1. Before I can deliver the substantive judgment, it will be necessary for me to say a few words about the process employed which has led to the hearings of 5 December 2006 and 27 March 2007. The reason for this, is that the Committee has had to decide on applications made not only by the Board’s Solicitor but also by the Defendant. Some of these later applications (to which I shall refer in more detail below) raise questions about the impartiality of members of the Professional Conduct Committee and the process by which they have come to adjudicate upon the matters before them.
The procedure which is employed by the Board and its various constituent elements in deciding whether there is a breach of the Standards of Conduct and Practice to which registered architects have to adhere, is set out in the Investigation Rules and the Professional Conduct Committee Rules. It is unnecessary for me to articulate this part of the procedure in detail. It is sufficient to identify that the Registrar of the Board referred certain aspects of I– S–’s conduct for investigation by the Investigation Committee. They concluded, in accordance with the powers made available to them under Clause 8C of the Investigation Rules that the matter should proceed to the Professional Conduct Committee by way of a report from the Board’s Solicitor.
This was duly undertaken and Mr A T B Rider of Field Fisher Waterhouse prepared a report dated 7 December 2005. This incorporated a charge against I– S– of unacceptable professional conduct.
As a result of that charge, arrangements were made by the Chairman of the Professional Conduct Committee to convene a meeting in accordance with Clause 5A of the Professional Conduct Committee Rules. Originally the entirety of the charge was to be heard by the Professional Conduct Committee and the first date for the hearing was arranged. It was to take place on 29 March 2006.
Shortly before this date I– S– provided the Board with details of his Professional Indemnity Insurance. The information was supplied by the Defendant too close to the trial date to enable the Board and its Solicitor to decide what action they wanted to take as a result of the disclosure. The matter was therefore adjourned.
2. Thereafter, both the Board’s Solicitor and the Defendant himself made interlocutory or preliminary applications and the two hearings of 5 December 2006 and 27 March 2007 have dealt only with those.
3. The first application was made by the Board’s Solicitor in a letter dated 27 June 2006. This was in two parts, the first of which was as follows:
“1. That my report under Rule 8 of the Board’s Solicitor dated 7 December 2005 to the Professional Conduct Committee be withdrawn and that this matter be referred back to the Investigations Committee for further consideration”.
As a matter of record, the second part of this application was of relevance only if the first application was granted. It is not therefore necessary to refer to this in more detail within this Decision.
4. The Defendant’s applications were more complex and were set out in a document dated 30 September 2006. Some of these have been withdrawn, some were no longer germane and some were amended and proceeded with. Rather than itemise them all at length, I attach a copy of the original application. I refer below to the Judgment which the Committee gave in respect of those parts of the application to which the Defendant sought to adhere. However, it might be more convenient if I were to mention here to the amendments which I– S– sought to make to the second of his applications. This was considered at length. It related to alleged bias of a significant number of members of the Professional Conduct Committee.
The original application is plain; the only persons whom the Defendant thought should be precluded from sitting were James Cuthbertson, Christine Mogridge, Barbara Saunders and Peter Verdin. An amendment was sought by way of a letter to the Clerk dated 28 November 2006 and Donal Hutchinson was included in the list.
Latterly the Defendant made an oral application to this Professional Conduct Committee to include Stephen Brookhouse, Angela Deacon, George Oldham and Linda Reed in the list. Leave was granted.
5. The Committee initially considered the application made by the Board’s solicitor. This was the first in time, and given the nature of the application itself, logically demanded attention before those raised by the Defendant. It was refused and our reasons were delivered at the hearing on 5 December last. Although they are recorded in the transcript subsequently produced, it appeared more convenient to incorporate our reasoning verbatim as a matter of record.
“I propose now to give the decision of the Board, and as I indicated earlier, we are proposing to dismiss the application, Mr Rider, that you’ve made on behalf of the Board. Our reasons are these.
The application which you made on behalf of the Board and the Investigating Committee are clearly not positive (sic) posited on the powers that are available to the Registrar and Rule 14 of the investigations rules, and you have made that perfectly clear in your submissions in paragraph 4.2 and following of your skeleton argument of 20th of October, and in particular but not specifically thereafter in paragraphs 4.5 and 4.7.
You have therefore made it clear that you are instructed, that the Board has instructed you as its solicitor, to apply to us for directions under the provisions of Rule 15 subsection C, and that is perfectly plain and clear on the letter of application, which you made on the 27th of June.
We take the view, however, that neither that rule nor any other which has been drawn to our attention, nor section 14 of the Architects Act 1997, which appears to address the process of complaints being brought to the PCC, provide us with specific powers which will allow us to permit a withdrawal, and on that basis we simply do not see that it is open to us to make a decision on the basis of your application and therefore we dismiss that application.”
See transcript: hearing 05.12.06 p17 line 18 to p18 line 16
6. As I have already mentioned, the Defendant’s applications were more extensive. I propose to deal with them in the same order as the Defendant employed himself when he presented his case to the Professional Conduct Committee.
6.1. Applications 3 and 4 (there is a mis-numbering in the document itself); These were withdrawn by the Defendant as a result of the order that the Committee made in respect of the application for withdrawal by the Board’s solicitor.
Application 1; I–
indicated that he was not intending to proceed with that application though he
reserved the right to renew it.
6.3. Application 5; The Committee dismisses this application. We consider that as currently constituted (in accordance with Clause 5 of the Professional Conduct Committee Rules as referred to above) we have no power to bind the Registrar from exercising the powers that he has available to him, nor from remitting such further or fresh matters as he considers appropriate to the Investigation Committee.
This Professional Conduct Committee is seised of and competent to adjudicate only upon those matters which have been referred to it by the Report of the Board Solicitor, together with any interlocutory applications that impact solely and exclusively upon these charges comprised in the report.
