Mr Stephen Harty
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Stephen Harty (062010F)
15 – 18 April 2013
3 September 2013 (Penalty)
Architects Registration Board
8 Weymouth Street
Mr Julian Weinberg (Chair)
Ms Linda Read (PCC Lay Member)
Mr Donal Hutchinson (PCC Architect Member)
Mr Stephen Battersby (Clerk to the PCC)
Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of the Board
Mr Daniel Lazurus instructed by Berrymans Lace Mawer appeared on behalf of Mr Harty
Stephen Harty was re-admitted to the Register of Architects by a decision of the Board dated 11 February 2016.
1. In this case, the Board was represented by Mr Jonathan Goodwin. Mr Harty attended the hearing and was represented by Mr Robert Lazarus. Mr Harty faced one charge of unacceptable professional conduct based on two allegations as set out in the charges relating to conduct allegedly in breach of standards 1 and 6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).
2. No preliminary applications were made.
3. The background to this matter was that at the material time, Mr Harty was a registered architect. By a letter dated 27 September 2011, Daniel Spibey, (“the complainant”) a Director of Lilimont (UK) Ltd (“Lilimont”) made a complaint to the Board in relation to Mr Harty’s conduct where his practice had carried out design services for Lilimont in connection with a proposed development called “Krusevica” in Montenegro. A contract was entered into in December 2009 whereby his practice was contracted to provide services consisting of initial proposals for submission to the local authority overseeing the development. The work and fee proposal was split into two stages: Stage One amounting to £4450 plus VAT and Stage Two amounting to £10,000 plus VAT. Expenses and disbursements were an additional charge. Stage One works were to be undertaken between 14 December 2010 and 29 January 2011. Stage Two works were to commence on 1 February and to be completed by 12 March 2011.
4. A dispute arose between the parties regarding the works undertaken and the amount charged. An invoice for £9681.25 was rendered to Lilimont on 5 May 2010 which was not paid. Lilimont stated that the work invoiced was not authorised and further that the work, the subject of the invoice was not even done. The matter was referred to arbitration which was conducted by Mr Christopher John Calcroft. His award was made and published on 10 June 2011. His finding was that Lilimont was under no obligation to pay the invoice rendered. This matter has now come before this Committee to consider two matters:
a. whether Mr Harty made a claim for costs which he knew, or ought to have known he could not justify and
b. whether Mr Harty made representations in witness statements provided for those arbitration proceedings which were inaccurate, misleading and untrue.
5. The Committee was further asked to consider whether Mr Harty’s actions in respect of any allegation found proved, were dishonest.
6. In Mr Harty’s completed Acknowledgement of Notice of Hearing form, and in entering his pleas to the charges, Mr Harty denied all the allegations. He denied dishonesty and further that his conduct amounted to unacceptable professional conduct.
7. In reaching its decisions, the Committee carefully considered all the documentary evidence presented to it from both the Board and Mr Harty which included:
a. The Report of the Board’s Solicitor amounting to 418 pages;
b. Copy Particulars of Defence dated 28 March 2013;
c. Copy statement of Daniel Spibey dated 25 May 2011;
d. Copy Acknowledgement of Hearing Form dated 18 December 2012;
e. Mr Harty’s copy witness statement dated 28 May 2013;
f. Copy witness statement of Ms S Ryder dated 27 November 2012;
g. Copy unsigned and undated witness statement of Paul Shedden;
h. Bundle of additional defence documents numbered 1-358.
8. So far as the arbitration decision is concerned, the Committee accepted that it was not bound by its findings and further that in reaching his decision, the Arbitrator did not have the benefit of hearing the live evidence that had been put before the Committee.
9. The Committee further considered the live evidence of the complainant called on behalf of the Board as well as Mr Harty’s evidence which he gave under oath, and that of Mr Shedden called on his behalf, together with both Mr Goodwin’s and Mr Lazarus’ submissions. The Committee heard and accepted the legal advice given by its Clerk. The Committee had regard to the fact that the burden of proof in the case was on the Board and that the civil standard applied, namely proof on the balance of probabilities. This meant that an allegation would be found proved if it was considered that it is more likely than not to have happened. Whether the conduct alleged amounts to unacceptable professional conduct was a matter for the Committee’s judgement.
10. Turning to the allegations, the Committee found the facts of allegation 1a proved on the basis that Mr Harty ought to have known that his invoice could not be justified. The Committee’s reasons were as follows.
11. It is helpful to set out the background to this matter. On 7 November 2009, the complainant emailed Mr Harty with details of the issues and his needs. It was clear from that email that Mr Harty was required to give an idea of “cost and the stages” to provide a practical design concept which “needs to be practical and based on the actual fall and orientation of the land. The design is required for initial informal (although high level) acknowledgement from the Municipality. At this stage however, the design will not be submitted for planning and therefore there will be room for evolvement and refinement through the later stages”.
