England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Bristol Civil Justice Centre 2, Redcliff Street, Bristol BS1 6GB
		7 November 2014

Sir Stephen Silber:

Introduction

1. Mr. Michael Woodman-Smith ("the Appellant") brings this appeal under s. 22 (c) of the Architects Act 1997 ("the Act") against a decision of the Professional Conduct Committee ("the PCC") of the Architects Registration Board ("the Board") made on 15 May 2014 by which it held that the Appellant was guilty of unacceptable professional conduct. It then made a disciplinary order against the Appellant in the form of a reprimand. The Appellant challenges both the finding of guilt, and also the sanction imposed on him.
2. The decision of the PCC was a result of a complaint made to the Board on 25 October 2012 about the conduct of the Appellant by Gregg Latchams, solicitors, on behalf of an individual complainant. The complaint related to the services which the Appellant performed after he had accepted an instruction under the Party Wall etc. Act 1996 ("the Party Wall Act") including his failure to enter into a written agreement with his client, who was the complainant, prior to undertaking professional work contrary to standard 4.4 of the Architects Code: Standards of Conduct and Practice 2010 ("the Code").
3. The underlying facts are complex and lengthy, but they are not in dispute in this appeal. The Appellant was notified of the complaint by the PCC on 4 December 2012. He sent detailed responses on 30 and 31 January 2013 before Gregg Latchams sent further detailed comments on 12 March 2013 to which the Appellant responded on 10 April 2013. Following further lengthy correspondence from both the Appellant and Gregg Latchams, an Investigations Panel gave a Preliminary Decision on 6 August 2013 that the matter should be referred to the PCC. The Appellant responded both himself and through his solicitors on 16 September 2013.
4. On 1 November 2013, the Investigations Panel concluded that the Appellant should be referred to the PCC. The allegations referred to the Board of unacceptable professional conduct by the Appellant were that:

"(a) That he failed to enter into a written agreement with his client prior to undertaking professional work contrary to standard 4.4 of the [the Code]; and

(b) That he failed to keep his client informed of any issues which may significantly affect its cost contrary to standard 6.3 of the Code".

5. At all times since he had been instructed by the complainant in the matter which gave rise to the complaint, the Appellant had been a registered architect whose name was on the Register of Architects, but on 31 December 2013 at 08:16 the Appellant emailed the Board stating that:

"I am writing to notify you of my wish to have my name removed from the register. My letter of resignation will follow shortly.

Your confirmation that I may reapply for reinstatement within two years will be appreciated."

6. The Appellant candidly acknowledges that he sought to resign from the Register "with an intention to frustrate the proceedings before the PCC".
7. On the same day at 10:04, the Board replied to the Appellant indicating that it would process his resignation, but a short while later on the same day (at 10:30) a further email was sent by the Board to the Appellant stating that:

"I write with reference to your email earlier today in which you expressed your desire to resign from the Register of Architects. Contrary to the previous statement from Karen Holmes, the Registrar is unable to accept your resignation while there remain outstanding disciplinary proceedings against your name. You will recall that the Board's Solicitor is currently preparing a report for the Professional Conduct Committee and that you will be advised of a hearing date in due course. While those proceedings are on-going your name will be held on the Register."

8. The Appellant has not sought to challenge the decisions first, that his resignation was not accepted; and second, that his name would remain on the Register. It is noteworthy that Ms Karen Holmes, the Interim Registrar of the Board, has recently certified that the Appellant had his name registered on the Registrar of Architects from 13 May 1986 until 31 December 2002, and then from 29 January 2004 to "the present day", which was 23 October 2014. I will have to return in paragraph 12ff below to consider the legal consequences of these developments when I consider the submission made on behalf of the Appellant that the PCC did not have jurisdiction to proceed with the disciplinary proceedings against him as the Appellant was no longer on the Register of architects after he had indicated his wish to have his name removed from the Register on 31 December 2013.
9. This challenge to the jurisdiction of the PCC to hear the disciplinary proceedings was not raised at the time of the hearing before the PCC or indeed until this appeal was under way. So the PCC hearing concerning the Appellant proceeded on 14 and 15 May 2014. The PCC found that the Appellant was guilty of unacceptable professional conduct in relation to the first allegation (under paragraph 4.4 of the Code), but it concluded that the alleged breach of paragraph 6.3 of the Code was not made out and I do not need to say anything more about it. The PCC considered that the appropriate sanction to be imposed on the Appellant in light of its findings and his mitigating factors was a reprimand, which was imposed on the Appellant and that finding is also challenged on this appeal.
10. The appeal of the Appellant is brought under s.22(c) of the Act, which provides that a person aggrieved by a disciplinary order in relation to him may appeal to the High Court, which in the words of s.22 may then "make any order which appears appropriate". The nature of the appeal under s.22(c) of the Act is similar to that of other disciplinary bodies and Collins J observed in relation to an appeals from a decision of the PCC in Vranicki v Architects Registration Board [2007] EWHC 506 (Admin) that:

"2…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 WLR 577".

