Professional Conduct Committee Decisions

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

IN THE MATTER OF

TERESA JANE BLAKELEY formerly JANE FAULKNER (059556J)

on

19, 20, 21 July 2010
14 October 2010
23 January 2011

Held at:

and

ARB
8 Weymouth Street, London
W1W 5BU

Present:

Chair: Mr Michael Williams
PCC Member: Mr Donal Hutchinson
PCC Member: Ms Barbara Saunders

Mr Stephen Battersby appeared as Clerk to the Committee
Mr Iain Miller of Bevan Brittan appeared on behalf of the Board
Ms Susan Lindsey, Counsel appeared on behalf of Ms Blakeley

DECISION

These proceedings arise as a result of the contract for Architectural Services that the Respondent Jane Faulkner entered into with Mr Mark and Dr. Rosemary Geller (subsequently referred to as the complainants).  The work related to the refurbishment and upgrading of the property that they had recently bought known as La Grange, La Rue de Maupertuis, St Mary, Jersey, Channel Islands.  The Board was represented by Mr Iain Miller, and the Respondent was represented by Ms Susan Lindsey, Counsel instructed by Fishburns.

The allegation made on behalf of the Board was that Ms Faulkner was guilty of unacceptable professional conduct evidenced by a series of alleged breaches of the Code of Conduct to which she was obliged to adhere.

The Board alleged that Ms Faulkner had breached the provisions of Standard 11.1, 11.3, 11.4, and 11.5 of the Code as a result of a series of different aspects of conduct during the discharge of her responsibilities whilst working as Architect for the complainants. These breaches are identified and particularised at some length by Mr. Miller on behalf of the Board, at paragraphs 129 to 146 of the introductory submissions dated 29 January 2010. They were dealt with extensively not only in the proceedings themselves, heard over three full days in August of this year but also in the Closing Submissions subsequently prepared on behalf of the Respondent by her Counsel, Ms Lindsey, in documents dated the 27th and 28th of July 2010.

This is a case in which the Professional Conduct Committee has been provided with extensive information. The Board solicitors submitted some 584 pages of documentation, and the Respondent's are some 422 pages of papers (some reduplicating those provided by the ARB, some not) together with a copy of the JCT contract, and a fairly extensive set of plans and working drawings illustrating the development and implementation of the project.

When this is coupled with the detailed evidence of the principal parties involved, it can be readily anticipated that a detailed factual synopsis would be very lengthy indeed. There are however a number of basic events which we perceive to be of importance, and we refer to these below.

The Respondent was first approached by Dr. Geller in September 2005 to undertake the redesign and refurbishment of the house that she and her husband had recently bought in Jersey as a result of her obtaining the post of Medical Officer of Health for Jersey, a position which we were given to understand was analogous to the Chief Medical Officer for England and Wales and one which she understandably describes in her witness statement as "a demanding job".

After several visits and the preparation of an outline brief, the Respondent was retained to undertake the design and supervision of the project. She wrote a detailed letter to the complainants as clients on 12 January 2006, setting out the basis of her terms and conditions. Some photocopied sections of the Architect’s Appointment documents were also supplied with this letter. In evidence it became clear that this document, prepared originally in 1982, had been superseded some time ago.  The attachments included the Foreward Introduction, Part 1 Architect’s Services, and Part 4 Recommended Fees and Expenses.

We note that in the fourth paragraph of the Foreward of this document, there is a section which states:

"the RIBA recommends the use of the Schedule of Services and Fees and the Memorandum of Agreement (samples of which are included in the Architect’s Appointment). Alternatively, letters of agreement may be used provided that these services, responsibilities and the fee basis are fully defined, if the agreement is not comprehensive it may create uncertainties for either or both parties as the project progresses"

At that stage the Respondent did not appear to supply Part 3 of the Architect’s Appointment, the Conditions of Appointment which deals inter alia with the settlement of disputes. Despite the assertion made in her letter of 5 December 2007 to Dr. Geller, we do not think that the evidence supports the Respondent’s claim that this part of the document was supplied at a preliminary stage of their dealings.

As an aside, we should comment that the Appointment document is outdated, and refers to regulatory bodies that preceded the formation of the ARB. It is unnecessary for us to consider the adequacy of the provisions of this part of the document supplied by the Respondent to the Complainants so far as the operation of standard 11.1 of the Code is concerned, since we are satisfied that it was not provided at the material time.

