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Mr Toby Howell

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Toby Howell (076899E)

Held on 14 – 16 November 2016

 

At

ARB

8 Weymouth Street

London

W1W 5BU

———-

Present

Mr Paul Housego (Chair)

Mr David Kann (PCC Architect Member)

Ms Jules Griffiths (PCC Lay Member)

Ms Melinka Berridge (Clerk)

———–

 

Mr Matthew Corrie of Blake Morgan attended behalf of ARB.

Ms Sian Mirchandani, Counsel appeared on behalf of Mr Howell.

 

 

Allegations

 

1.       Mr Howell appears before the Professional Conduct Committee (“the Committee”) of the Architects Registration Board (“the ARB”) to respond to an allegation that he is guilty of unacceptable professional conduct (“upc”).

 

2.       The allegation put is as follows:

 

“The allegations made against the Respondent are that, in connection with the extension and alteration works undertaken by Mitchell Evans Architects at …………………….. for which he had overall responsibility and whilst supervising the JCT contract administration, he:

 

Allegation 1: Did not adequately inspect the works, or ensure that the works were adequate, prior to the final certificate issued on 23 September 2014, in particular that he:

 

a.      Failed to ensure that known defects in relation to the windows and doors had been resolved 

b.      Failed to ensure that the ongoing dispute between his client and D….. S…….. Building Services Ltd, regarding faulty pumps, had been satisfactorily resolved

 

Allegation 2: Did not allow a reasonable length of time for A….. I. to respond to an email dated 23 September 2014 prior to issuing, or allowing the final certificate to be issued, on that same date

 

Allegation 3: Stated in a letter dated 17 October 2014 that “at the time of signing off all doors and windows were working properly and were inspected by ourselves” which was

a.      Inaccurate

b.      Misleading

c.       Dishonest

 

and in doing so his conduct fell below the standard expected of a registered architect and he is therefore guilty of unacceptable professional conduct.”

 

3.       The provisions of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) said to be relevant are:

For allegation 1 – 1.1, 1.2, 2.1, 6.1 and 6.4

For allegation 2 – the same

For allegation 3 – 1.1 and 1.2

 

4.       The preamble to the Code states that any failure to comply with the provisions of the Code is not of itself to be taken as constituting upc or serious professional incompetence, but shall be taken into account in any disciplinary proceedings before the Board’s Professional Conduct Committee.

 

5.       It also states that architects are expected to be guided in their professional conduct and professional work by the spirit of the Code as well as by its express terms. The fact that a course of conduct is not specifically referred to in the Code does not mean that it cannot form the basis of disciplinary proceedings.

 

6.       Each case is judged on its facts, and there may be circumstances in which upc or serious professional incompetence is found even where there has been no clear breach of the express terms of the Code. Not every shortcoming, or failure to meet the Standards expected by the Code, will necessarily give rise to disciplinary proceedings.

 

7.       The relevant provisions of the Code are:-

 

Standard 1

Honesty and Integrity

    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.

    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.

 

Standard 2 Competence

    1              You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work you should ensure that they are competent and adequately supervised.

 

Standard 6

You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards

    1              You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.

 

    4              You should, when acting between parties or giving advice, exercise impartial and independent professional judgment…

 

 

Summary

8.       The clients wanted to extend a dwelling, and engaged Mr Howell’s firm. He was in charge of the project. The final certificate was issued by Mr Howell’s assistant on 23 September 2014, after an email was sent at 14:34 that same day asking the son of the Complainants (who lived in the dwelling) if all the identified defects had been remedied, but without waiting for a reply. There had been no recent inspection of the windows and doors, and that was on the list. When challenged about it Mr Howell wrote a letter on 17 October 2014 which said  “with regard to the final signing off of the defects, at the time of sign off all doors and windows were working properly and were inspected by ourselves.”

 

9.       There had been a failure of the sewage pumping system, which the Complainants had attributed to building rubble found in the sewage tank, and the responsibility of the contractor. It is alleged that Mr Howell said this was outside his remit instead of resolving the matter.