12. By 17.30 on 9 November, the complainant had received Mr Harty’s proposal sent by email at 12.51 which included at item number 9, a proposal in respect of “Stage 1” work, to produce an A3 colour brochure to meet and present in Montenegro to the Municipality. The complainant emailed Mr Harty the specifics of what was required. He stated:
“what we need at this stage is to take some elements of stage one to produce a practical concept design based upon a site visit & other topographical information. The design is required simply for initial informal acknowledgement from the Municipality prior to any formal submissions. After this we would be confident that the fundamental designs & densities would meet with planning criteria and we could proceed with the full brief.
The elements of the brief we require first are as follows;
a. Pre-Stage One
i. Information gathering; Topographical survey, OS type information, Ownership deed plans, Google maps
ii. Site visit and analysis of context to establish the constraints and opportunities for the developments
iii. Develop the detailed brief with the client
iv. Prepare three simple sketch options by hand
v. Review the options in terms of privacy, access, plot commerciality, landscape, topography, drainage, daylight, views, aspect, power, site circulation, parking, mix of types, heritage, vernacular typologies…
vi. Develop single design in CAD or by hand
vii. Prepare a very simple development design statement detailing the materials, design ethos and ambition for the development.
Could you prepare a fee solely for the above, then another for continuing with the full proposal as outlined in your email.”
13. On 20 November 2009, the complainant further emailed Mr Harty as follows:
“We have now received quotes from other architects and met with the Municipality chief. We would like to give you the opportunity to modify the pre-stages for the concept.
As said originally, this needs to be a simple concept design layout without progressing into the formal stages of the masterplan. This is because it is only being used for initial acknowledgement from the head of the municipality, we will then progress formally. There is a minor chance that he will tell us to start again so we do not want to spend multi-thousands at this stage”.
14. It was clear from these emails that the complainant only wished work to be carried out up to the stage of seeking informal approval from the Municipality Manager for the project. It was the complainant’s evidence that he considered this stage of work to be the “stage 1” work, and any work required after informal approval had been obtained, he considered to be “stage 2” work.
15. Thereafter, Mr Harty submitted a number of fee proposals, amending his price to reflect the fact that he was prepared to accept a lower fee as he was keen to secure the contract. In his fee proposals and subsequent amendments, Mr Harty split his work into two stages, each with their own timetable. He stated that this came about because he initially artificially split the work timetable around the Christmas break, but adopted the same format in subsequent proposals. This was also a format that had also been used by other Architects who had been asked to quote for the project.
16. The letter of engagement and fee proposal that was signed was dated 11 December 2009. It listed ten items included within the scope of Stage 1 and eight items within the scope of stage 2. Each stage contained a requirement for there to be a deliverable of an A3 colour brochure. A timetable for carrying out the works was agreed as was the cost. The agreement contained in the letter of 11 December was accepted “within the terms outlined in our proposal dated 10 December 2009”. That document set out additional terms covering termination or suspension of services. Whilst the Committee had not had sight of a signed copy of the agreement dated 11 December 2009, it was agreed evidence that that document was signed by both parties.
17. It was however, apparent from the face of that document, that items numbered 1, 2 and 3 of Stage 2 work, were in fact matters that the complainant required in order to obtain initial approval from the Municipality – they mirrored items 5, 6 and 7 of his email dated 9 November 2009 referred to above. This was not raised as a concern by the complainant, nor was it brought to his attention by Mr Harty. As a result, from Mr Harty’s evidence and that of Mr Spibey, there appears to have been a fundamental misunderstanding as to what each party considered was contractually agreed:
18. The complainant considered stage 2 work to represent work required after informal approval was obtained from the Municipality Manager for the project and therefore not required until then. This two stage process was required to minimise cost until local approval was forthcoming.
19. Mr Harty considered that the work, arbitrarily split into two sections, related to the work the complainant considered to be stage 1 work. In his email dated 16 March 2010, he recognised that “The appointments goal, was to prepare an outline Master plan design in sufficient detail to present to the Municipality manager in Budva, Montenegro.”
20. Irrespective of the differing perspectives, both parties signed the agreement and its terms govern the contractual relationship between them both, subject to any agreed variation of its terms.
21. On 26 January 2010, a meeting between Mr Harty and the complainant was held in which he was advised that the meeting with the Municipality Manager would take place on 8 February 2011. As a result, he had less time than he thought to complete all the work he was required to complete. Mr Harty stated that he was reluctant to tell Lilimont that he would find it difficult to complete his work by then as he did not want to be seen as being as unable to meet their requirements, given that Lilimont was a new client and he was anxious to secure this type of work. As a result, Mr Harty stated that he only produced one A3 deliverable.