By March 2006 the Respondent had completed a specification. Tenders were sent out with the complainants’ approval in May. As can happen, the initial tenders were dishearteningly high, but after some reduction of the project, the ultimate contractor, K.R. Le Marquand and Co. Limited provided a revised quotation of £100,626 on 29 July 2006. This was accepted in early August and thereafter a revised specification was prepared. This provided that work was to start on the 7 August 2006 and was to be completed by 27 November of the same year. The pre-contract meeting took place on 3 August 2006, and all parties were present. From this the complainants would have been aware not only of the contract price, but also timescales, and of the quantum of liquidated damages for delay -- which had then been set at a rate of £2000 a week. The subsequent reduction to £1500 per week, when the JCT contract was eventually sent to the complainants for signature in December 2006, does not appear to us to have been satisfactorily explained and confirmed in writing by the Respondent to her clients.

Throughout the remainder of the year the refurbishment work progressed. Initially the working relationship between Dr. Geller and the Respondent was good, partly attributable perhaps to the local scale of the commercial scene in Jersey, and partly to the social skills of the various parties. It appears to have extended to suggestions as to furnishings and curtains for the house, and for children's wear and the like. Dr Geller in her professional life undoubtedly has a high level of administrative skill which may have had an impact on the nature of the information and the documentation that the Respondent provided to the clients as the project unfolded.

With the complainants’ knowledge, the Respondent instructed the appointed Quantity Surveyor, Gerard McCarthy, to attend most of the meetings at which she would otherwise have had to be present. This was caused by pressure of work. Though there was some question over how these fees were dealt with, it appears that the Respondent sought to incorporate that part of Mr McCarthy's fees which covered his work as her agent within her own overall costs.

Interim valuations were duly prepared (no 1 on 2 October 2006; no 2, wrongly identified as no 3 on 2 November 2006). The third valuation was provided by Mr McCarthy on 22 November 2006 and was for £22,935.05. By that stage the variations had become significant and the Respondent sought to identify these, reconcile them with the omissions and recalculate the 10% contingency fee. The exercise was recorded in an e-mail sent to Mr McCarthy on 23 November 2006. The complainants were notified of the valuation and of the necessity for extending the contract period, but were not supplied with a copy of the e-mail of 23 November 2006 to the Quantity Surveyor.

The fourth valuation was provided to the complainants on 22 January 2007 and the fifth reached them on 27 April 2007. However the accompanying e-mail which the complainants also received made it clear that the overall contract price had risen substantially. The complainants were concerned and a meeting between the Respondent and the complainant was arranged for 12 May 2007.

Neither the documentation nor the evidence adduced at the PCC hearing centred on the reasons for this increase, since the function of our adjudication is to consider alleged breaches of the Code of Conduct, and not to determine the contractual obligations of the parties. Nevertheless it might be germane to remark on a couple of aspects of the manner in which this contract was conducted which do appear to impact upon the Code.

It was clear from the evidence that there were a number of items of work which Dr. Geller never regarded as being included in the contract, but which would have impacted upon the overall cost, and the work to be undertaken by the Contractor. The installation of kitchen units, and possibly some of the bathroom plumbing, was apparently not within the original specification. This was therefore something which Dr. Geller expected, and presumably did, supervise and control. The contractor and its site manager were certainly anxious to ensure that there was no loss sustained by the variations that were undertaken. Some of these were caused by decisions made by the complainants; some by the need for more preparation work where the structure of the property was less robust or ready for repair or redecoration than originally anticipated.

Given the abilities of the complainants, it is perhaps surprising that they did not readily appreciate that the provision of direct instructions to the contractor’s site manager, which it appears took place without any notification to the Respondent on a significant number of occasions, would have had an impact both on the contract price, the timescale and also upon the architectural fees which the Respondent would ultimately charge given that these were calculated on a percentage basis.

Conversely the Respondent may have allowed a situation to develop where she knew or ought reasonably to have known that she was not fully au fait with the work which the contractor was being authorised to do and thus the costs being incurred.

