Professional Conduct Committee Decisions

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

IN THE MATTER OF

MR JOHN ROLAND BISHOP (030819F)

held on

8 December 2011

at
ARB
8 Weymouth Street
London
W1W 5BU

Present:

Mr Julian Weinberg (Chair)
Ms Barbara Saunders (PCC Lay Member)
Ms Judy Carr (PCC Architect Member)

Mr Stephen Battersby (Clerk to the PCC)

Mr Bishop did not attend and was not represented.
Jonathan Goodwin Solicitor Advocate appeared on behalf of the Board.

In this matter, the Board was represented by Mr Jonathan Goodwin. Mr John Bishop was not present and was not represented.
Mr Bishop faces two allegations of unacceptable professional conduct and serious professional incompetence based on eight allegations of fact as set out in the charges.
As a preliminary issue, we are asked to consider the question of service of documents and whether to proceed in the Respondent’s absence. We have heard from Mr Goodwin that the relevant Notice of Hearing and supporting documentation has been served on the Respondent at his registered address in accordance with Rules 6 and 10b of the Professional Conduct Committee Rules. We are satisfied that he has been properly served with the required notice of this hearing. We have therefore gone on to consider whether the case should proceed in his absence.
We have listened carefully to the representations of Mr Goodwin and have accepted the advice of our clerk. The Committee’s attention has been brought to the Acknowledgement of Notice of Hearing form dated 11 October 2011 received from Mr Bishop which has been signed by him. In it, he confirms that he does not intend to appear at this hearing, but that he denies all but one of the allegations. He also denies that his conduct amounts to either unacceptable professional conduct or serious professional incompetence. He also states that he will be legally represented. However he is not represented today.
We have carefully considered all the correspondence presented to us in this matter and in particular, note the contents of Mr Bishop’s letters of 4 May, 21 October, 23 November, 1 and 5 December 2011. In the first of those letters, he states that “if the matter comes to a meeting, perhaps this can be local, as I am 80 years old and do not go up to London”. In his later two letters, he states that he is “not able to come up to London” and that “he is not able to attend the meeting” but gives no reason as to why this is the case. In his letter of 1 December, he states that he would be unable to come up to London due to his health and age but he gives no details of his medical condition and no supporting medical evidence is provided. In his letter of 5 December, he further states that his wife has had a serious accident, adding to his distress. The Committee notes that Mr Bishop does not ask for an adjournment but states that “you will have to take my statements as a response to the complaints”. We have taken into account the Respondent’s age (he is 80 years old), but also note that the Respondent has not produced any medical or other evidence which would suggest that he could not attend today’s hearing, albeit that it would undoubtedly be more convenient if the hearing took place nearer to him.
The Committee has borne in mind that the Respondent’s practice is based in Essex and that any journey to London, in the absence of medical evidence to the contrary, would not be unduly onerous. He has not sought an adjournment of these proceedings or given any other reason why the case should not proceed today. We have exercised the utmost care and caution in reaching our decision, and have carefully considered the overall fairness of the proceedings. We have taken into account the factors to be considered in the decisions in (R v Jones [2001] EWCA Crim 168) and (Brabazon-Drenning v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] HRLR 6). In considering this application, we have balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner.
Having done so, we are satisfied that the Respondent has been given an adequate opportunity to make arrangements to appear before the Committee to argue his case in person and that he has chosen to voluntary absent himself. The Committee saw no evidence that led it to conclude that by adjourning the matter, the Respondent would attend the hearing on any future date. Taking all these factors into account, we have concluded that it is fair and in the interests of justice to hear the case in his absence.
No other preliminary applications have been made.
The allegations in this case arise from two separate complaints made by two complainants, Mr Ruston and Mr Sparrow. In essence, so far as the complaint made by Mr Ruston is concerned, the Respondent was instructed in or around November 2007 to undertake the drawing of plans and to make an application for planning permission and submit a building notice application in relation of a domestic extension to Mr Ruston’s property. It is alleged that:
1. in his letter of appointment, he failed to include all those matters required to be set out by Standard 11.1 of the Code,
2. despite clear instructions having been given that costs were to be agreed prior to work being undertaken, the Respondent carried out work for which he rendered invoices without prior agreement,
3. that the Respondent failed to place the deposit paid by the client into a client account, that the Respondent disclosed confidential information to the complainant’s neighbour without prior consent,
4. that the building regulation application contained inaccurate information regarding tree positions, the foundations depth and the soil stack location and,
5. that the Respondent failed to release plans to which Mr Ruston was entitled.
  