22. By 15 March, it became apparent that the relationship between Mr Harty and the complainant was breaking down. By an email dated 14 March, he was instructed to hold off progressing with the master plan which he acknowledged in his letter dated 15 March, when he suggested submitting an invoice for stage 2 work undertaken. In the complainant’s email dated 16 March, he raised the fact that Mr Harty was seeking to claim payment for work “that was not agreed at this stage, and that has never been mentioned until now. It is clear that you do not get what we are on about, or will do so in the future”.
23. In Mr Harty’s letter dated 15 March and email dated 16 March 2010, he recognised that he had not completed all the work he was contracted to carry out. Irrespective of what percentage of work was actually completed under each stage of the agreement dated 11 December 2009, Mr Harty accepted by 15 March that he had only completed 80% of stage 1 work and 50% of stage 2 work. He accepted that “We produced work, but did not complete all the deliverables as outlined in our initial scope proposal. This is why we propose to revise our fee to reflect the reduced service. £9000 as opposed to £14,000.” The complainant having raised his concerns about the fact that Mr Harty was seeking to invoice for Stage 2 work, Mr Harty subsequently submitted an invoice on 5 May 2010 for the full balance of the monies for both stages 1 and 2 initially agreed under the contract for the sum of £9681.25 plus VAT.
24. The terms of the agreement between Mr Harty and the complainant were to provide the services set out in the document dated 11 December 2010. It was not an unparticularised agreement to provide all such services as may be required to obtain the informal approval of the Municipality Manager. Mr Harty submitted that he was justified in seeking the whole amount of his invoice because it was a contract for a fixed sum and further, because the Municipality Manager did give informal approval for the project. The Committee rejects that argument. Whilst the contract was for a fixed sum of money, it represented a fixed payment for specified works which, on his own admission, Mr Harty did not fully carry out. He was not therefore entitled to payment for the amount he sought.
25. The Committee agrees with the reasoning of the Arbitrator in this regard. The Fee proposal Form dated 10 December 2010 states:
a. “Should the client choose to postpone or terminate the project, the consultant shall be entitled to full payment of all services rendered as described in this fee proposal. Termination or suspension at any point during a stage of works will be paid on the calculation of a time charge for work done and agreed with the client.”
26. Mr Harty stated in evidence that he made an offer to invoice for the balance of the lesser sum of £9000, rather than the full balance as a gesture. When not accepted, Mr Harty considered that he was entitled to invoice for the full sum on the basis that a fixed price had been agreed. For Mr Harty to be entitled to all of his fee, he would have had to have rendered all the services he was contracted to provide. Both in his letter dated 15 March and email dated 16 March, Mr Harty accepted that the value of the additional work rendered by him amounted to £9000, not £14,000.
27. The Committee finds that Mr Harty did not render his invoice dated 5 May for the full balance of fees he considered was owing to him, knowing that he was not entitled to that sum. However, it finds that Mr Harty held an erroneous belief that he was entitled to the full balance. Given the terms of the contract agreed between parties, the Committee finds that he ought to have known that he made a claim for costs that he could not justify.
28. The Committee finds allegations 1b proved for the following reasons:
29. When Mr Harty’s invoice dated 5 May 2010 was not paid by the complainant, he instigated arbitration proceedings. In support of his claim, he submitted and relied upon two witness statements, one of which is dated 26 March 2011. The other appears undated although he accepts that the second statement was signed by him.
30. The issue for this Committee to consider is whether representations made in those statements were inaccurate, misleading and untrue. The Committee draws no meaningful distinction between the meaning of “inaccurate” and “untrue”. If a representation is untrue, it must follow that it is also inaccurate and vice versa. A statement is misleading if it is made either with the intention or with the reasonable expectation that the recipient will rely on its contents as being true, yet it conveys an untruth, a wrong idea or a false impression.
31. The statements were submitted to the Arbitrator for the purpose of arbitration proceedings instigated by Mr Harty, solely for the purpose of satisfying the arbitrator that he was entitled to his full fee and for seeking an award in his favour. The contents of the statements could only have been intended to achieve that end. The absence of oral evidence in those proceedings made the accuracy of the contents particularly critical. The statements contained a declaration of truth at their conclusion, immediately below which, Mr Harty signed them, having checked their contents.
32. The Committee rejects Mr Lazarus’s submission that there must be evidence that the Arbitrator was in fact, misled to conclude that a statement was misleading. The Committee considers that a statement can be misleading irrespective of whether or not the Arbitrator was in fact misled. The Committee has seen no evidence to this effect one way or the other. Furthermore, the extent to which he may have been misled or the significance of the representation itself is similarly immaterial in the committee’s determination as to the question of whether the statements were misleading. Having heard the Clerk’s advice, the Committee accepts that a misleading statement can be made dishonestly or recklessly and that it is open to the Committee to find this allegation proved even if dishonesty is not found.
