Professional Conduct Committee Decisions

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

IN THE MATTER OF

MR ROBERT EDMUND FISH (055219D)

held on

11 & 12 July 2011

at
Clifford’s Inn Conference Centre
Fetter Lane London
EC4A 1LD

Present:

Mr Julian Weinberg (Chair)
Mr Stephen Neale (PCC Lay Member)
Mrs Judy Carr (PCC Architect Member)

Mr Stephen Battersby (Clerk to the PCC)

Mr Iain Miller of Bevan Brittan appeared on behalf of the Board

Mr Robert Fish attended in person.

The Charge against the Respondent is that he is guilty of unacceptable professional conduct in that:

1. He acted without integrity and/or in a manner which was inconsistent with his professional obligations and namely contrary to Standard 1 of the Architects Code of Conduct 2002 (“the Code”) in leaving the project prior to issuing a practical completion certificate and/or by informing the Complainants that an incident relating to the project was nothing to do with him;  

2. Contrary to Standard 11.1 of the Code he undertook professional work prior to recording in writing: 

   1. Provisions for termination
   2. Special provisions for dispute resolution
   3. A provision explaining that architects are subject to the disciplinary sanctions of the Board in relation to complaints of unacceptable professional conduct or serious professional incompetence;
3. Failed to carry out professional work without undue delay and/or in accordance with any time scale and cost limits agreed with the client;
4. Failed to keep the Complainants informed of the progress of work undertaken on their behalf and of any issue which may have significantly affected its quality or cost.

DECISION

In this matter, the Board was represented by Mr Iain Miller. Mr Robert Fish was present but was not represented.

Mr Fish faces 1 charge of unacceptable professional conduct based on four allegations of fact as set out in the charges.

No preliminary applications have been made.

The allegations in this case arise from an initial complaint made by Mr and Mrs Evans (“the Complainants”) against the Respondent who at the material time, was practising as an architect at Robert Fish Associates Architects in Beckenham. In 2007, the complainants instructed the Registrant to obtain planning approval and to build a rear ground floor extension to their shop in Beckenham. The objective was to extend the shop and add a flat to the two existing flats which could be let out. The Registrant was to oversee the project. The complainants hoped that the works could be completed as quickly as possible as the complainants would not be letting out either the shop or the existing flats whilst the works were being undertaken. Because of that, the complainants sought a liquidated damages clause in its contract with the builders to financially compensate them in the event of late completion of the building works. The lowest tender for the works was provided by Oak Construction and Design Company Limited (“the contractor”) who were awarded the contract. Its director was a Mr Jim Hickmott. That tender was for initially £120,000 but was subsequently reduced to £110,000. The original estimate of costs given by the Respondent was for £75,000.

It is alleged that the project took longer than expected, not least because the Respondent failed to ensure that the necessary steps were taken to ensure that the various utilities were connected to the building in a timely fashion. Towards the end of the project, due to the ongoing delays and costs issues, the complainants refused to pay Mr Hickmott any further monies. Consequently, he walked off site leaving the works uncompleted. It is alleged that this left the complainants, in the absence of help provided by the Respondent, to deal with matters by themselves. The complainants allege that the builders got heavy handed in seeking payment of their outstanding bill and intimidated them. The Respondent refused to intervene in the dispute. Following direct discussions between the complainants and Mr Hickmott, the works were eventually completed. The Respondent also failed to issue a certificate of practical completion.

In reaching its decisions, the Committee has carefully considered all the documentary evidence presented to it in the Report of the Board’s Solicitor upon which the Board seeks to rely. The bundle includes statements from the Complainants together with the Respondent’s detailed written responses to the allegations. We have also received a letter from the Respondent dated 25 June 2011 together with its enclosures. The Committee has also carefully considered the live evidence given by the complainants, the Respondent and Mr Hickmott on behalf of the Respondent, together with the submissions made by both Mr Miller and the Respondent. All the allegations are denied save for an admission of the factual basis for the allegation concerning a breach of Standard 11 which the Respondent has admitted on the Acknowledgement of Notice of Hearing Form signed by the Respondent and dated the 5 June 2011. The Respondent denies that his conduct in this regard amounts to unacceptable professional conduct. 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 1

The Committee finds the allegation not proved. Our reasons are as follows:

This allegation relates to the conduct of the Respondent at the point in which the relationship between the complainants and the contractor had broken down. Mr Evans, in the light of the time it was taking for the works to be completed, had informed Mr Hickmott that he would hold back £10,000. As a result, Mr Hickmott walked off site in November 2008. The complainants then stated that on the 29 January 2009, they were visited by two men on behalf of the contractor who intimidated them and demanded that £17,226 was paid. They emailed the Respondent informing him of what had happened. It is accepted that the Respondent responded the same day stating that “although you have taken the time to inform us it is nothing to do with us”. It is alleged by the complainants that by his response, the Respondent wanted nothing more to do with the project. It is agreed that no practical completion certificate was issued by the Respondent.

