THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

IN THE MATTER OF

BJORN NILSEN (042051D)

on

25 January & 2 May 2008

Cliffords Inn Conference Centre
Fetter Lane
London EC4A 1LD

Present:

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

Ms Nicola Hill appeared as Clerk to the Committee
Mr John Williams of Bankside Law appeared on behalf of the Board
Mr Nilsen did not attend the Hearing and was not represented

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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 is that the architect is guilty of unacceptable professional conduct, individually or cumulatively, in relation to the following facts:

(i) that he failed to maintain adequate and appropriate professional indemnity insurance from 25 April 2006

(ii) that he failed to provide evidence of his professional indemnity insurance for 2006

(iii) that he failed to provide a reply to correspondence from the Board

(iv) that he failed to maintain adequate and appropriate professional indemnity insurance from 18 April 2007

(v) that he failed to provide evidence of his professional indemnity insurance for 2007

DECISION
25 January 2008

CHAIRMAN: Our committee was today asked to consider five allegations against Mr. Bjorn Norman Nilsen which together represented unacceptable professional conduct as alleged by the solicitor acting for the board contrary to s.14(1)(a) of the Architects Act 1997. 
            The board was represented by Mr. John Williams of Bankside Law and the defendant did not attend.  We were concerned to ensure that there was adequate evidence that he had been properly notified and so additional evidence over and above that which was provided by the reports prepared on behalf of the board by its solicitor was provided and that showed that a full copy of the report and a clear explanatory letter explaining what was going to happen and the implications of the procedure were sent to the defendant at his registered address by the members of staff at the board on 26 November 2007. 
            There were five allegations of unacceptable professional conduct made on behalf of the board and I will not read these out in detail in that they are adequately set out in the report itself, but I will provide a précis.  The first was that the defendant failed to maintain adequate and appropriate professional indemnity insurance for the period from 25 April 2006 essentially for the insurance year 2006 to 2007. 
            The second was, and this was plainly an alternative, that he failed to provide evidence about adequate professional indemnity insurance for the same period at the time.  Both of those allegations represented breach of the Architects Code Standards of Conduct and Practice under paragraph 8, and various sub-sections thereof. 
            The third allegation was that the defendant had failed to respond adequately and promptly to correspondence and requests made on behalf of the board and this extended for periods from 28 April onwards in respect of various correspondence which went on as alleged over a period of several years culminating on 7 June 2007. 
            The fourth allegation was similar in format to the first save that it related to the period when professional indemnity insurance should have been produced from 18 April 2007, and the fifth allegation was the alternative once again that the defendant failed to provide adequate evidence of professional indemnity insurance if he had it.
            We were taken through the evidence in support of those allegations by Mr. Williams and we are satisfied that some of those allegations, as I will refer to below, were adequately proved.  It is not necessary I think for me to make any reference in this judgment to specific items of the documentation which we were taken to and the evidence which they provided of those allegations.  Suffice it to say, however, that we have given careful consideration to them and the submissions made on behalf of the board.
            I have already indicated that the defendant was notified but did not attend, and so plainly there were no evidence submissions or other written representations.  Consequently, we can form no view as to whether there is a defence and, on the basis of the evidence as led, plainly there is not.
            So the findings that we make are that we rely I think on the alternatives, namely failure to produce rather than actual evidence that there is no insurance so that we do not find in favour of the board in respect of allegation 2(i).  We do find in favour of the board in respect of allegation 2(ii), namely that the defendant fails to provide evidence of professional indemnity insurance for the year 2006. 
            We also find in favour of the board in respect of allegation 2(iii).  In passing, we note that there is in fact no evidence to suggest that the defendant had insurance for the years 2004 and 2005 either, but there is no application in respect of insurance for those years and in those circumstances we do not seek to make any finding.
            Sub-paragraph (iv) of paragraph 2 of the board’s case, once again we do not find in favour of the board in respect of this item.  We do, however, find that the defendant failed to provide evidence of professional indemnity insurance for the year 2007 as alleged in (v).
            At this stage we will not make a finding because we wish to discuss the matter further and/or consider issues which arise as to the nature of the finding which we might wish to make which will need consideration on our part and possible guidance from the clerk.
 (Adjourned)
CHAIRMAN:  We have given a good deal of consideration as to the nature of the penalty that we should make in respect of this matter.  It is clear that Mr. Neilson has not responded to the ARB over the questions which have been raised as to his professional indemnity insurance cover or otherwise for a very considerable period of time.  There is correspondence going back as long as April 2004 and there appears to be little, if anything, by way of response from him since that date.
            It is therefore not merely an issue which has been overlooked by an architect with a busy professional practice and appears to be a rather more serious and deliberate failure to discharge his duties to the ARB.
            In those circumstances, we think that the whole gamut of penalties which are available as to us as defined in (ii) of s.15 of the Architects Act needs to be given consideration to.  The most serious of these of course is an erasure order.  Whilst we have made no finding specifically one way or another, we have to make it clear that we are keeping all options open to us.  In those circumstances, we think it only fair that notwithstanding the defendant’s failure to respond either to these proceedings or to any of the previous communications to him that he should be given a further option to attend and we therefore adjourn the final imposition of the penalty to allow him one last opportunity to do so.  We want to make it clear, however, that as and when we come back to consider the matter if there are no representations, either written or on his behalf, we will be keeping open all the options which are set out at available to us by way of disciplinary hearings in the section to which I have already referred.
            What I think I suggest is that the ARB arrange a further hearing immediately.  If the defendant is given notice of that, I take it that when looking at the commitments of the parties involved, and in particular the members of the PCC and the prosecution, that is bound to result in a hearing which will not take place for at least a month and probably more which is I think more than sufficient time for the defendant to either seek advice or to make any representations in whatever format he thinks appropriate. 

DECISION
2 May 2008

THE CHAIRMAN:  We are grateful to the Board’s solicitor for satisfying us as to the question of service on this matter.  It is plain that there has been absolutely no response to the correspondence which the members of the staff of the Board have sent to Mr Nilsen.  Having looked at the original papers prepared and the subsequent communications, we do not think that there is any reasonable basis upon which he can be in any doubt as to the seriousness with which the Board views his failure to satisfy it about his adequate insurance cover.
                        The PCC do not propose to repeat the submissions as to the reasons why professional indemnity insurance is so important and its proper disclosure for the satisfactory working of the Board, the protection of the public and the proper control of the profession because it is set out very clearly in paragraph 5 of the original report made by the Board in respect of this matter and dated October 2007.
                        It is sufficient, however, for us to say that we confirm the views which have been expressed there and elsewhere on behalf of the Board and that as a constituent part of it the PCC do view very seriously an architect’s failure either to have insurance or, in circumstances where we cannot prove a negative, to fail to provide any evidence that he has insurance.

In those circumstances and having considered the matter once again today we do not think that we have any alternative but to order an erasure and that is our finding in this matter.