The Issues

11. The issues raised on this appeal are:

(A) Whether the PCC had no jurisdiction to hear the complaint against the Appellant on the grounds that he had cancelled his registration by written notification on 31 December 2013 as I have explained in paragraph 5 above ("Issue A - The jurisdiction Issue");

(B) Whether the Code (and in particular Standard 4.4 of it) applied to the Appellant's work as a party wall surveyor ("Issue B - The Code Issue");

(C) Whether the PCC erred in finding that the breach of the Code amounted to unacceptable professional conduct ("Issue C - The Unprofessional Conduct Issue"); and

(D) Whether the sanction imposed by the PCC on the Appellant was excessive ("Issue D - The Sanctions Issue").

Issue A-The Jurisdiction Issue

12. As I have explained in paragraph 5 above, the Appellant purported to cancel his registration on 31 December 2013 by indicating to the Board that he "notif(ied) you of my wish to have my name removed from the register". He explained that he did this in order to frustrate the disciplinary proceedings, but he has also stated that it was a protest on his part at the way in which the PCC had handled the complaint against him.
13. It is said by the Appellant's counsel, Mr. Mathew Paul, that the PCC had no jurisdiction to conduct disciplinary proceedings against the Appellant because the jurisdiction under which the PPC can make orders against an architect is based on that person being "a registered person". So the appellant says that the PCC had no jurisdiction to pursue the disciplinary proceedings against him because as a result of his email (which I have quoted in paragraph 5 above) he was no longer a "registered person". The significance of this is that s.14 of the Act, insofar as is relevant, provides with emphasis added that:

"(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 registered person may be so guilty, the case shall be investigated by persons appointed in accordance with rules made by the Board.

(2)Where persons investigating a case under subsection (1) find that a registered person has a case to answer, they shall report their finding to the Professional Conduct Committee".

14. Similarly, it is pointed out that the power of the PPC to make disciplinary orders is dependent on the person against whom the order is made being "a registered person" because s.15 of the Act (insofar as is relevant) provides again with emphasis added that:

"(1) The Professional Conduct Committee may make a disciplinary order in relation to a registered person if—

it is satisfied, after considering his case, that he is guilty of unacceptable professional conduct or serious professional incompetence…"

15. The term "registered person" means a person whose name appears on the register, which in turn means a person entitled to be registered. The case for the appellant is that he was no longer registered as he had resigned on 31 December 2013 and as he had cancelled his resignation.
16. This cancellation is, according to Mr. Paul, of crucial importance because s.3(3) of the Act provides (with emphasis added) that:

"The Registrar shall make any necessary alterations to the Register and, in particular, shall remove from the Register the name of any registered person who has died or has applied in the prescribed manner requesting the removal of his name".

17. It is true that the Act does not specify what is meant by "the prescribed manner" in relation to the request to remove the name of an architect from the Register, nor does it state who is to "prescribe" the manner of removal. So the Appellant's case is that after he had sent his email of 31 December 2013, his name should no longer have been on the Register. As I have explained in paragraph 8 above, the Appellant's name was not removed and still has not been removed from the Register.
18. The response of the Respondent is that the Appellant cannot pursue this contention because this court on appeal does not have jurisdiction because this contention was not raised in front of the PCC. It is true that the Appellant mentioned in his evidence in front of the PCC that he had resigned and then said that "so I'm no longer an architect", but it was not submitted in front of the PCC that it therefore did not have jurisdiction. So Mr. Ben Collins, counsel for the Respondent, submits that this contention cannot be pursued on this appeal. I am unable to agree because the Respondent has not been prejudiced by the fact that the jurisdiction issue was not raised in front of the PCC as it has not, for example, been averred, let alone proved, that the Respondent would have adduced some evidence before the PCC on this issue but did not do so because this jurisdiction issue had not been raised.
19. Mr. Collins then submits that the true position is that the name of the Appellant has remained on the Register, and consequently the PCC had jurisdiction to pursue the disciplinary proceedings against the Appellant. It is noteworthy that s.3 of the Act contains provisions showing the probative relevance of the contents of the Register in particular that:

"(1) The Registrar shall maintain the Register of Architects in which there shall be entered the name of every person entitled to be registered under this Act….

