Leading Counsel’s advice in Case Study 2 (I— S—)
In early September 2007, after a lengthy and unproductive exchange of correspondence with the Clerk, I— S— decided to take formal legal advice. He was advised by David Blunt, QC, in a reasoned opinion directly related to the proceedings, as follows:
“I have come to the conclusion that Section 13(4) provides Mr S— with an obvious and complete defence to the charge against him”.
“Section 14 does not authorise the Registrar to initiate, or the Investigations Committee to report a case to answer in, proceedings against a registered person based only on the admitted fact that despite requests from the Board pursuant to Standard 8 of the Board’s present Code the architect had failed (or had expressly refused) to provide the Board with evidence that he maintained an appropriate level of professional Indemnity Insurance.”
Certain questions concerning section 13(4) were mentioned in paragraph 39 of the Opinion.
With the permission of I— S— and Mr Blunt, AARUK reproduces the Opinion and the Instructions upon which they were based in full, for the information of inquirers and policy-makers who, for whatever reason, are concerned with the propriety of disciplinary proceedings under Part III of the Act.
The PCC had previously held a first preliminary hearing, on an unsuccessful application submitted by the Board’s solicitor that the case be withdrawn, on 5 December 2006. After a resumed preliminary hearing on 27 March 2007, the hearing panel's written decision on an application submitted by I— S— was delivered in the following month. The date which was later appointed for the next resumed hearing was 17-18 September 2007. In the meantime I— S— had felt it necessary to make certain further applications and requests pursuant to the Act and the Board’s Rules, with a view to securing fairness and the avoidance of actual or apparent bias or prejudice or mismanagement of the proceedings or at the hearing.
Certain correspondence occurred in connection with these proceedings in which the chairman of the Professional Conduct Committee, a solicitor who had been nominated under the Act by the President of the Law Society (and who had responsibility for designating the Committee members to form the hearing panel in this case), again showed a disposition to make baseless and scandalous remarks about architects who have found it necessary in their defence to mention manifest failings on the part of the Board on matters occurring in the course of disciplinary proceedings (see previous instance in Case Study 1, decision denouncing R— L—).
Eventually, by the beginning of the week before the date fixed for the hearing, the architect found it necessary to write to the Board’s solicitor, and to send to the Clerk formal notice of three applications.
1. Judicial interpretation relating to Part III, see here
2. Case Study 1, Irregularities and perverse decisions: see Disciplinary Proceedings 10 January 2006; ARB compliant; ARB compliant Part 2.
3./4. Case Study 2: see
3. – Apprehension of a real possibility of bias;
4. – A question of incongruity
5. Legislative intent: see Outside the Statutory Remit.