33. The Committee will address each representation in turn:
34. First witness statement:
35. Paragraph 9:
36. “… produced a package of work instructed by Lilimont to seek the Municipality Manager’s general approval. The content of this package was a blend of stages 1 and 2 with addition of other works deemed to be necessary to communicate our design in the best light”.
37. The Board alleges that this statement is inaccurate, misleading and untrue because no work was carried out in relation to Stage 2 in part or at all. Whilst the Committee finds that Mr Harty did not complete all the work he was required to complete under either Stage 1 or Stage 2 of the agreement, the Committee does not find this representation inaccurate, misleading or untrue. Mr Harty did produce work to seek initial approval from the Municipality Manager and the work did include some work from both Stages 1 and 2. For example, Stage 1 did not include any requirement to produce a plan or drawing which was required. A very simple development design statement was produced. Mr Spibey conceded, albeit begrudgingly, that the seven line statement at the start of the A3 brochure could be construed as such a statement. Such work is clearly within the scope of Stage 2 work as per the agreement dated 11 December 2009.
38. Paragraph 10:
“At this point, …. had completed approximately 80% of Stage One and 50% of Stage 2. As I have explained ….. produced additional work as supplementary to the Stage One and Stage Two deliverables which included:
a topographical three dimensional CAD model of the site
an Architectural CAD model of the luxury contemporary villas, requested by Lilimont
a cardboard site model
a meeting with Manly International to assist business connections in Montenegro for Lilimont
39. Mr Spibey accepts that some work within the scope of Stage 1 work was carried out. It is not, however, possible for the Committee to accurately calculate the percentage of work that was undertaken in each stage of work. It cannot be right that the calculation is a simple matter of dividing the total work by the number of items within the scope section of the agreement. Each item will represent a different percentage of the total work. For example, developing the single design, listed at item 2 of Stage 2 of the contract may have taken significantly more than an eighth of the time to complete all eight items. The onus is on the Board to prove its case and in the absence of evidence satisfying the committee that the approximate percentages are inaccurate, the Committee cannot be satisfied that the allegation is made out in respect of the first sentence.
40. However, the Committee reminds itself that this statement was made by Mr Harty to justify his fees to seek an award from the Arbitrator in his favour. Mr Harty stated that he produced work as “supplementary to the Stage One and Stage 2 deliverables”. He accepted that only one deliverable was produced and any representation made to suggest or infer that he had produced two is inaccurate, misleading and untrue given the context within which the statement was made.
41. Turning to the 4 sub headings referred to, these items were referred to as “Extra Over” items in Mr Harty’s completion statement. He stated that they were not charged for, but were evidence of the fact that he had gone the “extra mile” to provide a good service, so as to justify his overall fee.
42. a) a topographical three dimensional CAD model of the site
The images purporting to represent this work appear at page 59 of the large A3 bundle provided to the Committee. Whilst the images may be basic in nature, this was not work charged for, albeit that Mr Harty stated that this work had been done as a means of justifying the effort he had put into the project. It cannot however be said that the statement that these images were produced is inaccurate, misleading or untrue.
43. b) an Architectural CAD model of the luxury contemporary villas, requested by Lilimont
The Committee have seen five such images in the above referred to large A3 bundle. However, the complainant denied that these images were ever requested by Lilimont and his evidence is credible on this point given the initial cost constraints and the outline nature of the work initially required which was communicated to Mr Harty in the complainant’s email to him of 20 November 2009. The Committee have also concluded that if such images were required, then it is reasonable to infer the requirement to produce them would have been included in the agreement, and Mr Harty would undoubtedly have charged for producing them. Mr Harty did not provide any evidence to enable the Committee to conclude that the images were requested by Lilimont and Mr Spibey gave clear and credible evidence that this was not the case. In the circumstances, the Committee finds that this statement was inaccurate, misleading and untrue.
44. c) a cardboard site model
Despite the issue of the existence of a cardboard site model having been repeatedly challenged by Mr Spibey, no evidence of its existence was forthcoming until a photograph was included in Mr Harty’s response to the complaint to ARB dated 16 January 2012. The Committee has heard not only Mr Harty’s evidence as to the model’s existence, but also that of Paul Shedden who attended to give live evidence, together with the evidence of Susan Ryder presented in documentary form. Having heard their evidence, the Committee accepts on the balance of probabilities that the model existed in January 2010. It is a matter of conjecture as to why Mr Harty chose not to produce evidence of its existence before January 2012.