(6)A certificate purporting to be signed by the Registrar which states that a person—

(a) is registered…

(c) was registered on a specified date or during a specified period;

shall be evidence (and, in Scotland, sufficient evidence) of any matter stated".

20. Thus Mr Collins submits that this would prove that the Appellant was "a registered person" at the time of the disciplinary proceedings and that therefore the PCC had jurisdiction to hear the complaint against the Appellant. During the hearing of the appeal, Mr. Paul said that in the light of this submission, he would then seek to challenge by judicial review the decision of the Board to keep the Appellant's name on the Register notwithstanding his request for his name to be removed from the Register, which I have quoted in paragraph 5 above. Mr. Paul very sensibly did not pursue this contention because I suspect that he appreciated that it was far too late to do so as first, a judicial review application must be brought within 3 months of the decision under challenge which in this case was made as long ago as 31 December 2013, and second, no good reason has been given for the delay in making this application. A third obstacle for the Appellant to overcome before he could pursue a judicial review application now is that he would have to show that "granting of the relief sought would not be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration" (see Senior Courts Act 1981 31(6)). This is likely to cause difficulties for the Appellant because the PCC has held an investigation, made a decision and defended an appeal since the time when any judicial review application should have been issued.
21. In any event, even if the Appellant could bring a judicial review claim in spite of the prescribed time period, any such application would have had to overcome many legal obstacles such as that the provisions of s3 (3) of the Act do not state how speedily the Registrar was obliged to remove the name of a person who wishes his or her name to be removed; indeed it is not stated that the Registrar was obliged to remove the name "forthwith". A further difficulty would for the Appellant would be whether he could prevent the PCC from relying on rule 19 of the General Rules which provides that "Removal may be deferred where allegations of unacceptable professional conduct or serious professional incompetence are outstanding". The Appellant has arguments that this provision was not the subject of the requisite consultation and therefore cannot be relied on but the matter is not clear, and I need not and indeed do not decide it.
22. It is unnecessary for me to decide how any such judicial review proceedings might be resolved as they have not actually been brought. So the position is, as I have explained, that the Register shows that the Appellant was a "registered" person at the time of the disciplinary proceedings, and accordingly the PCC had jurisdiction to pursue these disciplinary proceedings. Even if that conclusion is wrong and the Appellant resigned and wished his name to be removed from the Register on 31 December 2013, he waived that resignation and his wish for his name to be removed from the Register first by participating in and contesting the disciplinary proceeding, second by continuing after that date to take all the advantages of being a "registered person", and third by holding himself out after that date as a "registered" person. Indeed he might also be estopped from claiming that he is and was no longer a "registered" person. After all ,his position seems to have been that he was entitled after 31 December 2013 to all the benefits of being "registered" and the Board acted to their detriment by treating him as such. In the light of my conclusions, it is unnecessary for me to reach a conclusion on this .Thus this ground of complaint fails.

Issue B. The Code Issue

23. Mr. Paul contends that the Code, and in particular paragraph 4.4 of it did not apply to the Appellant's work as a party wall surveyor. This is an important submission because the decision of the PCC was based on a breach of this provision. Paragraph 4.4 of the Code provides that:

"You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:

the contracting parties;

the scope of the work;

the fee or method of calculating it;

who will be responsible for what;

any constraints or limitations on the responsibilities of the parties;

the provisions for suspension or termination of the agreement;

a statement that you have adequate and appropriate insurance cover as specified by the Board;

your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration)."