 

 

Complaint

10.   The ARB brings the allegation following a complaint by the Complainants made some time after the letter of 17 October 2014 and after further communications between them.

 

Burden and standard of proof

11.   The ARB is required to prove the allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it. There is no requirement for Mr Howell to prove anything. The Committee has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply.  In particular Mr Howell has the right to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to upc is a matter for the Committee’s judgment, and there is no burden of proof. A finding of upc requires the Committee to judge that conduct to be serious.

 

Preliminary matters

12.   Counsel for Mr Howell asked for allegation 3 to read “dishonest or misleading” which were the words used in the Investigation Committee (“IC”) report. The allegation is put in three ways as “inaccurate misleading dishonest” and paragraph 56 of the Board’s report puts it that one or more needs to be proved. The Board’s Counsel asked that the point be put beyond doubt by amending allegation 3 to add the words “one or more of the following” before “inaccurate”.

 

13.   Inaccuracy is a matter of fact. Something misleading could be factually accurate. The first questions for the Committee are whether or not the letter was accurate, and whether the letter was misleading. If so, that misleading wording could be inadvertent, or intentional, and if intentional may or may not be dishonest. Dishonesty, while extensively analysed by lawyers, is a word of everyday meaning, and is the most serious possibility.

 

14.   Having found the facts the Committee must decide whether those facts amount to misconduct, and if so whether or not this is serious enough to amount to upc.

 

15.   In this case there is no reasonable doubt on the questions to be decided by the Committee, as put by the Board, and the amendment proposed by the solicitor for the Board clearly sets out the way the allegation is put in paragraph 56 of the case report.

 

16.   There is no unfairness to Mr Howell as it is not said that the way the case was put has been unclear to him. In so far as the IC report is concerned the Committee did not see that there was a jurisdictional problem in the way the allegation was framed. The Committee did not consider the way the case was opened by the Board’s solicitor was intended to alter the way the case was put by the Board. We amended allegation 3 as asked by the Board’s Counsel.

 

 

 

 

Defence

17.   The defence is set out at length for us in the documentation, but can be put succinctly.

 

18.   The windows and doors were the subject of a separate direct guarantee from the subcontractor to the client. The matter had not been raised by the Complainants for some months and he thought the remedial work had been done. In any event the windows and doors in question were fixed by that subcontractor by October 2014, and so it was correct that this was all in hand.

 

19.   The dispute about the pumps had been discussed, but everyone had decided to “move on”. The contractor was not involved in any work on the sewage tank, so it was outwith Mr Howell’s remit. He had to be impartial so did not get involved. He had been correct not to reverse the final certificate (which in any event was not possible). He had tried to get the parties to agree, but could not make them. His final certificate was left to be effective. The Complainants would claim against the contractor in negligence and the contractor’s insurer would deal with this claim. Subsequently the contractor had successfully sued for the retention and a counterclaim based on the failure of the pumps had not succeeded.

 

20.   It was accepted the email of 23 September 2014 was sent without adequate time to respond, but that it was sent by his colleague and not by him, and that it was his colleague who sent the final certificate, not him, and without his knowledge.

 

21.   The letter of 17 October 2014 was clumsily phrased, and while on rereading it was capable of being misleading was not intended to mislead. Dishonesty was denied. It could not be dishonest – Mr Howell would have had to ask to gain access to inspect so that the Complainants would know he had not inspected recently, so it was not credible that he would say that he had inspected when they would know he had not.

 

Evidence

22.   The Committee perused the report of the Board’s solicitor with accompanying documents running to some 228 pages. The Board called evidence from one of the Complainants, and from their son, who lived in the dwelling.

 

23.   The Committee perused the bundle of 314 pages prepared by Mr Howell’s solicitors. It heard evidence from Mr Howell.

