduct after 13 December 2013 when he first became involved in the project. The allegations against Mr Simpson relate to the duration of his firm’s involvement in the project.
Findings of Fact
25. The Committee makes the following finding of facts:
26. The Committee finds the facts not proved for the following reasons:
27. The Committee has had regard to an email from the complainant to Mr Simpson dated 22 October 2013 in which he refers to the fact that he noticed that the contractor was using outdated drawing information, and suggesting that he had another set of drawings, in particular regarding the dressing room and ensuite details.
28. However, the Committee has also taken into account that the facts of this allegation allege a failing. To be found proved, the Board must first establish an obligation to keep drawings updated and identify which drawings the respondents failed to update. The Board has not established these elements to the required standard of proof. The Committee has also had regard to the fact that Mr Simpson did issue a number of Architects Instructions to the contractor which would have identified changes required to the project.
29. Similarly, the Board has not identified such drawings as it alleges should have been provided to the complainant for approval, nor has it adduced sufficient evidence of an obligation on Mr Simpson to provide these. The Committee acknowledges that “as built drawings” could have been provided, but these would, as their name suggests, merely reflect that which had taken place, and would not, by their nature, require approval from the client.
30. So far as changes to the roof, porch and bedroom window designs are concerned, for reasons that are expanded upon later in this decision, such works were undertaken by the contractor without Mr Simpson’s prior knowledge. In the circumstances, no criticism can be made of Mr Simpson in this regard for failing to seek the client’s approval of drawings that would reflect these works that were outside the scope of the original design.
31. The Committee finds the facts not proved for the same reasons as stated in relation to Mr Simpson.
32. The Committee also notes that, after Mr Crichton’s involvement in the project, further drawings were required to submit an amended Building Warrant application. The Board has not produced any evidence that this was not done. The Committee has taken into account Mr Simpson’s unchallenged evidence, which the Committee accepts, that he prepared updated drawings for submission with that application.
33. The Committee finds the facts proved for the following reasons:
34. It is accepted by the respondent that his firm was employed as Architects and Contract Administrators for this project. Mr Simpson’s correspondence to the complainant in his letter dated 22 December 2013 confirmed that this was the case. It was also conceded by Mr Simpson in his evidence and as such, Mr Simpson was responsible for controlling the costs of the project.
35. Many of the problems arose because the respondents did not have a breakdown as to how the contract sum was calculated. Even though this sum was agreed directly between the contractor and the complainant, Mr Simpson was aware that this would be needed for an assessment to be made of the valuation of works as they progressed. This is evidenced by his request for a breakdown of the contract figure made to the contractor in his letter to them dated 11 September 2013. In his letter of 22 December 2013 to the complainant, he acknowledged that “the financial control could be based on the document agreeing the contract sum. To date we still do not have this”. In spite of this, Mr Simpson nevertheless still issued Interim Certificates in November and December 2013, certifying the value of completed works when he had no basis for validating the amount sought. In evidence, he accepted that the Interim Certificates were based on the amounts invoiced by, and paid to the contractor, rather than on proper valuations. He further conceded that he was unable to validate the accuracy of the value of the work undertaken or the reasonableness of the contractor’s costs in the absence of a breakdown as to how the contract sum was calculated. In his defence document at paragraph 39, he accepts that he could not “independently assess the accuracy or valuation of the work by the Contractor”. As Contract Administrator, it was incumbent on him to be able to do so.
36. The effect of Mr Simpson’s actions were that, as expanded upon later in this decision, an insufficient sum had been retained for remedial works.
37. In the circumstances, the Committee finds that Mr Simpson failed to control the costs of the project, and that by doing so, failed to carry out his professional work faithfully and consciously and with due regard to the relevant technical and professional standards in breach of Standard 6 of the Code.