45. However, the representation Mr Harty made in support of his claim that he had done work over and above what he was asked to do and without payment, was that he had made a “cardboard site model”. It is a proper conclusion to draw that the suggestion is that Mr Harty had produced a model of the site, made from cardboard. Mr Harty’s evidence was that he had in fact, produced a model from irregular shaped sugar cubes, stuck on cardboard. Whilst Mr Harty stated it was crude in its construction, he stated that it was sophisticated in its interpretation as it gave you a better understanding of how the site might look in practice. The Committee did not accept as credible, Mr Harty’s evidence that this extremely crude model, made from what he considered to be “rustic” looking sugar cubes, would give Mr Harty meaningful insight as to how light might fall on the development or help him to better visualise the views residents might have from individual villas. Apart from the obvious crudeness of the model, the model was flat and not representative of a steeply sloping site. Mr Harty’s evidence in this regard undermined the credibility of his evidence generally. The model, being made from sugar cubes, albeit stuck on a sheet of card, cannot legitimately justify being described as a “cardboard site model”. Such a statement, having been made by an architect, gives the impression that Mr Harty had made a model, not only from cardboard (as opposed to sugar cubes) but also of significantly more sophistication than was in fact the case. In the circumstances, the Committee finds this statement to be inaccurate, misleading and untrue.
46. d) a meeting with Manly International to assist business connections in Montenegro for Lilimont
It is agreed evidence that this meeting took place so the Committee has no basis for finding this statement inaccurate, misleading or untrue.
47. Paragraph 12:
“Once … had been paid these Stage One fees, we commenced Stage Two work elements and continued throughout February producing a presentation brochure for Lilimont”.
48. Mr Harty gave evidence that the A3 brochure was delivered on the 5th February 2010 but that amendments had to be made to it so that it would be available for the 8th February meeting with the Municipality Manager. Whilst there were ongoing communications between him and the complainant after the 8th February, the Committee has seen no evidence to suggest that Mr Harty continued to produce a presentation brochure after that date. Mr Spibey stated, and the Committee accepts that Mr Harty did no further work after delivery of the A3 brochure. In the circumstances, the Committee finds that Mr Harty’s representation was inaccurate, misleading and untrue.
49. Paragraphs 13 and 14
For the reasons stated above in respect of paragraph 10, the Committee does not find the representations inaccurate, misleading or untrue.
50. Paragraph 16
“This sum relates to the work highlighted in the Stage One and two schedules and covers the additional time and effort … put into developing the client’s project. This invoice was submitted on 5 May 2010 and included a Completion Statement that detailed significant project information to allow the client to understand how we arrived at our invoice sum, which totals £9681.25 after deducting the original payment that had been made”.
51. The completion statement does set out the extent of the work completed as understood by Mr Harty. However, the statement also states that two deliverables were handed over, in January and February 2010 respectively. This statement is significant as Mr Harty was contracted to provide two A3 deliverables but did not do so. Mr Harty accepts that two deliverables were not handed over yet he relied on the representation that the completion statement was sufficiently detailed, and by inference, accurate, for the client to understand how the sum was arrived at. Mr Harty stated in evidence that the completion statement was physically drawn up by his colleague, Mr Coward, but he has accepted that it was his responsibility to check the document for accuracy and that he failed to do so. In the circumstances, the Committee finds Mr Harty’s representation inaccurate, misleading and untrue.
52. Second witness statement:
53. Paragraph 7:
“On several occasions we would telephone Daniel Spibey only to be told he was in Istanbul or somewhere where he could not deal with the queries”.
54. Mr Spibey’s evidence was that he was not abroad throughout the whole period from 15 December 2009 until 8 February 2010. Mr Harty has exhibited some emails which suggest that Mr Spibey may have been abroad but they relate to 20 and 25 November, and 10 December 2009, i.e. before there was any contractual relationship between Mr Harty and Lilimont. Whilst Mr Harty’s representations have the potential to infer or suggest that Mr Spibey was difficult to get hold of because of his unavailability, or that he was unavailable whilst formally instructed, the statement is not strictly untrue or inaccurate and the Committee therefore makes no such finding.
55. Paragraph 9:
“The information that would have been required for each brochure was merged into one document which served both the purpose required in Stage One and the purpose required in Stage Two. Lilimont were fully aware that the brochures were merged into one document and why”.
56. For the reasons stated above, the Committee finds that some Stage 2 work was included in the one A3 deliverable that was provided.
57. However, Mr Spibey gave evidence that it was his understanding that only stage 1 work was to be undertaken prior to obtaining informal approval for development from the Municipality Manger and his email of 20 November 2009 referred to above, makes his reasons clear as to why this should be the case. The contract clearly states that two deliverables were to be produced. Mr Spibey was adamant in his denial that he would have authorised the merging of stages 1 and 2 given his belief that they related to periods of time before and after the obtaining of such approval. Had he been aware that the documents were being merged and understood why, it is inconceivable he would have written his email of the 16 March 2010 in terms expressing his concern that work had been done that was not authorised. In evidence, Mr Harty was unable to explain how Mr Spibey would have been fully aware that the brochure was merged and why. In the circumstances, the Committee finds that Mr Harty’s representation was inaccurate, misleading and untrue.
