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THE ARCHITECTS REGISTRATION BOARD ARCHITECTS REGISTRATION BOARD PROFESSIONAL CONDUCT COMMITTEE HEARING IN THE MATTER OF DAKERS FLEMING (042653I) on 16 & 17 January 2008 Apex International Hotel Present: Chairman: Mr Peter Verdin
Ms Nicola Hill appeared as Clerk to the Committee
DECISION CHAIRMAN: This is the decision regarding Dakers Fleming. At the Hearing the Architects Registration Board was represented by Mr Jonathan Goodwin. Mr Fleming attended the Hearing and was represented by Mr Charles McGregor. Mr Fleming denied allegation that he was guilty of unacceptable professional conduct in one or more of the following respects: Firstly, that he failed to provide adequate professional and technical competence in respect of a project at Gleneden Mill, Gateside; contrary to Standard 2 of the Architects Code of Conduct. Secondly, that he failed to adequately control the budget relating to the project, contrary to Standard 11.4 and Thirdly, that he failed to keep his client advised of the up to date position of the project, contrary to Standard 11.5. Mr Goodwin’s report alleges that the defendant was unaware of the cost of the bridge structure which he had proposed. We accept that the defendant was unaware at various stages of the cost of building the bridge, but this was not within the province of Mr Fleming. First of all it was not contemplated in the letter of appointment: the bridge was suggested by Mr Fleming as an idea at the first scheme meeting after the initial letter of appointment; and at the first discussion of the bridge Mr Fleming had no hard information relating to the budget. It was an aspiration at this stage and the bridge could have been built in several ways – concrete; steel and wood; and various other manners that have been referred to. At that stage it was clear that a structural engineer would need to be instructed. Mr Angus Armstrong was appointed as that structural engineer. The client, Mr Stewart, opted for a concrete bridge, although Mr Fleming favoured a steel and wood structure. As soon as Mr Armstrong was appointed and Mr Stewart opted for a concrete bridge, Mr Fleming had no control over the bridge itself. He is not a project engineer and the responsibility for the design, and therefore the cost of the bridge, was Mr Armstrong’s. It is hard to see that Mr Fleming could control the engineer, given that there was a contract between Mr Stewart and Mr Armstrong. It is equally hard to see how Mr Fleming could do any meaningful co-ordination with the engineer, particularly given that there was dispute at one stage between Mr Stewart and Mr Armstrong over fees and the day to day input was being exercised by Mr Stewart. There does appear to be a lack of understanding by Mr Stewart, and a false expectation by him of the role and responsibility of an architect. We find as a fact that no budget figure was explicitly provided by Mr Stewart, and we do not consider that the letter of appointment of the architect can be construed in the way argued by the complainant. In this instance we prefer the evidence of Mr Fleming and his wife, which at least is more consistent with the wording relating to the £100,000 in that letter. Mr Fleming chose the figure of £100,000 for the purpose of calculating his charges, and it was derived from papers provided by Mr Street. It was never a budget. With regard to the ordering of the concrete, Mr Fleming appointed the contractors. He had no control over the ordering of the concrete by those contractors – it was their responsibility. The Report states that Mr Fleming was unaware of the cost of his bridge design and when a builder instructed to price the structure, he advised that the bridge alone would cost in the region of £70,000. Having listened to the evidence it is clear that the figure of £70,000 was at best a throwaway remark by a builder, had no substance, and was never relied upon. It is clear that Mr Fleming failed to keep minutes of meetings. Of course there is no obligation for him to do so; however I will come onto that in a minute. With regards to keeping his client informed of the costs, Mr Fleming did fail to notify Mr Stewart of the approximate cost when he produced the outline drawings, and this is a requirement of the Scottish Conditions of Appointment. To put it briefly, Mr Fleming did not follow those conditions of appointment at all in relation to costs and notification of costs. If he had done so, misunderstandings would have been avoided. This really is something which falls under Standard 11.5 of the Code. With regard to the removal of the gable; Mr Fleming did not give instructions for this to be removed, as he had no power to do so. He did advise that it could be taken down before or after the piling, but not during the work. We find that the advice that he gave in that regard was reasonable at the time; he could not have anticipated the subsequent problems that arose. With regard to the delay in getting tenders for the timber kit we find that there was delay and that there was no satisfactory explanation given for it. This is another matter that falls under Standard 11. As far as correspondence with Mr Armstrong is concerned, as we have said, the contract was between Mr Stewart and Mr Armstrong and the breakdown in the relation between the parties was attributable to the dispute over fees between Mr Stewart and Mr Armstrong. On the evidence we find it difficult to attribute responsibility for problems over correspondence between these two parties. So Standard 2 relates to an architect undertaking work within his competence, and as we consider the contract that Mr Fleming undertook was well within his competence, we can find no breach of this Standard. The allegations under Standard 11.4 relate to cost. We have already found that Mr Stewart did not provide a budget. However with regard to the breakdown of costs, we prefer Mr Stewart’s evidence that he was not given the paper relating to this breakdown in the September meeting, and that the many subsequent requests for this document were not answered by Mr Fleming. His evidence is consistent with the subsequent emails which could have easily been responded to. So while we consider that you cannot control a budget when there wasn’t one given, there was a failure by Mr Fleming to give a costs breakdown when it was reasonably requested, and this is a breach of Standard 11.4. As to Standard 11, most of the faults by Mr Fleming fall under this heading and I will summarise them here: failure to keep minutes, failure to notify costs, delay in getting tenders and poor communications – particularly in relation to the breakdown of costs. These are all a failure to manage one’s professional work responsibly and with regard to the interests of the client, which is what Standard 11 is about. It doesn’t follow automatically that a breach of a Standard amounts to unacceptable professional conduct, but we do find that those breaches do, in this case, amount to unacceptable professional conduct and so we find Mr Fleming guilty. --------------------------------------------------------------------------------------------- MITIGATION ON BEHALF OF MR FLEMING --------------------------------------------------------------------------------------------- We have had the opportunity to consider what penalty is appropriate. We are conscious that this was a very difficult project for a number of reasons, and things certainly went wrong due to personality clashes. We have made findings about matters where we considered there has been fault; but we consider that these are at the lower end of unacceptable professional conduct and our decision as to penalty is that you should be issued with a reprimand. Thank you very much. |
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