 

24.   All the witnesses were cross examined and the Committee asked some questions of some of the witnesses.

 

Submissions of ARB

25.   Mr Howell was contract administrator under a JCT Minor Works contract. He had prepared a snagging list. He had attended site meetings on 29 April 2014 and 26 June 2014. On the first occasion a snagging list had been prepared. Some of it had been done. Not all, and it was not acceptable for the architect to assume – wrongly – that all had been taken care of. The problems with the sewage pumps were connected with the works undertaken and it was not right for Mr Howell to say that it was a dispute outside the contract. He should not have signed off the final certificate. It was no answer to say that there was a direct guarantee with the installer of the windows and doors, for the contract was with the contractor (which was why he is so called). The email spoke for itself. It was plain English and it was misleading. It was for the Committee to decide what to make of it.

 

Submissions for Mr Howell

26.   The work on the project was largely complete, and practical completion in October 2013 was only a week late in a 6 month project. The windows and doors had a direct guarantee from the supplier and installer of those items, and that supplier had been out to remedy the difficulties. There was no reason to think there was any ongoing problem with them. Entirely sensibly after the 6 month defect period the son of the Complainants liaised with that company as to that work. There was no reason to think there was any problem as the matter had not been raised since a meeting on 26 June 2014. At that meeting it was agreed that most of the list of matters to be dealt with had been attended to. While issuing the certificate was premature, as confirmation should have been obtained, it was correctly issued in fact. The issue with the pumps was not something Mr Howell could solve, and when his suggestion of 50% of the cost of replacement pumps be met by the contractor was not agreed by the contractor, it had been left that the certificate would stand and the Complainants make a claim against the contractor for its insurer to deal with. The County Court claim brought by the contractor had succeeded and the counterclaim that the damage to the pumps was the fault of the contractor had not, so that his judgment had been correct. The email was clumsily drafted, and could be misleading, but the Complainants had not been misled for they wrote back very soon afterwards to say that there had been no inspection. It was obvious that they would know there had been no third inspection after the two of 29 April 2014 and 26 June 2014, and so it was not likely that Mr Howell would intentionally say something that was untrue in the knowledge that the Complainant would know it was not true: whatever else it was it was not dishonest. The matters alleged, properly viewed were not misconduct. If they were it was not serious enough to be upc.

 

Findings of fact

27.   The Complainants were to extend a smaller dwelling in the grounds of their home, occupied by their son and his family.  Mr Howell was the architect. He was assisted by Mr H who was the day to day contact, and by Mr P who was also involved.

 

28.   The work started on 8 July 2013 and practical completion was a week after the contractual date of 18 October 2013.

 

29.   The ground is level, and pumps are needed to drive the sewage to the mains. The dwelling was created from an outbuilding in 2006 when the pumps were installed. There were two pumps which alternated, so that there is a fail safe installation. In the process of the work, those pumps were removed, and were reinstalled at the end of the work.

 

30.   During the course of the work the Complainants noticed builder’s rubble in inspection hatches to the drains, where there were new and uncovered inspection hatches, built as part of the extension to the dwelling. They asked the contractor to remove it and to cover the hatches.

 

31.   The windows and doors were supplied by an independent sub contractor who was contracted to provide a direct guarantee to the Complainants.

 

32.   In February 2014 there was a problem with the pumps. The electrics tripped and could not be made to work. The Complainants got the people who had put them in to inspect. They said the pumps had failed. They got in the people who made the pumps. The people who made the pumps installed new ones. They advised the removal of all builder’s rubble from the tank to avoid catastrophic failure of the newly installed pumps. For this reason the Complainants thought the only reason for the failure of the pumps, which had worked perfectly since 2006 and which were said to be powerful enough for an entire block of flats, to be the rubble in the tank, which they thought could only have got there by reason of the contractor’s negligence.

 

33.   Mr Howell advised them not to raise this with the contractor before the snagging list was fully completed as the cost of the replacement pumps was over £3,000, and this was more than the retention: the contractor might simply walk away from the job.