58. Paragraph 23:
“Lilimont stated that it required the A3 deliverable for Stage 2 by 8 February”.
59. The Committee finds that only one brochure was produced given the short time scale to produce the same, i.e. 8 February 2010, but does not accept that Mr Spibey was agreeable to this. For reasons previously given, the Committee does not accept that Mr Spibey considered that any work under stage 2 was justified because he considered that that was work that would only fall due after informal approval had been granted. The Committee accepts that evidence as being credible and that he would not have asked for any stage 2 work to be done given his understanding as to what Stage 2 involved. The Committee saw no evidence to the effect that Lilimont made such a statement. The Committee therefore finds this representation inaccurate, misleading and untrue.
60. Paragraph 35:
“The various tasks listed within each stage are not an exact checklist of what must be done in order to complete that stage but instead are the types of task that might be required”.
61. This statement is at odds with Mr Harty’s statement at paragraph 41 of his first witness statement in which the identical description of work task was described as “detailed significant project information to allow the client to understand how we arrived at our invoice sum”. The fact that on the completion statement, Mr Harty appeared able to identify an exact percentage of each task that was completed, suggests that, contrary to his statement, the listed tasks were a contractually agreed checklist of what was to be undertaken by the practice. The Committee therefore finds this statement inaccurate, misleading and untrue.
62. Paragraphs 36-60:
Mr Harty set out a list of works undertaken by the practice to justify his invoice. The Committee finds two examples of statements contained within these paragraphs which are inaccurate, misleading and untrue:
a. at paragraph 43, “Servicing strategy and connectivity diagrams”, Mr Harty states “These were completed by … and were included in the A3 brochure”. However in his completion statement dated 5 May 2010, he stated that this work was only 50% completed;
b. at paragraph 55, “Prepare a very simple development design statement detailing the materials, design ethos and ambition for the project”, Mr Harty states “This was complete for this stage of the project”. However in his completion statement, he stated that this work was only 20% completed.
63. Paragraph 54:
“A CAD design was produced and Lilimont were aware of this because we discussed and showed it to them”.
64. The Committee has had sight of a design of the site. Mr Harty gave evidence that the design was partly hand-drawn but based on a CAD design. Mr Spibey denied that he saw a CAD design. Whilst this statement, taken in isolation is inaccurate and untrue, taken in context, the Committee does not find that the statement is misleading. Irrespective of the contents of this first statement, the rest of paragraph 54 is unequivocal in that Mr Harty stated that the design was not a CAD design, referring to paragraph 22 of his statement which provided a rationale for the design being hand-drawn and not in CAD. Taken in context, the Committee does not find this representation misleading.
65. Paragraph 61:
“…Daniel Spibey states that Stage Two should only start once Stage One had been completed. This may have been the case as originally envisaged, but the accelerated time scale meant that the stages were merged”.
66. The Committee finds that this statement has resulted from the fundamental misunderstanding between the parties as to what the stages represented. Whilst both separately referring to Stages One and Two, Mr Harty and Mr Spibey were not in agreement as to what Mr Harty considered these stages represented. The representation suggests that the shortened time scale required a merging of stages one and two. Mr Harty has not specifically stated that Mr Spibey agreed to this, he merely stated that the stages were merged. Whilst the Committee has seen no evidence that Mr Spibey agreed to a variation of the contract “merging” the two stages, in the absence of an express assertion that he did agree to it, the Committee does not find this statement inaccurate, misleading and untrue.
67. To the extent that the Committee has found that Mr Harty has made representations in his first and second statements that are inaccurate, misleading and untrue, the Committee finds charge 1b proved.
68. Having found the facts of both allegations 1a and 1b proved, the Committee then considered whether Mr Harty’s actions were dishonest.
69. The Committee has applied the two limbed test for dishonesty set out in Twinsectra v Yardley  UKHL 12 namely:
i) it must be established that the defendant’s conduct was dishonest by the standards of reasonable and honest people (“the objective test”); and
ii) that he himself realised that by those standards his conduct was dishonest.. although he should not escape a finding of dishonesty because he set his own standards of honesty and does not regard as dishonest what he knows would offend the normally accepted standard of honest conduct (“the subjective test”).
70. In deciding the second question, the Committee must consider Mr Harty’s state of mind at the time. If after taking into account all of the evidence, the Committee is satisfied that the answer to both of those questions is yes, then the element of dishonesty is proved. If the Committee is not so satisfied, the element of dishonesty is not proved.