38. The Committee finds the facts proved for the following reasons:
39. For the reasons set out above, the Committee is satisfied that the respondent’s role included that of Contract Administrator. Mr Crichton was “parachuted in” in mid December 2013 to try and move to project forward given the breakdown in the relationship between the complainant and the contractor. He took on the Contract Administrator’s role. By the time he issued the Practical Completion Certificate on 24 January 2014, he had also not been provided with a breakdown of the contractor’s costs. Even though he had not attended a meeting between the complainant and the contractor on 19 December, during which the contractor’s costs and any retention were discussed, the effect of signing the Practical Completion Certificate was to enable the release of half of the retention monies of £1950. As stated later in this decision, at the time of certifying Practical Completion, there were a number of substantive outstanding works to be attended to, that went beyond superficial snagging. The unchallenged report of D + S confirmed that the cost of remedial works would be “far in excess of the…..retention figure noted”, a view also taken by the complainant.
40. In the circumstances, the Committee finds that Mr Crichton failed to control the costs of the project, and that by doing so, failed to carry out his professional work faithfully and consciously and with due regard to the relevant technical and professional standards in breach of Standard 6 of the Code.
41. The Committee finds the facts proved for the following reasons:
42. The complainant gave evidence that, and it is accepted by Mr Simpson, there were a number of aspects of the project that were constructed, other than in accordance with the contract specification. It is not necessary to fully particularise these, but there were a number of serious shortcomings in that they include (but are not limited to):
· The underfloor heating not being installed as required (raised by the complainant to Mr Simpson in his email dated 28 November 2013);
· The wrong type of radiators being installed (raised by the complainant to Mr Simpson in his email of 14 December 2013);
· The extension roof being built to a different specification (as recognised in Mr Simpson’s email of 22 December 2013);
· The design of the bedroom windows being changed;
· The supports for the porch being constructed from timber as opposed to steel;
· A change to the construction of external cladding.
43. In addition, the Committee has had sight of the unchallenged report from D + S dated September 2014. At section 6 of that report, they identify an extensive list of defects and non-conformity issues relating to Building Regulations. In essence, the shortcomings relate to non-compliance in relation to fire doors, the staircase configuration to the second floor, rooflights in the second floor that needed to be top hung to allow a means of escape in the event of fire, and lead flashings around the chimney stack. As a result, their report concluded that in their opinion, a Practical Completion Certificate should not have been issued.
44. Mr Simpson stated that he had had no fewer than 33 site inspections and meetings, lasting between 30 minutes and 1 hour. He produced a schedule of such meetings which the Committee has no reason to doubt, and which was not challenged by the Board.
45. However, notwithstanding such inspections, the Committee is satisfied to the required standard, given the above, that the building works were neither carried out to an acceptable standard, nor in accordance with the contract. As Contract Administrator, Mr Simpson was responsible for ensuring that that was done, but he failed to do so. In the circumstances, the Committee finds that Mr Simpson failed to act as alleged, and that by doing so, failed to carry out his professional work faithfully and consciously and with due regard to the relevant technical and professional standards in breach of Standard 6 of the Code.
46. The Committee finds the facts proved for the following reasons:
47. The Committee has taken into account the conclusions of D + S’s report regarding non-compliance with Building Regulations which issues were present at the time of Mr Crichton signing the Practical Completion Certificate.
48. In evidence, and in response to questions from Mr Miller, he accepted that he had not identified a number of issues of which the hinging of the rooflight or the lack of lead apron flashing are but two examples.
49. Additionally, for the reasons stated above in respect of its findings regarding Mr Simpson in respect of this allegation, the Committee is satisfied to the required standard, that the building works were neither carried out to an acceptable standard, nor in accordance with the contract. As Contract Administrator, Mr Crichton was responsible (from 13 December 2013) for ensuring that that was done, but he failed to do so. In the circumstances, the Committee finds that Mr Crichton failed to act as alleged, and that by doing so, failed to carry out his professional work faithfully and consciously and with due regard to the relevant technical and professional standards in breach of Standard 6 of the Code.