  So far as the complaint made by Mr Sparrow is concerned, it is alleged that:
6. despite only ever being asked to provide a quote for work to be done, the Respondent took it upon himself to carry out work and sought payment for the same,
7. that he showed Mr Sparrow’s property to a client without Mr Sparrow or his family’s knowledge or prior consent.
In reaching its decisions, the Committee has carefully considered all the documentary evidence presented to it in the Report of the Board’s Solicitor together with submissions made by him. The bundle includes statements from the Complainants together with the Respondent’s detailed written responses to the Board, including his additional comments contained in his recent letter of 23 November 2011. The Committee has also carefully considered the live evidence together with the submissions made by both Mr Goodwin and by the Respondent in writing. All the allegations bar one are denied. We note from the response documents received from the Respondent that, whilst contesting the allegations, a number of facts are agreed between the parties, namely:
In respect of the complaint made by Mr Ruston:
- that the Respondent was instructed by the client to act as Architect in relation to the proposed extension,
- that the Respondent did not have a client account,
- that costs were to be agreed prior to work being undertaken,
- that the Respondent spoke to the client’s neighbour without the client’s consent.
In respect of the complaint made by Mr Sparrow:
- that the Respondent was asked to provide a quote for the work to be undertaken on behalf of Mr Sparrow,
- that the Respondent was never retained or instructed by Mr Sparrow and his family to carry out any work at all,
- that the Respondent undertook work and rendered an invoice for the sum of £240 plus VAT, and,
- that the Respondent showed one of his own clients Mr Sparrow’s property without his, or his family’s consent.
We have had regard to both the burden on the Board to prove its case and the standard of proof, namely proof on the balance of probabilities. Our findings are as follows:
Allegation a:

The Committee finds the allegation proved in part. Our reasons are as follows: this allegation relates to the Respondent’s work in connection with the submission of a Building Notice application. It was this work that the Respondent accepted the commission for as stated in his letter of 5 November 2007. The preparation of such a document does not necessitate the preparation of detailed working drawings and / or a specification, as would be the case with a “Full Plans” application. The fact that such work was limited in its extent is reflected in the Respondent’s letter dated 4 January 2008 which shows that the Respondent anticipated carrying out two hours of work on this aspect of the project. This period of time is inconsistent with the preparation of detailed working drawings. In evidence, Mr Ruston accepted that he remained confused about the procedures and the difference between the drawing up of “Full Plans” and the submission of a Building Notice. The Committee has taken account of the fact that in his letter of 28 June 2010, the Respondent stated “I am disappointed that after obtaining the town planning approval, Mr Ruston should brush aside my advice on builders, structural engineers and the building regulations procedure.” The plans were not detailed working drawings and the deficiencies highlighted in Mr Ruston’s email of 13 July 2009 regarding foundation depths and the soil stack location were matters that would have been addressed in detail if the Respondent had been instructed to prepare “Full Plans”. Given these circumstances, the Respondent cannot be said to have failed to perform his work with due skill, care and diligence in this regard.
So far as the Building Regulation submission fee is concerned, it is clear that the Respondent incorrectly calculated the required fee as per Mr Ruston’s email of 13 July. Mr Ruston challenged the Respondent who stood by his understanding. The Respondent has not provided any evidence that this is not correct. In the circumstances, the Committee finds that in respect of this error, the Respondent has failed to perform his work with due skill, care and diligence. The Committee has gone on to consider whether this constitutes serious professional incompetence. This is defined as service which falls short of the standards required of a registered person. The Committee is of the view that for a finding of serious professional incompetence to be made, that the allegation found proved should represent a serious departure from the standard expected. Whilst the Respondent’s error is basic and should clearly have been avoided, the Committee has concluded that it does not constitute serious professional incompetence on its own.
Allegation b:

The Committee finds the allegation not proved. Our reasons are as follows: it is accepted between the parties that the £230 deposit paid by Mr Ruston was not put in a client account as the Respondent did not hold a client account. Having listened carefully to Mr Ruston’s evidence, it is clear that there was some confusion as to whether that sum represented a deposit or a payment on account for work to be done. The fact that that was the case is a matter of some concern to the Committee as the Respondent should have made it clear as to what that payment represented. It may well be that those monies represented client money, but the Committee has noted that the 2002 Code to which to the Respondent was subject at the time, does not place an obligation on the Respondent to hold a client account. The 2010 Code changes that, but at the time, the Respondent was not subject to a requirement to hold a client account. In the absence of such an obligation, the Committee is unable to find this allegation proved.
Allegation c:

The Committee finds this allegation proved. Our reasons are as follows:

The contract between the parties is exhibited at page 4 of the Board’s bundle and is a letter from the Respondent dated 4 November 2007. There was no other contractual documentation between the parties. On the face of it, it is apparent that that document does not provide all the information required to be recorded in order to comply with Standard 11.1 of the Code. That is conceded by the Respondent. Whilst the Committee has seen no evidence that any special provisions for dispute resolution had been agreed between the parties that needed to be recorded in the letter of appointment, the contract plainly did not record the allocation of, or limitations of responsibilities for staff within the Respondent’s firm. Furthermore, it omitted any provisions for termination and further failed to inform the Complainant that Architects are subject to the disciplinary sanction of the Board in relation to complaints of unacceptable professional conduct or serious professional incompetence. The Committee is therefore satisfied that the Respondent has breached of Standard 11.1 of the Code.
Allegation d:

The Committee finds the allegation not proved. Our reasons are as follows: Mr Ruston stated in evidence that he had requested that the plans be returned to him at the end of his retainer and that they had not been sent to him. The Committee has not seen any written evidence of this request. On the 16 November 2011, the Respondent wrote to the Board attaching a statement in which he said “I always returned any document required by Mr Ruston. He had copies of all letters, Town Planning and Building Regulation forms and plans and I never refused to supply any information required.”

Mr Ruston stated in evidence that “he (the Respondent) tried to be helpful and John means well”. This suggests to the Committee that the Respondent would not have acted maliciously or deliberately withheld documentation from a client. The Respondent had not produced detailed working plans for passing to Mr Ruston and as such, and if those were the documents that Mr Ruston was expecting to receive, he could not pass them to him. The Committee has further noted that Mr Ruston stated in evidence that, despite having subsequently taken court proceedings against the Respondent, no order was made for the return of any additional documents. Taking all the above into account, the Committee is not satisfied that, on the balance of probabilities, that the Respondent failed to return to Mr Ruston any documents to which he was entitled.
Allegation e:

The Committee finds the allegation proved. Our reasons are as follows: the Committee has noted that in Mr Ruston’s letter to the Respondent dated 26 November 2007, he stated “as agreed, we would like to proceed with the appointment on the basis that we agree costs up front before the work is undertaken.” That passage was written in bold and highlighted and formed a separate paragraph at the very start of the letter confirming the Respondent’s appointment. The letter went on to state that “I have contacted the roof light company with a request for a quote…”. On 18 December, the Respondent rendered an invoice to Mr and Mrs Ruston for £1200 plus VAT which included a fee for “consultations with Roof Light Specialist” which service Mr Ruston did not require.

In the Respondent’s letter to Mr Ruston dated 4 January 2008, he quoted for 2 hours work for “Estimates, submitting Building Notice”. However, his invoice of 26 March included a fee for 3 hours work in contravention of the agreed terms of the retainer referred to above. The invoice also contained a fee for two hours work for negotiations with a structural engineer, including a visit to his office and supplying plans. This work had also not been agreed in advance.

Accordingly, the Committee finds the allegation proved and that such actions breach Standard 11.5 of the Code.
Allegation f:

The Committee finds the allegation not proved. Our reasons are as follows: The essence of this allegation is that the information disclosed was confidential. It is not disputed that the Respondent spoke to a neighbour. Indeed, he wrote to Mr Ruston on 4 February 2008 confirming that a conversation had taken place regarding the chimney stack.