71. So far as allegation 1a is concerned, the Committee is not satisfied that simply by virtue of submitting an invoice that could not be justified, the objective test would be met. In any event, for the reasons stated above, the Committee has found that Mr Harty did not submit an invoice that he knew could not be justified. As such, the Committee finds that in respect of allegation 1a, Mr Harty’s conduct would not be regarded as dishonest by the standards of reasonable and honest people and furthermore, it therefore follows that it cannot be satisfied that he was aware that what he was doing would be regarded as dishonest by those standards.
72. So far as allegation 1b is concerned, the Committee finds that where it has made a finding that Mr Harty has made a representation in his witness statement prepared for his Arbitration hearing that was inaccurate, misleading and untrue, that the objective test is satisfied. It has therefore gone on to consider whether Mr Harty realised that, judged by those standards, his conduct was dishonest.
73. In considering this, the Committee has considered the credibility of Mr Harty’s evidence generally, including not only the contents of the statements prepared for arbitration, but also the contents of his correspondence to ARB, his witness statement prepared for this hearing dated 28 March 2013, and his live evidence at this hearing.
74. Mr Harty stated in evidence that he had not acted dishonestly or without integrity and that he had simply not applied the same rigor as Mr Spibey in the arbitration proceedings. Mr Harty stated in his response to the complaint attached to his letter to the Board dated 17 November 2011 that he did not have “the same appetite for providing robust evidence that discredited Lilimont to the same degree they chose to apply to … Architects”. However, the Committee considers that Mr Harty’s evidence is characterised by statements which, when challenged, he changed or retracted. Where he has made subsequent, wholly inconsistent statements, the Committee concludes that he must have known that at the time he made his earlier statement, they were untrue and hence finds the subjective test proven in respect of Mr Harty’s representations in these circumstances.
75. In considering the overall credibility and degree of honesty of Mr Harty’s evidence the Committee has reminded itself of the numerous inconsistencies within his evidence. In Mr Harty’s letter to the Board dated 17 November 2011 he stated “in …. completion statement dated 5 May 2010…there is no reference to a stage two brochure”. That is clearly untrue on the face of the document. He stated that “Deliverables are described importantly by their completion status percentage” which again is inaccurate. Mr Harty’s suggestion that “Handed over is not an indication of 100% complete or formulated into a new brochure” is not credible and the words “handed over” cannot realistically have any meaning other than their everyday meaning. Mr Harty’s live evidence that reference to “deliverables” in the completion statement did not refer to the A3 brochures as it did not specifically refer to “brochures” is, similarly, not credible.
76. In Mr Harty’s response to ARB in that same letter, he stated that the cardboard model can be retrieved and sent to ARB. That confident assertion had no basis in fact as he did not know whether it was available to be retrieved, yet he made the assertion nonetheless. In Mr Harty’s submissions to the Board dated 16 January 2012, when referring to the model, he stated that the model was currently in storage which he accepted in evidence was incorrect. He stated in evidence that he believed that to be the case, but that was not what was stated in his letter. The Committee concluded that these positive assertions would only have been made in the hope that it would satisfy ARB as to their accuracy.
77. At the commencement of Mr Harty’s cross examination by Mr Goodwin he confirmed on oath that the contents of his various witness statements were true, save for retracting a statement that he made within his statement dated 28 March 2013 that Mr Spibey had viewed the brown and white sugar lump model in Mr Harty’s office. However, as at 28 March, Mr Harty considered that that statement was true and had signed the declaration to that effect. By virtue of his admission that that did not occur, Mr Harty must have known that that statement was untrue when he signed it as being such. The Committee does not accept his argument that the statement had somehow found its way into the statement without his knowledge, having previously provided this information to his solicitors. Mr Harty signed that document having made a declaration that its contents were true and submitted it to his regulator.
78. The Committee finds that Mr Harty’s evidence is generally undermined by numerous inconsistencies. The Arbitrator refers to the fact that in his first witness statement, Mr Harty claimed that Mr Spibey signed the 10 December letter of appointment, but in his second witness statement, he agreed that the agreement signed was the one dated 11 December 2010.
79. The Committee further notes that at paragraph 6 of his first witness statement, Mr Harty states that the fee proposal dated 10 December was signed. Even though he could not find a signed copy of it, he was “absolutely certain that it was signed by Daniel Spibey”. However, the Committee is satisfied that that could not be true. Mr Harty accepted in evidence that Mr Spibey handed him an envelope that he assumed contained the signed agreement, but that Mr Harty never saw its contents. Furthermore, Mr Harty must have known that the statement was untrue because he confirmed that the fee proposal form would not have been signed in any event and further that there was no place on the documents for a signature. Mr Harty’s answer on oath to the question posed by Mr Goodwin that the contents of his first witness statement were true, also cannot therefore be accurate. The Committee therefore concludes that, in these circumstances, the subjective test is made out and that this representation was made dishonestly.
