THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

IN THE MATTER OF

IBIYAPUYE EKINEH (053715B)

on

2 May 2008

Cliffords Inn Conference Centre
Fetter Lane
London EC4A 1LD

Present:

Chairman:                   Mr Michael Williams
PCC Member              Mrs Christine Mogridge
PCC Member              Mr James Cuthbertson

Miss Nicola Hill appeared as Clerk to the Committee
Mr John Williams of Bankside Law appeared on behalf of the Board
Mr Ekineh attended the hearing and represented himself

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DECISION
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Transcribed by Harry Counsell & Co.
Official Court Reporters
Clifford’s Inn, Fetter Lane. London EC4A 1LD
Tel: 0207 269 0370   Fax: 0207 405 9884

CHARGE

The charge made against the defendant is that he is guilty of unacceptable professional conduct individually or culmatively relation to the following allegations of fact:-

(i)(a)   He failed to deal with a complaint from his client within the timescale set out in Standard 12(4)(a) & (b) of the Code

   (b) He failed to provide confirmation that he was covered by Professional Indemnity Insurance for the work he carried out within the timescale set out in Standard 12(4)(a) & (b) of the Code

(ii)   He failed to maintain adequate and appropriate professional indemnity insurance to cover a claim of negligence brought by his client in breach of Standard 8 of the Code

(iii)      He failed to provide a substantive reply or procure a substantive reply to correspondence from the Board as to whether his professional indemnity insurers are responding to claim against him; promptly and within the timescale set out in Standard 12(4) of the Code

The architect admitted he was guilty of allegations (i)(a) and (iii).