24. It is said that work carried out by the Appellant under the Party Wall Act, which are the basis of the disciplinary proceedings against the Appellant, is very different from the ordinary work of an architect. In consequence, it is contended that the provisions of paragraph 4.4 of the Code are at most guidance, but that they are certainly not mandatory. Mr. Paul stresses that the work done under the Party Wall Act can be undertaken by a large group of professionals and not merely by architects.
25. The Party Wall Act sets out in s.10 a regime for settling disputes between owners of adjoining properties relating to party walls. It provides for the appointment of people who in that Act are called "surveyors" who carry out duties for resolving the disputes but significantly they need not be actual surveyors (s.20). The so-called "surveyor" has to be appointed in writing (s.10 (2)) and there are provisions for more one surveyor to be appointed (s. 10).
26. It is important to note that there are provisions in the Party Wall Act at s.10(13) for the surveyor to make awards of costs (including costs of making an award, costs of inspections and of any other mater arising out of the dispute) to be paid by one or other of the parties. It is said by Mr. Paul that work done under the Party Wall Act is very different from the work done under the standard terms of engagement of an architect, but I fail to see why that means that paragraph 4.4 of the Code cannot apply and no good reason has been put forward to show that this is not so.
27. In essence, the critically important rationale of paragraph 4.4 of the Code is that any person or persons who retain an architect should be informed about the scope of the work that will be done by the architect, the fee or method of calculating it for which they will be liable, what they will be responsible for and other important matters. This information is of crucial importance to the parties, so that in advance of the engagement of the architect the client knows and agrees to these matters. Indeed these are core obligations.
28. Although there are differences between the conventional work of an architect and the work they might do under the Party Wall Act, the client in both cases has a genuine and a crucial interest in knowing what their financial exposure is and what services they will receive in return so that the client can make an informed decision as to whether to engage the architect. There is at least a similar need for the client to know about these matters in the case of an engagement under the Party Wall Act as in a conventional retainer of an architect, not least because the client is unlikely to know much about the mechanics of the Party Wall Act regime. So the core obligation in paragraph 4.4 of the Code must be complied with when a registered architect is acting in a matter concerning the Party Wall Act.
29. No good reason has been put forward to show why this analysis is wrong. It is not disputed that if work done under the Party Wall Act is subject to paragraph 4.4 of the Code, then there can be no challenge to the finding that the Appellant was guilty of a breach of that provision of the Code. So this ground must be rejected.

Issue C-The Unprofessional Conduct Issue.

30. The Appellant contends that the PCC erred in finding that the breach of the Code amounted to unacceptable professional conduct. The PCC recognised correctly "not every shortcoming, or failure to meet the standards expected by the Code, will necessarily give rise to disciplinary proceedings". Indeed s. 13(4) of the Act provides that:

"Failure 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…".

31. In Vranicki (supra), Collins J observed that:

"4…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".

32. I respectfully agree and note that the PCC concluded its discussion of this issue at paragraph 67 of its Reasons by stating that:

"Costs were escalating to a frightening degree, with the client given no information about the basis on which [the Appellant] was working other than his assumption that she knew he would not wish to charge her. This emphasises the seriousness of the allegation, and the importance to both parties of having a written agreement prior to undertaking work".

33. This was a sensible and important observation, which shows why the PCC held, and indeed why it was entitled to hold, that the Appellant's breach of the Code amounted to unacceptable professional conduct. After all, it is vital that prior to the Appellant's engagement, his or her client knows what the Appellant would do and what his exposure was. In any event, the criticism of the conclusion of the PCC fails to succeed by a large margin when taking into account, what I have explained in paragraph 10 was described by Ward LJ as "the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible". Thus this ground of complaint fails.

Issue D-The Sanctions Issue

34. The Appellant contends that it would have sufficed for there to have been solely a finding of unacceptable professional conduct without a sanction being imposed, and so it is said that the PCC erred in then imposing a sanction when there was no need to do so especially as first, his breach was technical; and second, the Appellant had not merely an unblemished record, but he had also provided pro bono assistance to the community in Clifton.
35. I cannot agree that the PCC erred in imposing a reprimand bearing in mind that it took into account the previous good record of the Appellant, his work in preserving and conserving architecture, his undoubted integrity, his absence of financial gain and his sincere interest in his client. The PCC then explained correctly that the purpose of a sanction is not to be punitive, but instead to uphold the reputation of the profession and to protect the public and to ensure that the profession "better understands the importance of professional standards".
36. The PCC then concluded that:

"Failure to provide terms and conditions is not a mere technicality. It is the foundation of all that is done by architects for their clients. It is important, and for the benefit of the architect as well as the client".

37. This clear and sensible conclusion shows why this ground has to be rejected especially as the Judicial Committee of the Privy Council explained in McCoan v General Medical Council [1964] 1 WLR 1107,1113 that:

"In cases of professional misconduct …it would require a very strong case to interfere with sentence …because the Disciplinary Committee are the best possible people for weighing the seriousness of the professional misconduct".

Conclusion

38. This appeal must be dismissed.