80. In paragraph 10 of Mr Harty’s first witness statement, he stated that he “had produced additional work as supplementary to the Stage One and Stage 2 deliverables”. Applying the subjective test, Mr Harty must have known that this statement was dishonest because he accepts that …. did not produce two deliverables. The Committee therefore finds that this representation was made dishonestly.
81. In response to a question from Mr Lazarus, when asked whether he had ever made a cardboard site model, Mr Harty quickly responded that he had not. When questioned about this by the Committee, Mr Harty immediately sought to change his answer. Mr Harty must have known that his initial answer was untrue because it was his case that he had made a cardboard model. Mr Harty’s willingness to make a statement and then change his answers when it became apparent that his answer was untrue has been a feature of his evidence generally. Were these instances isolated, the Committee might conclude that he was mistaken or had simply made an error. However, this has occurred on a number of occasions both in witness statements for the arbitration and these proceedings, in writing to ARB, and in giving live evidence. Considering the credibility of Mr Harty’s evidence in the round, the Committee concludes that in making inaccurate, misleading and untrue representations in his statements, Mr Harty knew that these representations were made dishonestly, thereby satisfying the subjective test.
82. Having found the facts of both allegations 1a and 1b proved, the Committee went on to consider whether the conduct amounts to unacceptable professional conduct. In reaching its determination, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from its Clerk.
83. Having found allegations 1a and 1b proved and having found that in respect of allegation 1b, Mr Harty acted dishonestly, the Committee finds that Mr Harty’s conduct falls substantially below the standard expected of a registered architect and in breach of standards 1.1 and 1.2. In failing to comply with these standards, the Committee finds that Mr Harty’s conduct does amount to unacceptable professional conduct.
(Dated: 29 May 2013)
Reconvened hearing 3 September 2013
84. The hearing reconvened on the 3 September 2013 to consider penalty and Mr Lazarus addressed the Committee in mitigation.
85. In reaching its decision, and in considering whether to impose a sanction, 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 performance. It has carefully considered Mr Harty’s representations made in these proceedings and has heard and accepted the advice of its clerk. The Committee 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 Mr Harty’s interests, the indicative sanctions guidance and the need to act proportionately, taking into account all the aggravating and mitigating factors in this case, and in doing so, it has exercised its own independent judgement.
86. The Committee has had regard for the fact that Mr Harty has had an unblemished career spanning 21 years and that this is an isolated matter. The testimonials handed to the Committee today attest to Mr Harty’s good character and integrity and professionalism. Mr Lazarus submitted on Mr Harty’s behalf that, even where a finding of dishonesty has been made, that he took steps to correct the position and that, taken in context, the dishonesty was limited and did not result in a material gain for either himself or the practice, and that the complainant suffered no loss as a result of his dishonesty. The Committee noted that Mr Harty had time to reflect on the service provided by him and that he has now employed an administrative manager to enhance his management organisation and that he has now achieved ISO 9001 accreditation and RIBA chartered status.
87. However, it was also accepted on Mr Harty’s behalf that this was a serious incident. Repeatedly making inaccurate, misleading and untrue representations is conduct unworthy of a professional and calls into question integrity. That any such representations should be made dishonestly or made in the course of arbitration proceedings, aggravates the seriousness of the actions.
88. Dishonesty and/or a lack of integrity on the part of a professional architect is obviously a serious matter. Honesty and integrity are the cornerstones of a professional and failure to demonstrate these qualities severely undermines the confidence that can be placed in that individual and in the profession generally. The public should quite rightly be able to expect that representations made by a professional architect are made honestly and can be relied upon.
89. The matters found proved reflect serious failings on Mr Harty’s part, such that the Committee considered that the imposition of a sanction is necessary. Neither a reprimand nor a penalty order would be appropriate to reflect the gravity of Mr Harty’s conduct.
90. The Committee next considered whether a suspension order was appropriate. Having carefully considered the Indicative Sanctions Guidelines, the Committee considered that such a sanction would be insufficient to protect the public or the reputation of the profession. Making untrue and misleading statements in the course of litigation and doing so dishonestly is, in the Committee’s view, behaviour that is fundamentally incompatible with professional obligations. The matters found proved are so serious that only erasure from the register will protect the public and / or the reputation of the profession. The Committee therefore directs that Mr Harty’s name be erased from the register. Such erasure is permanent though an application may be made to ARB for re-entry after no less than two years. The Committee sees no reason for making any contrary recommendation, hence it recommends that Mr Harty shall be entitled to apply for re-entry in no less than two years’ time.
Stephen Harty was re-admitted to the Register of Architects by a decision of the Board dated 11 February 2016.