Vranicki v Architects Registration Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS |
| Judgment Date | 16 March 2007 |
| Neutral Citation | [2007] EWHC 506 (Admin) |
| Date | 16 March 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8300/2005 |
[2007] EWHC 506 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Collins
Case No: CO/8300/2005
Mr D Gwillim ( of Messrs Speechly Bircham LLP) for the Appellant
Mr A Peebles (instructed by Messrs Russell-Cooke) for the Respondents
Hearing date: 15 January 2007
This is an appeal from a decision of the Professional Conduct Committee of the Architects' Registration Board which was given on 15 July 2005. It followed hearings which took place over five days on 17 and 18 February, and 10 and 11 May and 28 June 2005. The charges against the appellant related to her professional work in connection with a relatively minor, in terms of cost, extension to a house in the autumn and winter of 2000. It is to say the least unfortunate that there have been substantial delays both in the matter being dealt with by the Respondents and this appeal being heard. One of the grounds of appeal is based on the delay.
The Architects Act 1997 prohibits anyone from practising as an architect unless he is registered under the Act (s.20). Anyone registered is subject to the disciplinary provisions set out in the Act which means that any alleged misconduct or relevant incompetence is dealt with by the Professional Conduct Committee (PCC) of the Respondent. Section 14 of the Act provides:—
"(1) Where an allegation is made that a registered person is guilty of –
(a) unacceptable professional conduct (that is, conduct which falls short of the standard required of a registered person); or
(b) serious professional incompetence,
or it appears to the Registrar that a person may be so guilty, the case shall be investigated in accordance with rules made by the Board."
There then follow provisions dealing with the steps that have to be taken if a case to answer is found to exist. These require that the PCC serve on the person charged "written notice … outlining the case against him". (s.14(4)(a)). There is also power to make rules of procedure. If any charges are found proved, the PCC may make one of a number of disciplinary orders. These, in order of seriousness, are a reprimand, a penalty order, a suspension order or an erasure order. (S.15(2)).
This appeal is brought pursuant to s.22 of the Act, which provides, so far as material:—
"Any person aggrieved by –
… (c) the making of a disciplinary order in relation to him,
may appeal to the High Court … within 3 months from the date on which notice of the order concerned is served on him; and on an appeal under this section the Court may make any order which appears appropriate, and no appeal shall lie from any decision of the Court on such an appeal."
The appeal is therefore at large and is not limited to errors of law. It falls within CPR 52.11 as varied by paragraph 22.3 of the Practice Direction to CPR 52. This puts the appeal on a par with those from other disciplinary Tribunals such as the GMC. While it is to be a rehearing, in practice the Court will normally rely on the verbatim transcript of the hearing and no evidence will be called. In addition, the Court will be reluctant to interfere with findings of fact unless persuaded that they were not justified by the evidence because they exceeded "the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible" – see per Ward LJ in Assicurazioni General SpA v Arab Insurance Group [2003] 1 W.L.R. 577.
In addition, the Court will recognise the expertise of the PCC. When it comes to setting the standards of professional conduct, the Court will not simply bow to the decision of the PCC, but where that decision is, as is the case in respect of professional competence, based not on principle but on a matter of degree, the Court will be very cautious in differing from the evaluation made by the PCC.
Following a complaint which the Registrar decides should go forward, there is an investigation which leads to a report by the Board solicitor. That report must set out the relevant facts and incorporate "a charge that a Registered person is guilty of unacceptable professional conduct and/or serious professional incompetence, accompanied by a copy of any written statement or other document or plan that it is intended to adduce against him, together with the name and address of any witness whom it is intended to call in person before the Committee and a summary of what he is expected to say": Rule 15(i) of the Investigations Rules. The report and its accompanying documents must be served on the person charged not fewer than twenty working days before the date fixed for the hearing: Rule 6(a)(i) of the PCC Rules. Within 10 working days of receiving the report, the person charged must respond with brief particulars of his defence, a copy of any written statement or other document or plan that he intends to adduce in evidence at the hearing and the name and address of any witness he intends to call together with a summary of what he is expected to say: Rule 7 of the PCC Rules. Rule 11(b) provides:—
"neither party shall, without the consent of the other or the permission of the PCC call a witness or adduce evidence that was not referred to in a notice served on the other before the hearing in accordance with these Rules."
Finally, Rule 19 provides:—
"The PCC shall, upon his written request, provide the defendant as soon as practicable after the hearing with written reasons for its decision."
Section 13(1) of the Act requires the respondents to issue a 'code laying down standards of professional conduct and practice expected of registered persons'. Section 13(4) provides:—
"Failures by a registered person to comply with the provisions of the code –
(a) shall not be taken of itself to constitute unacceptable professional conduct or serious professional incompetence on his part, but
(b) shall be taken into account in any proceedings against him under Section 14."
Apart from the obvious requirements of honesty, integrity and proper care and skill, standard 11 of the code is relevant. This requires architects not to undertake professional work unless the allocation of responsibilities and any limitation of responsibilities are recorded in writing in the terms of the contract between the architect and his client. And 11.5 states:—
"Architects should keep their clients informed of the progress of the work undertaken on their behalf and of any issue which may significantly affect its quality or cost."
In addition to the code, the respondents have issued guidance on what constitutes serious professional incompetence and unacceptable professional conduct. Paragraphs 3.3 and 3.4 read:—
"3.3 What is Serious Professional Incompetence?
Serious professional incompetence is a serious failure to meet the standard of competence required of an architect. Only acts of incompetence that might be considered serious can be considered by the Professional Conduct Committee.
Because the facts and circumstances of each case are different, it is not possible to identify the exact point at which incompetence becomes serious incompetence. But some features of a case make it more likely to be viewed as serious:
• When the consequences are or could be particularly serious – for example, death or injury
• When an architect's standard of competence falls dramatically below that expected
• When an architect knowingly acts or continues to act incompetently, or attempts to cover up incompetence
• When an architect fails to maintain proper records of the terms of engagement, scope of work or fees to be charged, or other matters
• When incompetence is particularly likely to reduce public confidence in registered architects
• When a number of complaints or events, though not serious in themselves, together demonstrate a pattern of incompetence
• When a pattern of incompetence suggests an architect may not act competently in the future
3.4 The Standards of Professional Competence Expected of an Architect
These examples give some idea of the standard of professional competence expected of architects and when the failure to reach it may amount to serious professional incompetence. They offer general guidance only and do not cover every area of professional practice.
The Professional Conduct Committee judges every complaint of serious professional incompetence on its own facts and circumstances."
At paragraph 3.4.2 it is noted that failure to advise on the most appropriate form of standard contract can lead to serious problems, although it is unlikely in itself to amount to serious professional incompetence. Party Wall awards are also referred to and this is stated:—
"It may be an architect's duty to advise on the service of Party Wall Notices. Failing to serve the required notices at the correct time could be considered serious professional incompetence if the consequences were serious, or otherwise might be held to be a contributing factor in conjunction with other failings on the same project."
Accurate and detailed records of the progress of the project and the performance of the contractors must be kept. Failure to do so could contribute towards a finding of serious professional incompetence.
The Act distinguishes between serious professional incompetence and unacceptable professional conduct. However, as must be obvious, there is a considerable overlap between the two and particular acts or omissions could be charged under either head. But in my view the standard applicable should not differ and unless what has been done or not...
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