 

34.   There was a site meeting on 29 April 2014 and the snagging list gone through. Mr P at Mr Howell’s firm dealt with that. Most of that work was done. The issue of the pumps was then raised, at the request of the Complainants. The contractor said that the matter needed more evidence. The Complainants got a report from the installer of the pumps, which said that rubble at the bottom of the tank needed removal to avoid catastrophic failure of the new pumps. The Complainants thought that this strongly indicated that the rubble had caused the failure of the first set of pumps. The contractor queried why new pumps had been installed without rubble being removed, and pointed to electrical problems as being the likely cause of the failure of the first set of pumps, not rubble. Mr Howell decided that he did not have enough information to decide, that it was not work which he would need to certify for payment. He took no further action about the issue.

 

35.   There was a meeting on 26 June 2014 where the remaining snagging matters were discussed. The windows and doors subcontractor was to come out the following Monday.

 

36.   There was no further contact between the Complainants and Mr Howell. The window and door subcontractor came out several times, but the problems were not fully resolved.

 

37.   Following pressure from the contractor to issue the final certificate to release the retention, on 23 September 2014, at 14:34, Mr H emailed the son of the Complainants to ask if they were satisfied that all the defects were now rectified. He did not wait for an answer and issued the final certificate that same afternoon. He did not consult Mr Howell before doing so.

 

38.   The Complainants objected: the windows and doors were still an issue and there was no resolution to issue of the cost of the pumps. They said that they thought Mr Howell negligent and taking the side of the contractor.

 

39.   Mr Howell then wrote the letter of 17 October 2014 stating “In response to your stating that you feel Mitchell Evans have been negligent with regard to the final signing of the defects, at the time of sign off all doors and windows were working properly and were inspected by ourselves.”. The Complainants replied on 21 October 2014 asking when the inspection had been as they were aware of none. Mr Howell did not reply to that email at any time.

 

Discussion and conclusion

40.   The contractual documentation contained the following terms:

 

–       the specification required the contractor to ensure that no builder’s rubble entered the drainage system “Existing drains. Adequately protect all existing drains and ensure that no construction debrief is allowed to enter the existing drainage installation. Seal off all existing drains where required whilst the work is in progress…” [R83] 

 

–      the JCT Minor Works contract contained at clause 5.2 “The Contractor shall be liable for, and shall indemnify the Employer against, any expense, liability, loss, claim or proceedings in respect of any loss, injury or damage whatsoever to any property real or personal… insofar as such loss, injury or damage arises out of or in the course of or by reason of the carrying out of the works and to the extent that the same is due to any negligence, breach of statutory duty, omission or default of the contractor…” [R38]

 

–            Article 6 stated “If any dispute or difference arises under this contract either Party may refer it to adjudication in accordance with clause 7.2”, and Article 7 stated that (with some exceptions) “Any dispute or difference between the parties of any kind whatsoever arising out of or in connection with this contract shall be referred to arbitration …”. [R14], and both parties nominated RIBA to chose an arbitrator.

 

–       Mr Howell was the JCT Minor Works contract administrator

 

–            if after a final certificate is issued a client does not wish to pay it all, the client must give notice within 5 days: clause number 4.5.4 [R36]

 

41.   The windows and doors were the subject of a direct guarantee, which is very useful to the Complainants. The contract is with the contractor and the final certificate should not have been issued before all the contracted work was satisfactory, and that included the subcontracted work. The separate guarantee does not alter that fact.

 

42.   There was no certificate of making good, as required by the JCT contract at 2.12, by which the Complainants could agree that the snagging work had been done.

 

43.   The problem with the pumps was not a matter separate from the contracted work, as the contractor had to remove and reinstall the pumps. If it were not it does not alter the position, given that the contract made the contractor responsible for any damage caused by him.

 

44.   As to allegation 1 a, it is accepted that the final certificate should not have been issued when it was, without further inspection being undertaken. That was Mr H’s doing. This was a failure of supervision: that is a step which should have been approved by Mr Howell. The relevant standard is headed “competence” and the allegation is not of serious professional incompetence but of upc. Failure to supervise can nevertheless be upc, if serious enough.

 

45.   As to allegation 1 b, the lack of dealing with the dispute prior to the issue of the certificate was down to Mr Howell. His advice, subsequent to the final certificate was that they had to pay it, as they had not given notice within 5 days to say they objected to paying by reason of clause 4.5.4 of the JCT Minor Works contract, of which they were unaware because he had not told them of it, even knowing of the dispute. Being impartial and even handed does not mean not advising the client of his or her alternatives. That responsibility remains and Mr Howell did not do so.