50. The Committee finds the facts proved for the following reasons:
51. Mr Simpson in his defence document stated that during the project, he had identified a number of issues of concern which he raised with the contractor. He also relies on the snagging list provided. The Committee has also had regard to a copy of the Amendment to Warrant which was emailed to the contractor by Mr Simpson on 6 February 2014 which reflected the change in specification of what was constructed. However, the Committee notes that there were a number of additional defects that required remedial work, for example, reconfiguring the staircase to the second floor, changing the external cladding, rehanging the rooflight. The report of D + S also identified damage that required remedial work. Having heard all the evidence, the Committee is satisfied that Mr Simpson failed to instruct the contractor to rectify those defects. It has heard no evidence that he did so instruct. He had only had site meetings until 19 December 2013 and there is no other evidence before the Committee that the issues above were raised by him with the contractor.
52. In the circumstances, the Committee finds that Mr Simpson failed to act as alleged, and that by doing so, failed to carry out his professional work faithfully and consciously and with due regard to the relevant technical and professional standards in breach of Standard 6 of the Code.
53. The Committee finds the facts proved for the following reasons:
54. Mr Crichton gave evidence that he had raised a number of defects with the contractor. He relied upon the snagging lists supplied. There is some uncertainty about the number of lists given to the contractor. However, this of less concern to the Committee given that Mr Crichton accepts, that having failed to identify a number of defects relating to breach of Building Regulations, (eg in relation to the rooflight, the lack of lead flashing and the staircase to the second floor), and damage as set out above, he could not, and therefore did not raise raised them with the contractor.
55. In the circumstances, the Committee finds that Mr Crichton failed to act as alleged, and that by doing so, failed to carry out his professional work faithfully and consciously and with due regard to the relevant technical and professional standards in breach of Standard 6 of the Code.
56. The Committee finds the facts proved for the following reasons:
57. Mr Simpson has produced a schedule of site meetings he attended between December 2012 and December 2013. The burden is on the Board to provide evidence that the number of such site visits was insufficient, and in what respect. It has not done so. Accordingly, the Committee finds this element of the particular not proved.
58. However, Mr Simpson accepted in evidence that he had not made notes of his site visits and that he should have done so. Given that the contractor was undertaking unauthorised variations to the construction, this would have been essential. The Committee therefore finds that, not having made sufficient notes of site visits, that he did not issues sufficient notes of site visits and that by doing so, he failed to carry out his professional work faithfully and consciously and with due regard to the relevant technical and professional standards in breach of Standard 6 of the Code.
59. The Committee finds the facts proved for the following reasons:
60. The burden is on the Board to provide evidence that the number of such site visits undertaken by Mr Crichton was insufficient and in what respect. It has not done so. Accordingly, the Committee finds this element of the particular not proved. In reaching its decision, the Committee is mindful that this allegation relates to the number of visits as opposed to the adequacy of inspections which is addressed in its findings in respect of allegation 2.
61. However, Mr Crichton accepted in evidence that he had not made notes of his site visits and that he should have done so. Given that the contractor was undertaking unauthorised variations to the construction, and because of the breakdown in the relationship between the complainant and the contractor that he was brought in to resolve, this would have taken on heightened significance. The Committee therefore finds that, not having made sufficient notes of site visits, that he did not issue sufficient notes of site visits and that by doing so, he failed to carry out his professional work faithfully and consciously and with due regard to the relevant technical and professional standards in breach of Standard 6 of the Code.
62. The Committee finds the facts not proved for the following reasons:
63. Having requested clarification of the basis of the allegation, Mr Miller on behalf of the Board confirmed that the case was being put on the basis of a failure to obtain ‘prior’ approval to the relevant design alterations.
64. There is no evidence before the Committee to suggest that Mr Simpson was aware, prior to the work being completed, that the designs of the bedroom or the porch were being altered. Had he been made so aware, Mr Simpson would undoubtedly have been under an obligation to seek approval of the complainant and the engineer to those changes. However, the Committee does not consider that Mr Simpson has failed in his obligation to seek approval in circumstances where he was not aware that these changes were to be made.