The Committee has considered whether it can be proven that the Respondent did in fact leave the project. Mr Evans stated in evidence that by this point he “didn’t want him involved any more” in the project. He negotiated a settlement directly with Mr Hickmott regarding the completion of the outstanding works and payment terms without reference to the Respondent. In the light of this arrangement, the Respondent was not asked to provide a practical completion certificate. The Respondent stated that given that the complainant and the contractor had sorted matters out between themselves, the need for him to provide a practical completion certificate was rendered unnecessary. Given that the Respondent had been excluded from the project at that stage, the Committee was not satisfied that he had left the project. Given that finding, the Committee has not gone on to consider whether his actions in this regard were lacking in integrity or inconsistent with his professional obligations.

The Committee then considered the allegation in respect of the Respondent’s email stating that the incident in question was “nothing to do with him”. The Respondent stated in evidence, and it was accepted by the Committee, that his comment was intended to reflect his legal position in that the debt dispute with the contractor was contractually a matter between them and not the Respondent. Given the bad feeling between the Respondent and the complainants at this stage, the wording used may well have been open to misinterpretation and might have antagonised the complainant. However, the fact was the debt was a contractual matter between the complainant and the contractor. The Committee notes that far from washing his hands of the problem, he informed the complainant that if the contractor had acted outside the law, then he should take the matter up with the police and suggested that his solicitor would be able to give him further advice. He stated that he had in any event contacted the contractor to discuss the problem and suggested that “the two of you speak and resolve any misunderstanding to complete the works”. In the circumstances, the Committee is not satisfied that the Registrant has acted without integrity or in breach of his professional obligations.

Allegation 2

The Committee finds the allegation proved in part. Our reasons are as follows:

The contract between the Respondent and the complainants is exhibited at pages 2-5 of the Board’s report. 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 admitted by the Respondent. The contract did not record 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. So far as the allegation regarding a failure to record any special provision for dispute resolution, the Committee notes that whilst the Respondent has made an admission in this regard, it cannot be right that this standard is breached unless there has in fact been a special provision for dispute resolution. There has been no evidence received in this case that that was the case here and Mr Miller accepts on behalf of the Board that in the absence of such a condition, the Respondent had not breached the code in respect of this one provision. However in respect of the other unrecorded matters, the Committee is satisfied that the Respondent has breached Standard 11.1 of the Code. We shall address the question of whether such a breach amounts to unacceptable professional conduct later in this decision.

Allegation 3

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

The Board puts its case in this regard on the failure of the Respondent to complete and submit to Thames Water an acceptance of a quotation for works to install an adequate water supply at the premises. Mrs Evans dropped the partially completed form off at the Respondent’s offices on the 5 June 2008. However, on the 2 October 2008, Mrs Evans called Thames Water to see when they would be able to start excavating, only to be told that they had not received the acceptance forms back. In response to questions from the Committee, the Respondent accepted that he had no explanation for his failure to complete and submit the forms. He further accepted that at that stage, he did not know whether any delay in submitting the form would delay the project. The Committee had seen copies of numerous emails from the complainants to the effect that the question of utilities was an important matter for them and needed to be attended to urgently. In the circumstances, the Committee finds that the failure to submit the Thames Water form in a timely fashion was unwarranted and that he acted with undue delay in this regard in breach of Standard 11.4 of the Code.

The Committee then considered whether the Respondent had failed to carry out his professional work in accordance with any time scale and costs limit agreed with the clients. Whilst the complainants indicated that they wished the project to be carried out as quickly as possible (so that once completed, the premises could be let), the Committee has seen no evidence that a time scale for the project was agreed. In the absence of such agreement, the Respondent cannot be found to have breached a time limit.

So far as any costs limit is concerned, the Respondent had not exceeded his professional costs limit with the client as agreed in his initial retainer document dated 8 March 2007. In addition, the Committee has heard no evidence that any costs limit for the building project was agreed with the complainants. In the Respondent’s letter dated 8 March, the Respondent provided a best estimate of costs in the sum of £75,000, but he went on to state that the “actual cost could be higher or lower depending on the actual design”. However, no costs limit was mentioned by the complainant. Mr Evans wrote to the Respondent on 30 March 2008 stating that “now we’re getting some tenders back, I can finally start to get my head around the figures and decide whether it’s economically feasible to press ahead”. Whilst he stated that he was “a bit disappointed” that the lowest quote was nowhere near the initial estimate of £75,000, he did not state at either that stage or at any other time that there was a figure which was not to be exceeded. Again, in the absence of an agreed costs limit, the Respondent cannot be said to have exceeded it.