 

46.   As to allegation 2, it is accepted that there was no time for a response to the email of 14:34 on 23 September 2014 before the final certificate was given. That was something Mr H did, and it was not acceptable. He should not have assumed that the client was happy, and if he did so assume there was no point in asking the client to confirm that assumption, as the certificate was issued even though it had been asked for. The responsibility for that was Mr Howell’s as contract administrator.

 

47.   Turning to allegation 3, the ARB alleged that Mr Howell was dishonest. The Panel accepted the advice of the legal assessor that this question involves a two stage test. The two stage test is that honest and reasonable people would consider the action of Mr Howell dishonest, and that when Mr Howell wrote that letter he knew that by those standards it was dishonest.

 

48.   The letter of 17 October 2014 can only be read as the Complainants read it. Mr Howell says that he conflated two separate points. First that he genuinely thought that the external doors and windows were working properly at the date of the final certificate and that his firm had undertaken inspections at the end of the maintenance period (April 2014).

 

49.   Mr Howell offers other explanations. He was fairly newly qualified. He had never before faced an accusation of negligence from a client. He said that he dictated his letter rather than typing it himself and failed to check it carefully enough. He was an architect, not a lawyer, and his phraseology should not be judged by the standards of lawyers.

 

50.   It is not possible to read that letter as conflating the two separate points. The language is not ambiguous as Counsel submitted in his behalf. Rather, Mr Howells assertion is that he did not mean to say what in fact he said.

 

51.   The Committee did not find the explanations credible. Mr Howell said that he was newly qualified, but four years since qualification meant that he had considerable experience. In any event, writing accurate letters is unrelated to architectural experience. He had never faced such an allegation before, and for that reason agreed that he had taken great care in considering what he should do next. The letter is not an ill considered swiftly dictated informal communication, but a considered response to an email which, over a paragraph, set out the client’s dissatisfaction. It is not credible that he would not have checked the letter sent in response. He signed it, and he thought it was an important letter. He read it before he signed it. He said that he did not appreciate that the meaning was as plainly it is. This is not credible, for it is simple English. The assertion that Mr Howell is in some way not to be judged by lawyers’ linguistic standards is not convincing, for this is a simple sentence. It was inaccurate.

 

52.   The Committee considered carefully Mr Howell’s testimonials speaking of his professionalism. Mr Howell has an unblemished record. The Committee has taken full note of the Clerk’s advice that propensity to be dishonest is a relevant factor, and there is none in Mr Howell’s case.

 

53.   The letter of 17 October 2014 has to be seen in the context. The email from the Complainants of 14 October 2014 was the reason the whole of this letter was written.

 

54. That email stated “From your responses to this issue so far, it clearly shows that Mitchell Evans has been negligent including 

– neglect to read the report when it was first sent and

–      neglect to check that all defects were rectified prior to issuing the final certificate”.

 

54.   A further paragraph set out more detail. The next paragraph stated “In addition, Mitchell Evans has shown clear bias on this issue in your own words or the absence of them including…” (and then five particulars are set out). The letter concluded “We sincerely hope that your next response to this matter is not more excuses.”

 

55.   It is plain that this was a considered response by Mr Howell to this email from the Complainants and was intended to deflect that criticism.

 

56.   We have noted and carefully considered Mr Howell’s evidence that he did not realise that his letter was misleading. This contention is not credible, because on 21 October 2014 the Complainants replied “We received your letter dated 17 October 2014. In there you said “At the time of sign off all doors and windows were working properly and were inspected by ourselves.” Can you tell me the date and time of that inspection please.”

 

57.   Mr Howell replied to that email on 23 October 2014. He did not give the explanation that he now gives now. The Committee must judge the letter of 17 October 2014 at the date it was written.

 

58.   In assessing Mr Howell’s credibility the Committee was also cognisant of other correspondence from Mr Howell at about this time.