65. However, the Committee is mindful that both the complainant and the engineer were presented with a fait accompli so far as the design changes were concerned. That the client should have been placed in that position does little to enhance the reputation of the respondents. The fact that the structural engineer subsequently confirmed that the redesigned porch would nevertheless be structurally sound is fortuitous.
66. The Committee finds the facts not proved for the following reasons:
67. It is apparent from the complainant’s email to Mr Simpson of 2 December 2013 that the works in question had been completed by then.
68. As stated earlier, Mr Crichton’s involvement with the project only commenced on 13 December 2013, some time after the design changes had been made. As Mr Crichton had no responsibilities for the project at that time, the Committee finds that Mr Crichton did not fail to act as alleged.
Allegation 2 (against Mr Crichton alone):
69. The Committee finds the facts proved for the following reasons:
70. Mr Crichton issued the Practical Completion Certificate on 24 January 2014. He accepted in response to questions put to him by Mr Miller that he had carried out inadequate defects inspections. In addition, for the reasons set in in respect of allegations 1.3 and 1.4, the Committee finds that Mr Crichton completed the certificate when he had failed to make adequate defects inspections and while there were significant outstanding defects and that the works did not comply with Building Regulations. Furthermore, approval had not been gained for a Building Warrant amendment as this was only achieved on 28 March 2014. For the reasons set out in respect of allegation 1.2, an insufficient sum had been retained for remedial works.
71. The Committee therefore finds that, having found the facts proved, Mr Crichton failed to carry out his professional work faithfully and consciously and with due regard to the relevant technical and professional standards in breach of Standard 6 of the Code.
Unacceptable Professional Conduct
72. Having found allegations:
· 1.1 not proved against either respondent,
· 1.2 proved against both respondents,
· 1.3 proved against both respondents,
· 1.4 proved against both respondents,
· 1.5 proved against both respondents,
· 1.6 not proved against either respondent and
· 2 proved,
the Committee went on to consider whether the respondents’ conduct found proved amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person.
73. In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice of 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.
74. 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”.
75. Mr Bowen submitted that if any matters were found proved, they were only capable of amounting to a lack of competence. The respondents’ conduct could not, he submitted, amount to UPC because the matters alleged against the respondents, even if found proved, did not carry the necessary level of moral blameworthiness that a finding of UPC would require. He reminded the Committee that for a finding to be made, any failings should be serious failings, referring the Committee to the case of Vranicki v Architects Registration Board  EWHC 506 (Admin).
76. The Committee has borne in mind the comments made in the Vranicki decision that, whilst an architect cannot be held responsible for all of a contractor’s failings, “It is precisely because such difficulties are foreseeable that an architect who is engaged to supervise must take all reasonable steps to ensure that the project runs as smoothly as possible by advising clients on the appropriate contractual arrangements and monitoring the progress, identifying poor or defective workmanship and requiring it to be remedied and seeking that what should be done is done in time”.
77. By reason of the nature of the matters found proved, the Committee has concluded that both respondents failed in this regard. Even though initially recommended by Mr Simpson, for the complainant to appoint a contractor who agreed to undertake the project for approximately half the price of the other tendering companies, who said that he did not enter into written contracts and who refused to entertain any claim for liquidated damages, is extraordinary. For the respondents, all the warning signs were there that this was a project that would require very close monitoring. However, the respondents, as Contract Administrators, failed in their obligations. Both respondents were aware of the lack of costings from the contractor and of the problems with his workmanship, yet both respondents failed to appropriately monitor costs or ensure that the building work was carried out as required. The Committee accepts Mr Morrissey’s evidence that such failings are serious. By way of example, their failures in respect of allegation 1.3 in relation to the lack of fire doors or an impeded escape route as a result of an incorrectly hinged rooflight, posed a serious risk to the health and safety of occupants in the event of a fire. In the Committee’s judgment, their failings are serious and carry a level of moral opprobrium such that a finding of UPC can properly be made against both respondents.