We have noted and specifically accept the analysis of our powers which the Board’s Solicitor identifies in paragraph 5.2 of his Skeleton Argument dated 20 October 2006.
6.4. Application 2; Reference has already been made in this Judgment to the limits of the powers of this Professional Conduct Committee. The same analysis applies in consideration of this limb of the Defendant’s application as it does elsewhere.
This Committee’s responsibilities are limited to considering the charges and information incorporated in the Report of the Board’s Solicitor dated 7 December 2005. None of the members of this Committee has fulfilled any of the categories to which the Defendant refers in sub-paragraphs a), b) and c) of application 2, and thus no order is either necessary or appropriate.
For the reasons previously explained, the only persons specified in sub-paragraph d) to whom this Committee can give consideration are Christine Mogridge and Donal Hutchinson. I turn therefore to address that part of application 2 d) relevant in light of this caveat. We agree with the Defendant’s own analysis that the criterion to use when considering issues (as set out in paragraph 14 of his written submissions provided at the hearing on 27 March 2007) is that incorporated in the Judgment of Lord Hope in Porter and another v Magill  1AllER465, where he states that :
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased”
This analysis is of course different from that which I– S– articulated in some of the submissions which he made at the first hearing in December 2006. Pages 65 – 66 of the transcript for example incorporate his suggestion that the Professional Conduct Committee must “sit in the position that [he’s] sitting in”
in order to determine questions of impartiality. We believe that analysis to be flawed. The submissions which we refer to above, and which were made by the Defendant at the second hearing, are matters with which we can agree. We pause only to state the self-evident point that in allegations of bias the test is objective and the initial onus of proof upon the complainant.
Although I– S– made extensive reference to earlier decisions of members of the Professional Conduct Committee, including some in which Ms Mogridge and Mr Hutchinson were involved, he has provided no evidence which would justify an allegation of bias against either of these two individuals; nor has he produced anything which would persuade us that these individuals have ever departed from their duty to evaluate whatever evidence was produced to them on its merits in each decision in which they have been involved. We have already explained that this Committee only has the power to address the argument in relation to Ms Mogridge and Mr Hutchinson. The decisions reached below are therefore restricted to those two individuals.
We assume that the kernel of those assertions is not an attack by the Defendant on the two individuals’ personal conduct but rather an analysis of the judicial process. Presumably therefore he considers that Mrs Mogridge and Mr Hutchinson might not be prepared to reach a different decision in a later case (specifically in respect of I– S–’s case) which might be contrary to previous insurance cases that they have handled, because of their fear that such conduct would undermine their earlier judgments.
The argument put forward appears to us not only to be wholly lacking in evidence, but to incorporate a fundamental misunderstanding of the judicial process and of those who, within the confines of the Professional Conduct Committee and the Architects’ Registration Board at least, take part in it. The members of the Professional Conduct Committee have been chosen on the understanding that their responsibility is to determine issues in a fair-minded and informed way, and upon due consideration of the facts. The mere fact that they have been involved in the determination of an earlier disciplinary hearing relating to the question of professional indemnity insurance does not mean of itself that in any future cases involving similar matters they will be pre-disposed towards a particular outcome.
7. The above in our view adequately provides a determination of the issues that the Defendant has raised in support of his applications. However, we are conscious of the detailed arguments that he has raised and some 500 pages of documentation provided to us, and in addition some 57 pages of explanatory notes which were produced at the second hearing on 27 March and to which we have referred in part above.
We do not believe that it would be useful, nor do we consider it necessary, to address in detail all of the points thus raised by the Defendant, especially since this is in any event only a preliminary hearing.
However, it might be helpful for us to comment on one or two of the principal matters which the Defendant placed special emphasis upon in his submissions.
7.1 We have noted for example his comments on Chilton v Saga Holidays  1AllER841. We consider that he has failed to make the distinction between the case where one of the parties attends the Court or Tribunal, albeit unrepresented, and seeks to articulate his case against an experienced lawyer as an adversary, and one where the party simply decides not to attend the hearing at all.
The demeanour that the Court has to adopt in both circumstances is the same, as set out in the Annie Fox case, namely:
“To hold the scales as evenly as [it can] and to act fairly and judicially in the conduct of the hearing”
and as identified by the Defendant at paragraph 67 of his written submissions. Where his analysis is at fault is in arguing how the Court or Tribunal has to manifest that even-handedness. In the case of the unrepresented party who attends the hearing, it must seek to ensure there is no undue disadvantage against a qualified adversary. That is quite a different proposition from suggesting that a Tribunal should itself seek to discern and articulate submissions which the non-attending party might have relied on. Such an exercise could not in our view be undertaken whilst adhering to the judicial criteria of impartiality that the Defendant has correctly identified in his written submissions and upon which we have commented.
7.2 The other submissions upon which the Defendant sought to address us at length related to the operation and interpretation of Section 13(4) of the Architects Act 1997. His analysis is set out at paragraph 22 and following of his written submissions. It is not an analysis with which we concur, nor do we believe it to be accurate. We consider that the wording of the sub-section is clear and its purpose apparent. Were every breach of the Code to constitute, by definition, an offence under Section 14 of the Architects Act 1997, the Code would not be a framework or guideline to proper professional practice, but an inflexible and unchallengeable set of rules. Professional practice would be greatly inhibited by such a regimen. We do not think that the Act contemplated such an arrangement, nor do we think that it has imposed one. The sub-section actually permits the Committee to take a reasonable, commonsense approach to the conduct which it is called upon to consider, and to determine whether it is of such a nature as to fall within the strictures of Section 14 ibid.
8. For the reasons set out above, we dismiss the applications made by the Defendant.