The Committee cannot be certain as to the exact date when the planning application was made and therefore whether, at the time of the conversation with the neighbour, such information was in the public domain. Whilst the Committee considers that the Respondent would have been well advised to refer the neighbour directly to his client, the Committee cannot be satisfied to the required standard that the information divulged during that conversation was in fact confidential. The Committee would repeat that the onus is on the Board to prove its case and that on the particular facts of this allegation, it has not done so.
Allegation g:

The Committee finds the allegation proved. Our reasons are as follows: Mr Ruston gave clear evidence that he was unhappy with both invoices and that he had sought clarification from the Respondent on a number of points including a breakdown as to how the fees were calculated. The Respondent accepts that it took over three months to provide a breakdown and has admitted in the Acknowledgement of Notice of Hearing form dated 5 October 2011, that he failed to deal with the dispute promptly and the Committee also makes such a finding. As such, the Committee finds that the Respondent’s actions were in breach of Standard 12.

Allegation h:

The Committee finds the allegation proved. Our reasons are as follows: The Committee has heard from Mr Sparrow and has had sight of a great deal of correspondence from him which makes clear it abundantly clear that the Respondent was not instructed to do anything other than provide a quote. Despite this, the Respondent undertook work purportedly on Mr Sparrow’s behalf and rendered an invoice in the sum of £240 plus VAT for the following services:
- taking instructions,
- visits to site,
- purchase of ordnance survey sheet ,
- informal discussion with planning officer and
- advice.
Not only was this work not requested, the Respondent was unequivocally told not to take any steps whatsoever on his behalf. Mr Sparrow stated that he had told this to the Respondent over the phone many times and he had confirmed this in writing to him on four occasions. Notwithstanding the Respondent appeared to have acknowledged in writing that he was not to undertake any work for him, he nevertheless continued to do so. Mr Sparrow acknowledged that the Respondents actions were well-intentioned, that he was respectable and not motivated by malice, nor was he money-grabbing. The Respondent had known and worked for Mr Sparrow’s father in the past on the property. However, Mr Sparrow was quite clear and the Committee accepts that he “just didn’t listen” to his requests to stop doing any work and that that failure caused him immense aggravation. The Respondent’s behaviour in showing a third party Mr Sparrow’s property in these circumstances shows a lack of integrity and judgement and that his behaviour was inconsistent with his professional obligations. Undertaking work directly in contravention of clear instructions not to do so, culminating in the rendering of an invoice for that unwanted work is conduct discreditable to the profession and as such amounts to a breach of Standard 1.
In the light of our other findings of breaches of the Code as set out above, the Committee finds that the Respondent is guilty of unacceptable professional conduct.
In reaching our decision, and in considering whether to impose a sanction, we have had regard to the public interest and that of the Respondent and have taken into account the indicative sanctions guidance. We have had regard to the fact that the Respondent has engaged with the process albeit that he has not attended today’s hearing, and that he has no adverse regulatory findings made against him over a career spanning 40 years. Mr Ruston and Mr Sparrow did not consider the Respondent to be malicious or anything other than well intentioned. The Committee notes that the Respondent’s correspondence was not aggressive in nature.
However, the Committee is neither assisted by the Respondent’s failure to attend today’s hearing to demonstrate what insight he has into his failings or what steps he has taken to address his shortcomings. We are also not assisted by any references or testimonials.
We have first of all considered whether no sanction should be imposed but considered that as the Respondent has been found guilty of a number of breaches of the Code, that it would be inappropriate for that not to be marked by the imposition of a sanction. The Committee has then considered whether to impose a reprimand. As stated above, the Committee has no knowledge as to corrective steps he may have taken and further notes that the Respondent has not expressed any regret for his actions or insight into his failings. In any event, the Committee considers that his conduct, particularly in respect of Mr Sparrow, was too serious to justify the imposition of a reprimand.
The Committee then considered whether to impose a penalty order. Taking into account the indicative sanctions guidance, the Committee considers that this is the appropriate penalty and that the appropriate sum is £1000 which should be paid within 28 days. Such a sanction is proportionate and necessary to protect the consumer and to uphold the reputation of the profession.

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