78. The Committee therefore finds that Mr Simpson’s conduct as found proved in respect of allegations 1.2, 1.3, 1.4, 1.5 amounts, both individually and collectively, to unacceptable professional conduct. The Committee also finds that Mr Crichton’s conduct as found proved in respect of allegations 1.2, 1.3, 1.4, 1.5 and 2, amounts, both individually and collectively, to unacceptable professional conduct.
Mitigation and Sanction
79. Mr Bowen then addressed the Committee in mitigation. The Committee 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 respondents’ 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.
80. Having taken into account the respondents’ submissions, the Committee has identified the following mitigating factors:
· neither respondent has any adverse regulatory history in their respective 30 and 27 year careers, and that the problems encountered on this project were an isolated incident in lengthy careers;
· they have both fully engaged in the regulatory process;
· they have both expressed regret at the difficulties that the complainant suffered. Mr Bowen submitted that the respondents had demonstrated insight, but the Committee has not heard how the respondents consider their conduct reflects on the profession generally;
· both respondents have provided a number of positive testimonials attesting to their work, character and professionalism;
· they have not personally gained from their failings. Mr Bowen stated that the respondents had not made any financial gain from their role as Contract Administrators. Furthermore, in resolving their civil dispute with the complainant, they had each paid a £10,000 insurance excess. The Committee notes that the complainant stated that his loss extended to a six figure sum. Whilst the details of any settlement between the respondents and the complainant are not known, the amount of the excess paid on account of any settlement, indicates that the complainant suffered substantial financial loss as well as significant personal inconvenience as a result of the respondents’ failings;
· they have in mitigation, demonstrated some insight into their failings, recognising that they need to change their working practices. They have stated that they have taken steps to remedy their failings, for example, in that minutes of site meetings are now taken and circulated to relevant parties, and that they now ensure that they have all relevant contract documentation available to them. However, the Committee has not heard what mechanisms the respondents have now put in place to ensure that the difficulties of contract administration encountered with the contractor in this case, would not be repeated if faced with similar circumstances in the future.
81. Taking into account all the circumstances, the Committee considers the risk of repetition of their unacceptable professional conduct to be moderate.
82. The Committee has identified the following aggravating factors:
· their failings caused substantial inconvenience and financial loss to the complainant;
· although they are experienced architects, they failed in their obligations to their client when they were aware of the problems that existed.
83. Given the aggravating circumstances set out above and those matters identified in the Committee’s findings on UPC, the Committee does not accept that, even though this is an isolated incident in lengthy careers, the level of UPC found proved is at the lower end of the scale. Furthermore, the Committee does not consider Mr Crichton’s culpability to be any less than that of Mr Simpson. Whilst the Committee accepts that his involvement was limited in time, having been aware of the difficulties with this project, Mr Crichton nevertheless, and amongst other things, issued a Practical Completion Certificate when he had failed to identify a number of substantive defects and moreover, failed to ensure that sufficient funds had been retained to cover these, thereby putting his client at significant financial risk.
84. The matters found proved are serious, wide ranging and had a substantial impact on their client. Their conduct diminishes both their reputation, and that of the profession generally. The Committee therefore concluded that the respondents’ failings are sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
85. The Committee first considered whether to impose a reprimand against either respondent. Taking all the circumstances into account, the Committee considered that such a sanction was inappropriate given the seriousness of their respective failings and the impact of their UPC on the client and on the reputation of the profession.
86. The Committee then considered whether to impose a penalty order but discounted this as an inappropriate sanction for the same reasons.
87. The Committee then considered whether to impose a suspension order. The Committee does not consider their failings fundamentally incompatible with remaining registered Architects, and that the respondents’ conduct is capable of being remedied. However, as previously stated, these were serious failings, such that the Committee considers that this sanction is required to protect the public and the reputation of the profession and to uphold professional standards. The Committee therefore imposes a suspension order on both respondents for a period of 12 months.
88. The Committee gave consideration to an erasure order, but decided against such a sanction given the suitability of a suspension order. An erasure order, the Committee considered, would be unduly punitive.
89. That concludes this determination.