 

59.   Mr Howell now accepts the inevitable judgment on the events of 23 September 2014 as to the issue of the final certificate. However, on 06 November 2014 he wrote to the Complainants “Firstly, on deciding whether works have been completed is for the contract administrator to declare if all works are completed. This is to maintain a fair and impartial view. We attended a meeting / walk round on the 26th June and had confirmation from [the contractor] that works were completed following this meeting. We checked with yourselves via email on 23rd September to seek your own confirmation. We received no response, therefore we have no reason to check again and issued the final certificate accordingly.” 

 

60.   This was to defend what is now accepted as indefensible, in terms which were less than straightforward.

 

61.   The fact that there was no inspection would have been known by the Complainants. It is also correct that the letter of 17 October 2014 went on to suggest a further meeting. But the fact remains that the whole point of Mr Howell writing this misleading letter was to deflect an allegation of negligence made in an email that had concluded that the Complainants did not want further excuses. It was deliberately misleading.

 

62.   The Committee’s conclusion is that by the standards of ordinary people this was dishonest. Mr Howell’s standards of honesty are no different to anyone else’s and the Committee is satisfied that the Board has, to the required civil standard, proved dishonesty. Mr Howell asserted forcefully that he is an honest man. The Committee sees no reason to disagree with that broad precept, but on this occasion he did a dishonest thing.

 

63.   Accordingly all 3 allegations are proved.

 

64.   Allegation 1a is not upc – the sub contractor had been attending site to honour their guarantee, with arrangements made direct with the Complainants and it was nearly a year since practical completion, with all four seasons having passed for the building to settle. It should have been checked, but failure to do so is not serious enough to be upc

 

65.   Allegation 1b is upc. Mr Howell was the contract administrator. He was entirely correct in saying that he could not make people agree where there was a disagreement. He was entirely correct not to make a deduction from the final certification if he was uncertain as to the evidence.

 

66.   What was not correct was him to wash his hands of the matter, which is what he did. He indicated that it was to be left that the Complainants would bring a claim against the contractor, so that the contractor’s insurers would deal with it. This was the position determined by the contractor. The Complainants did not want this and did not know that they had any alternative. They did not want to go down that route. The JCT contract clearly provided at Article 7 that “any dispute of any kind whatsoever arising out of or in connection with the contract shall be referred to arbitration”“Shall” means that this is not optional. The contractor could not refuse. Article 7 was specifically stated to apply, and the arbitrator was to be nominated by RIBA. The parties could have agreed on their own mediator if they had wished. Mr Howell did not make any effort to deal with this, as was his obligation as a contract administrator.

 

67.   The seriousness of 1 b was compounded by Mr Howell’s actions after the final certificate was issued. It was his assistant who sent out the final certificate. Counsel pointed out that the certificate contains in very small print at its foot a note “The Employer’s attention should be drawn to the necessity of giving the appropriate written notice if he is not prepared to make the above payment or if he wishes to withhold or deduct any amount from the amount stated on this certificate.” This is, of course, directed to the contract administrator. It was Mr Howell who should have drawn the attention of the Complainants to this provision. It was not done in this case.

 

68.   Mr Howell, in his same letter of 17 October 2014 also referred  to the terms of the contract, and told the Complainants that they had no alternative but to pay, because they had to give the contractor notice of intention not to pay at least five days before the final date for payment, and the reasons why. Mr Howell stated, correctly, that those dates had now passed, and advised them that they should pay the certified sum.

 

69.   What was signally lacking from Mr Howell was advice that the clients could give such a notice, he fully understanding and knowing that this was an unresolved matter for the Complainants.

 

70.   Mr Howell’s evidence to the Committee was that by the time he knew of the issue of the final certificate by his subordinates those five days had already passed. However, when taken to the documentation, he accepted that the Complainants had emailed him on 26 September 2014 (within those 5 days) expressly stating “We are concerned that Mitchell Evans has overlooked the issue with the pumps which were damaged by the builders…” and that he had taken no action. Even as late as this point Mr Howell could still have resolved the issue by the giving of such a notice and triggering arbitration.