2 May 2008
DECISION

THE CHAIRMAN:  I will start by saying that the Board was represented by Mr Williams of Bankside Law and the defendant, Mr Ekineh, attended the hearing but he was unrepresented and made his own submissions.  At this stage, as I have indicated, we are considering two allegations of breach of the Code made by the Board.  The first is under Section 2(i)(b) of their reports to the Board dated 31 October 2007 and the second comes from the same report and is to be found at paragraph 2(ii).
                        I will deal with each of them individually.  The first of these alleges that Mr Ekineh did not respond to Mr Nielson’s complaint in that he did not provide confirmation that he was covered by professional indemnity insurance for the work carried out within the timescale set out in standard 12.4(a) and (b) of the Code.
                        We have heard from Mr Ekineh that he provided oral evidence of the arrangements generally that he proposed as a result of the problems arisen because the local authority had issued an enforcement notice in respect of building work on the site where he had provided designs for Mr Nielson. That evidence of Mr Ekineh is confirmed in the detailed letter, which the client, Mr Nielson, wrote on 28 July 2004.  This is to be found at page 17 of the bundle of documents supporting the Board’s report. 
                        We have also seen, and this was produced by Mr Ekineh, so it is not in the bundle, that a letter was sent by the solicitors whom his insurers had instructed.  This letter comes from Beachcroft Wansbrough, which is a very well known firm which deals with a substantial number of insurance matters, and was dated 14 July 2004.  It is addressed to Rita Roberts of Country Neutral Insurance Brokers, who are the defendant’s insurance brokers, and one of the paragraphs in that letter confirms the evidence that Mr Ekineh has already given to the effect that when he first spoke to his brokers he was told that he should provide very limited information about his insurance position and in fact should not discuss the question of insurance or not.  Although this letter is slightly later than that conversation which Mr Ekineh had with his brokers, it is very much consistent with that approach and plainly the brokers had experienced the approach which was adopted by the insurers.  I will refer specifically to the paragraph which provides that requirement of non-disclosure.
                        The letter says, ‘At this stage the insured should not disclose their insurers or our involvement in this matter.  This is to prevent a claim being made in the knowledge that insurers may ultimately be there to pay the claim’.
                        So, we have a situation where it is plain that Mr Nielson was adequately informed of the potential solutions to the problems and that there were also reasons why there was no specific dialogue in respect of the insurance, and it is in the light of that evidence that I then turn to a consideration of the Code itself.  So, I will not read out the whole of paragraph 12.4 of the Code.  The basis upon which we have reached our decision, however, is that the charge made against Mr Ekineh in this respect relates exclusively to his failure to respond to Mr Nielson’s complaint in respect of insurance, so that there is no allegation that he failed to address the wider issues which, of course, were a crucial part, or the central part of the problem which had arisen as a result of the enforcement notice and the unsuccessful appeal against it. There is no specific reference to insurance in Clause 12.4.
                        It would seem to us as a committee to be illogical that professional requirements should run counter to obligations which an architect might have to his insurer.  Given, therefore, that there is no specific reference to insurance and the reservation that we have articulated already, we do not find that Mr Ekineh is in breach of Standard 12.4.
                        I turn now to consideration of the other allegation, which the Board has brought and which Mr Ekineh challenges.  That is set out in the same report at paragraph 2(ii) and the allegation is that he, Mr Ekineh, failed to maintain adequate and appropriate professional indemnity insurance to cover a claim for negligence brought by Mr Nielson for work carried out between on or about 17 May 2000 and 22 July 2004 in breach of Standard 8 of the Code.
                        There is no dispute, I think, now that there was an insurance policy operative at the material time which in ordinary circumstances would cover the risks which form the subject matter of Mr Nielson’s complaint.  The sole issue, therefore, is the interpretation of what constitutes adequate and appropriate professional indemnity insurance and Mr Williams was helpful enough to identify this when we sought clarification during his submissions on behalf of the Board in this respect.  If I  understood his arguments correctly, it was paragraph 8.3 specifically that we needed to consider and that the circumstances of this case and the fact, of course, that the insurers ultimately repudiated the policy, meant that there was not adequate and appropriate cover for the work that the architect was undertaking.
                        We do not see how Mr Ekineh can have been expected to foresee that his insurers would seek to repudiate.  It was not, in our view, reasonably foreseeable and whilst in the circumstances of this case it appears that the date for the appropriate notification of the policy according to the insurers or their solicitors was not the date which Mr Ekineh thought was appropriate, unfortunately the power of determining which is the appropriate date subject to litigation by Mr Ekineh, of course, lies with the insurers or their solicitors.  However, Mr Ekineh has given an explanation for why he did what he did and it seems to us that that was not unreasonable in the circumstances. 
                        To adopt the Board’s interpretation here would appear to us to be very harsh and, indeed, contrary to the principle for which the insurance is in place.  For the Board’s interpretation to be correct it would mean by definition that every architect who ever found that his insurers sought to repudiate or avoid in some way some part of the policy so that he, the architect did not have complete cover, would find himself not only in the unfortunate situation of not having insurance cover although he thought he had and had paid for it, but also by definition finding himself in a situation where he was at risk of losing his professional right to practise as well. That does not seem to us on the PCC as something which is either logical nor in the interests of the profession or the public, and we do not think that the interpretation, therefore, placed on Clause 8.3 by Mr Williams is correct.
                        It is regrettable that the defendant did not challenge his insurers or, indeed, get the assistance of his own professional body, and if he had done it may be that these circumstances would have turned out differently. 
                        So, as far as this part of the situation is concerned, Mr Ekineh, we have found in your favour, and the case which has been brought against you by the Board so far as these two charges are concerned has been dismissed.  So, you do not need to talk to us at all about those because there is nothing we think which you have to answer. 
                        However, there are charges which you have admitted, and so you admit that you did not answer Mr Nielson’s letter of complaint and you also admit that you did not answer letters from the Board.   Now, partly to assist us in the overall matters we did allow and, indeed, deliberately explore this problem in a slightly wider context than just looking at the charges which had been brought against you and I think those may assist us in deciding how serious these infractions are and therefore what kind of penalty we will be minded to impose, and I think I can tell you that we view them in the context of less serious rather than more serious matters, and therefore we are not looking to impose any very severe penalties.
                        However, we have not given you an opportunity yet of commenting or seeking to say anything about your failure to reply specifically to Mr Nielson’s letters or to those of the Board, and if there is anything which you would like to say to us about those before we decide what the penalty should be, now is your opportunity to do so.

MR WILLIAMS:  Sir, before Mr Ekineh does that, perhaps I can confirm that on behalf of the Board there are no previous matters known against him.

THE CHAIRMAN:  Thank you very much.

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MR EKINEH SPOKE IN MITIGATION

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THE CHAIRMAN:  Thank you for your explanation, Mr Ekineh. I appreciate that there was a small amount of evidence already about some of your family commitments in Nigeria and we are sorry about those, of course.  We were not aware of the divorce proceedings and we do appreciate how disturbing and destabilising they are for all the family and if you are actually working from home as well that is just an extra turn of the screw.
                        However, I think there is one other thing that we do accept, which is that you properly and regularly ensured that you had insurance and it must be a source of dismay to you and some surprise to us, to be frank, that you seem to have been dealt with in an extraordinarily harsh way by your own insurers in their not accepting responsibility for a claim which seemed to me to be one which you should be entitled to protection from one way or another.
                        However, although the communications both with your client and with the Architects Registration Board, your failure to comply within set periods of time may have some explanation; we live in an age, I am afraid, where it is necessary to have working practices that you do comply with those things and you were in breach of them.  We have to record our concern and the Board’s obligation to ensure that members of the profession do comply with the Code which they signed up to.
                        In those circumstances I think we have to impose a reprimand on you, and that is the penalty which we impose for the two allegations under Section 2(i)(a) and Section 2(iii) of the Board’s report.  Thank you very much.