Allegation 4

The Committee finds the allegation proved in part. Our reasons are as follows:

It is clear from the evidence received, that the complainants contacted the Respondent regularly by email regarding the progress of the project, usually in respect of the situation regarding the installation of utilities at the property. The Committee notes that many of these emails went unanswered. The Respondent accepts that there was no formal system in place for informing clients of progress of their projects and the Committee has not seen any evidence that the Respondent had kept the complainants informed of progress. The Respondent stated that he had made occasional calls to the complainants but has not produced any contemporaneous notes of such calls to support that assertion. The Respondent stated that he was aware that the complainants were in regular contact with the builder and that they therefore were aware what was going on. Mrs Evans confirmed in her evidence that she attended the site twice a week. However, that did not obviate the need for the Respondent to inform the client of progress and that by failing to do so, he has acted in breach of Standard 11.5.

The Committee then considered whether the Respondent had failed to inform the complainants of any issue affecting quality or cost. The Committee finds that he had failed to inform his clients as required. When the Respondent gave his initial estimate on 8 March 2007, it is noted that he confirmed that the actual cost could change depending on the final specification of the building. However, on the 21 June 2007, the Respondent was informed by the council that the design would have to be amended because the plans encroached too much on neighbouring properties. This resulted in the design being changed to a more complex structure which would undoubtedly have impacted on cost. However, the Respondent failed to inform the complainants of this. The Committee notes that the services the Respondent agreed to provide included a clear requirement to provide and update costs estimates during the project.

The Board further alleges that the Respondent failed to advise the complainants of increased structural engineer’s fees. The Respondent in his letter of 8 March 2007 stated that “on average, such costs are only in the order of a few hundred pounds depending upon the complexity of the structure. The more complex the structure and the level of the engineer’s fees would increase”. On the 27 February 2008, Croft Structural Engineers suggested in their quote that the complainants budget for £1375 plus VAT. Such sum would appear to exceed “a few hundred pounds”, but in the view of the Committee, given the overall total cost of the project, cannot be said to be of such an amount that substantially affects the project cost. Furthermore, the Committee finds that such sum reflects the increased complexity of the new structure as warned by the Respondent.

The Board further alleges that by failing to inform the complainants that by agreeing a reduced contract figure of £110,000 from £120,000 with the contractor, that a total of £3000 had been omitted from that total. That sum was made up of a £2000 contingency sum and a further £1000 for a reduced provisional sum for the steel. Mr Evans stated that he believed that those items were still included in the reduced contract sum whereas that was not the case. The Respondent accepted that he had not made this clear to the complainants. The Committee finds that such a failure amounts to a breach of Standard 11.5 of the Code.

Turning to the question of whether the Respondent’s conduct amounts to unacceptable professional conduct, the Committee notes that so far as the allegation in relation to a breach of Standard 11 is concerned, the Respondent accepts that he did not provide the necessary information to the complainants but denies that this failure amounts to unacceptable professional conduct. The Introduction to the Code clearly states that “a failure to follow the guidance of this Code is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect”. The requirements of Standard 11 are such that the information is either provided, or it is not. Failure to provide this information gives rise to doubt and uncertainty and fails to inform clients of their rights in the event of complaints of unacceptable professional conduct or serious professional incompetence. For these reasons, the Committee finds the Respondent’s conduct in breach of Standard 11.1 does amount to unacceptable professional conduct.

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.

MR FISH SPOKE IN MITIGATION

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. We have had regard to the fact that the Respondent has engaged with the process and that he has no adverse regulatory history in a career spanning over 20 years. The Committee has not been assisted by any supportive testimonials but the Committee notes that Mr Hickmott, who gave evidence in support of him, confirmed that he had not experienced similar problems with projects where he was the appointed architect either before or since this incident. He has shown some degree of insight into his failings in that he has recognised that he did not manage this project as well as he should have done. He has changed his standard appointment letter to comply with the Code and acknowledges that all projects require a high standard of communication and documentation to provide a professional architectural service.

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 and considers that this is the appropriate and proportionate sanction to impose in all the circumstances. Such a sanction is necessary to protect the consumer and to uphold the reputation of the profession.

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