 

71.   The Complainants simply should not have been put in the position where they ended up being sued by the contractor for the money certified as due by the final certificate. The ultimate outcome of the County Court case is not to the point. The contract administrator should have attempted to settle the dispute informally (instead of saying that it was outwith his remit), and when that proved impossible implemented the arbitration process set out in the JCT contract. Reference to that might have led to a negotiated solution, or if not to a solution without Court action.

 

72.   It was not appropriate in those circumstances to permit the final certificate to be issued. Mr Howell did not issue it himself, but he was personally supervising the project. It was his responsibility to ensure that the issue was properly dealt with before a final certificate was issued. It was his firm that was the contract administrator.

 

73.   Mr Howell had worked with these contractors for many years. At a meeting on 07 November 2014 the person in the contractors with whom Mr Howell was dealing attended a meeting at which he refused to sit and was hostile to the Complainants. There are emails before the issue of the certificate from the contractor pressing for the final certificate to be issued (perhaps understandably given the practical completion had been almost a year earlier). Given a forceful contractor, with whom the architect had a long-standing relationship, the Committee judges allegation 1 b to be upc. He was not fair and impartial between the parties on this point.

 

74.   The Committee does not consider allegation 2 to amount to upc. The issue of the final certificate was action taken by Mr Howell’s assistant, without Mr Howell’s knowledge. The contractor asked for the final certificate, but asked also that the assistant check with the Complainants that all the work was done. The assistant sent the email at 2:34 pm and then issued the certificate the same day. It is not suggested that Mr Howell knew of any of this until later. There is a failing of supervision here, because there should have been in place a process requiring the assistant to check with Mr Howell before sending out the final certificate. However mistakes happen, and not every mistake, even if a systemic failing like this one, is upc.

 

75.   Allegation 3 is self evidently upc.

 

76.   Accordingly the Committee’s decision is that all the factual allegations are made out and matters 1b and 3 are upc.

 

Mitigation

77.   Ms Merchandani spoke in mitigation. We largely agree with what she said. Mr Howell produced many good testimonials. There has been no previous disciplinary finding against Mr Howell.

 

Sanctions

78.   The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence.

 

79.   The Committee has considered the Indicative Sanctions Guidance, and reminded itself that it is guidance, to assist the Committee, which has to make up its own mind on the facts of the individual case. Appearance before this Committee is in itself salutary. The Act does not require the Committee to impose a sanction in every case where a guilty finding is reached, so the Committee may choose to make no disciplinary order.  If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500. Any sanction must be proportionate.

 

80.   In all the particular circumstances of this case we consider that a sanction is appropriate because of the need to declare and uphold professional standards.

 

81.   The Committee identified the following mitigating and aggravating factors:

 

82.   Mitigation – this is a first matter for Mr Howell. This was an aberration. There was no financial gain sought or obtained by him or his firm. There is no evidence of entrenched lack of integrity. There have been efforts to ensure that procedures mean that such a circumstance will not recur. Having considered Mr Howell’s evidence and lengthy cross examination the Committee judges there is little risk to the public of repetition. There are extensive and fulsome testimonials speaking to his character. The Committee considered that the insight and remorse shown by Mr Howell is genuine. The letter of 17 October 2014 did not lead to the Complainants acting to their detriment.

 

83.   Aggravating factors – any finding of dishonesty is serious. There is damage to the reputation of the profession.

 

Conclusion

84.   The matter is too serious for a reprimand. The Committee next considered a penalty order.

 

85.   The Committee considered a penalty order justified. It looked at the criteria for suspension.

 

86.   Reviewing the whole course of the evidence and allegations found proved and to be upc, the Committee considered that interference with the right to practice of Mr Howell was disproportionate. Clearly Mr Howell has learned greatly from this experience. The Committee decided that it would be disproportionate to interfere with Mr Howell’s right to practice.

 

87.   Accordingly the Committee decided to impose a penalty order. Given the limited level of the Committee’s powers, and the findings of the Committee, the penalty order is of £2500 payable within 28 days.

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