The Respondent's reply dated 21 May 2007 to the complainant's request for details of the expenditure to which the contingency was attributable, is revealing:
"… a vast question in itself. With the extent of variations ultimately issued for the first time at the end of November by the QS, and the Contractor, I will leave it for them to confirm in which order each variation was carried out from the commencement of the contract in August -- out of my hands I'm afraid as was not advised on ££s"

As part of that same correspondence the Respondent also said:
"I am going to request a statement from both QS and Contractor as to why the variations to the contract were not confirmed from the start ie day 1 on a weekly basis given the extent of variations to these works. It is unacceptable to both architect and yourselves as clients… as architect I was very much oblivious to these sums for what amounts to near four months of the contract. The confusion thereafter is exacerbated by further variations to the west wing additions (the contractor now confirms as the time spent on Builders work and electrical work to the West Wing) indeed not confirmed to myself prior to carrying out"

She also drafted an e-mail for the QS which she sent to the complainants for prior approval on 22 May 2007, one section of which included the following:

"… as QS for the client on the works, and my Agent for these site meetings, the question needs to be asked did you request during/after each site meeting that "all" variations need to be priced by the contractor and a regular list be clarified from the contractor with prices for each and every item that arose and prior to each and every item being implemented"

Finally on this point, it should be noted that although the above admissions by the Respondent are those upon which the solicitor acting for the Board relies most heavily, there is a plethora of correspondence and communication between the parties over the question of supervision of the contractor and analogous admissions and explanations made by the Respondent; we refer by way of an example to her letter of 15 May 2007 to the complainants.

While the lack of this information may well explain some of the delays that occurred before the Respondent was in a position to prepare the Final Account, it is, in the view of the PCC, a factor which must be taken into account in deciding whether the Respondent was in a position to discharge her duties in compliance with Standard 11.3 of the Code.

From this point onwards it would seem that the relationship between the parties and their contractual dealings deteriorated. The complainants instructed a firm of solicitors called Walkers to seek clarification on various issues. In turn, the Respondent instructed her own solicitors Hanson Renouf. A lively exchange of legal points took place. It was however insufficient to resolve the problems that had arisen.  The position was made rather worse by the contractor threatening to invoke its rights to institute arbitration proceedings under the JCT contract, and indeed by issuing a Dispute Notice at the beginning of July 2007.

Very possibly neither Respondent nor complainants had found themselves in quite this position previously. Their reactions did not always help to ameliorate the situation. The Respondent maintained in a letter of 25 May 2007 to the complainants that she was postponing her role as architect of the project. The complainants instructed the QS not to undertake any further work, thereby impeding the mechanism for clarifying the unanticipated expenditure. In practice the Respondent appears to have remained involved in the administration of the project, and the complainants fairly quickly countermanded their instructions to the QS in a letter dated 23 August 2007. Although both actions may have been understandable, only the Respondent’s is subject to the Architects Code.

Her actions and her subsequent indication that she was proposing to raise additional and significant fees on an hourly basis for resolving these outstanding troublesome issues, needs to be seen in the light of the absence of the full information in the original retainer letter at 12 January 2006.

In the context of this deteriorating relationship it is worth noting one further point in understanding the impact on the original contract price.  It is clear from the complainants’ evidence that they expected that the ultimate price that they would have to pay the contractor would be affected considerably (and from their view point, favourably) by the possibility of their enforcing the liquidated damages clause in the contract. We have already commented upon the apparent lack of communication that occurred between the Respondent and her clients when Ms Faulkner decided that in drafting the JCT contract, the weekly figure should be reduced from £2000 to £1500. The explanation given was that the scope of the contract had reduced, so consequently the penalties should be reduced correspondingly.

We recognise that this can be a difficult area in a client/architect relationship. It is incumbent upon the architect to act in an objective and quasi judicial manner when dealing with the contractor’s request for extensions of time, (and thus the concomitant reductions in any liquidated damages penalty). The complainants took issue with the fact that they were not consulted before such decisions were made. Whilst we doubt whether they are entitled to do so if consultation presupposes involvement in the decision-making process, we do believe that they were entitled to be informed and given a full and clear explanation as to why such extensions were granted.

The Respondent wrote a fairly full letter to the complainants on 24 November 2006 explaining her reasons for granting an initial extension of time. Further extensions were later provided as shown in the Respondent's e-mail to the contractor’s site agent Bill Jocelyn dated 20 February 2007 and the subsequent and retrospective extension granted by letter to the contractors on 10 September 2007. The extent of the Respondent’s liaison with and explanation to the complainants for these extensions, which did impact on their overall contractual liability, is far less clear.

During the course of the proceedings, two legal issues arose as a result of the facts of the case and the evidence led.  One related to the question of whether the commercial practices and procedures that operated in Jersey were different from those of the rest of the UK, and if so whether they would affect the way in which the Architects Code should be interpreted in respect of the actions of architects practising in Jersey. The other matter turned on the question of the extent (if at all) to which the nature and capabilities of the client affected the level of service that the architect was obliged to offer. These matters were addressed as part of the Closing Submissions provided by the lawyers acting for each party shortly after the conclusion of the oral hearing.

We can deal with both these matters succinctly. We do not think that the environment in which the Respondent practices in Jersey means that she has different professional duties from those of her architectural colleagues elsewhere. No persuasive evidence was provided to substantiate such a contention. It would be very difficult for clients if their architects had different professional obligations depending upon the locality in which they worked. We do not consider the proposition to be supported by fact or by logic. We consider that all architects are subject to the same professional obligations as set out under statute and their Code and Standards of Conduct and Practice. We have dealt with the case on this basis.

We turn now to the second matter which was considered, namely whether the architect has different obligations for different clients. There is of course an obligation on the part of an architect to ensure to the best of his ability that the client understands the nature of the work that is being undertaken on his behalf. To pursue the example cited by the Respondent’s solicitor Mr John Weevil in his final e-mail to Simon Howard at the ARB dated 2 August 2010, the mere provision of written terms and conditions may be insufficient to discharge an architect's responsibilities under standard 11.1 where the client has specific disabilities such as blindness. In this case however, it appears to us that the Respondent seeks to argue that because Dr. Geller was obviously a knowledgeable professional herself (albeit in an entirely different field) it was reasonable to assume that she would be able to interpret and understand the financial implications of the considerable volume of documentation with which she was supplied at various stages of the contract. We are not persuaded by this argument. The evidence suggests that the Respondent did not seek adequately to explain the implications of the papers provided, nor to point out their impact on the overall contract price. Many of the items provided were of importance in the administration of the contract. Doubtless they were fully comprehensible to contractor and building professional alike. That does not mean that even the most able lay clients could understand fully. Dr. Geller maintained that she did not, and the Respondent was not able to refute this contention.

We have set out above our analysis of what we consider to be some of the most important aspects of the evidence that we have heard, and sought to address the specific legal points that arose as a result of this evidence. On the basis of this analysis, we now turn to a consideration of the specific allegations that Mr. Miller identified in the Respondent’s conduct of the case which he argues constitute breaches of the Code of sufficient seriousness (to use the criterion of Collins J. in Vranicki) to constitute unacceptable professional conduct.

Standard 11.1

We accept the Board’s assertion that the Respondent failed to provide the complainants with (sufficient details of) the fee or method of calculating the works in breach of Standard 11.1 of the Code

Although the Respondent’s letter to the complainants of 12 January 2006 identifies the basis upon which she calculated her fees, she failed to explain how these would be varied by the change in contract value that would inevitably occur. We have noted the presence of the graph and other mechanisms for fee calculation incorporated in part 4 of the Architect's Appointment. The process of calculating fees from this information is not straightforward, and we are not satisfied in any event that adequate explanation of this mechanism was ever undertaken.
We also believe that the Respondent failed adequately to explain the nature and quantum of additional professional fees (by way of QS and Engineer) for which the complainants would be responsible. Submissions were made on behalf of the Respondent that clause 4.32(d) of the Architects Appointment was sufficient to discharge this responsibility. We question whether such a sub-clause would be sufficient notification to a client. However it is unnecessary to pursue the point, since that same clause refers to the incorporation of other fees and charges for additional specialist professional advice only "with the specific authority of the client", and there is no evidence that any was ever sought or obtained.

Finally on this point, the same Standard 11.1 deals with the requirement for provisions for termination of the contract, for any special provisions for dispute resolution, and for notification of the clients that architects are subject to the disciplinary sanction of the ARB in relation to complaints of unacceptable professional conduct or serious professional incompetence. It is the Professional Conduct Committee’s understanding that the Respondent conceded that she had not supplied any of this information at the relevant time, namely at the outset of the contract for architectural services between the parties. She argued that such an omission did not constitute unacceptable professional conduct. This is not a view that we share.

Standard 11.3

The Board's case here is that the Respondent failed to ensure that appropriate and effective internal procedures were in place, including monitoring and review procedures, and that such omissions were a breach of the requirements of Standard 11.3

There appears to us to be evidence of the Respondent’s seeking to monitor and review the project and of the valuations and other documentation generated on various occasions during its implementation. We also recognise that it would not have been possible for the Respondent to issue architects instructions in respect of work requested of the contractor directly by the clients/complainants. Nonetheless there were a significant number of variations of the original contractual works where we believe the Respondent was aware of the work undertaken. Her explanations for the delay in addressing these are not in our view satisfactory, though it may be that such breaches fall more naturally to be considered under Standard 11.4 -- a requirement to carry out work without undue delay, rather than under 11.3.

Standard 11.4

The Board alleges that the Respondent failed to carry out professional work in accordance with costs limits agreed with the client, as required by Standard 11.4 of the Code. It cites in particular the Respondent's failure to inform the complainants adequately about the fees that they would incur in relation to the professional charges of the QS, the Respondent’s solicitors, and accountants.

We have already expressed our views on the Respondent's failure to explain the full extent of the QS’s fees when considering the breaches of Standard 11.1.   We have in the same section of this decision commented upon the Respondent’s requiring the complainants to meet her own legal fees and our objection to this. We would raise similar objections were the Respondent to have charged the complainants for her own accountant’s fees. Mr Miller on behalf of the Board concedes that the evidence is unclear on the status of these accountancy fees, and on that basis we make no finding.

We are however strongly of the view that the Respondent did lose track of some of the work that was being undertaken on the project. We have already referred to some of the written communications that the Respondent generated in May 2007, which appear to put the matter beyond argument. We also consider that there is clear evidence which shows that the complainants were unaware of the manner in which the costs were increasing. We believe that the Code imposes a duty upon the Respondent to explain these increases, howsoever arising, to the complainants in a clear and timely manner.  In our view the Respondent failed to do so.

We also consider that her failure to explain in writing the impact of the extensions of time granted and the reasons for the granting of such extensions to the contractor, are further and significant breaches of this part of the Code. As with some of the other allegations raised by the Board, the breaches could be seen to relate to more than one principle incorporated in the Code. The Board seeks to place the Respondent’s failure to deal satisfactorily with the changes in the operation of the liquidated damages clause under Standard 11.4. In our view it could equally properly be considered under Standard 11.5. Either way, there is no doubt in our view that the Respondent's conduct in this aspect of the contract was not in compliance with her duties under the Code.

Standard 11.5

The final allegation made against the Respondent is that she failed to keep her clients informed of issues that may have significantly affected the (overall) cost (of the project) as required by Standard 11.5
It is clear from the evidence already referred to in this decision that there were significant periods of time during the contract when the Respondent did not herself understand the full financial impact of the work, including variations, completed by the contractor. During such periods the Respondent would plainly be unable to keep the complainants adequately updated in the change in overall costs. The Respondent was obliged to retain a comprehensive understanding of the costs of the project and to keep the complainants abreast of such changes/increases on a regular basis. We do not consider that she did so.
It is our view that the correct approach to deciding whether the various breaches of the Code are sufficient serious as to constitute unacceptable professional conduct, is to consider the totality of the breaches and not to examine each allegation separately and then decide individually whether the particular breach is of sufficient seriousness to justify such a designation. When considering the entirety of the allegations made (and as indicated above, proved) by the Board, we consider the Respondent’s conduct of this project was in clear breach of a significant number of requirements of the Code. We have no hesitation in saying that these breaches constitute unacceptable professional conduct by the Respondent.

Following written mitigation provided by Ms Blakely (formerly known as Ms Faulkner) the Committee made the following decision on penalty as released on 23 January 2011:

We believe it to be sufficient therefore to say that we viewed the totality of the breaches of the code as constituting a serious infraction.  Together they had a substantial impact upon the client, and overall reflected badly on the profession. We have considered carefully the mitigating factors that have been put forward on the Respondent's behalf by her solicitors, and have taken these into account as appropriate.  We take the view that the maximum penalty of 2500 GBP is the correct penalty in this matter, and we therefore order that the Respondent do pay this to the Board within a period of twenty eight days.

Back