Defence in the case of ARB v J— L—
Mr J― L―
Until now R― L― and myself have been proceeding with this case in a way that we felt was beneficial to all architects in the UK. As our main preliminary applications questioning the legal validity of ARB's actions against us have been unsuccessful, I now need to concentrate on making the Committee aware primarily of my own case.
I first became registered as an Architect in 1975 after a nine year process at College and in practice which at times was a great struggle to me. The day I had my registration confirmed was the proudest moment of my life up to that point, and I have continued to be immensely proud of being an architect, and of being part of an extremely honourable self-regulating profession.
I have the greatest respect for the ethos of the professional person, and I have always tried to live up to that.
I have been in practice on my own account for 24 years, and during that period no-one to my knowledge has had occasion to complain about my conduct to ARCUK, ARB or the RIBA.
Furthermore, in all that period no Professional Indemnity Insurance company that I have held a policy with has had to pay out one single penny in respect of any claim made on my PII policies.
When ARB first instigated its PII policies, I regarded it as a huge insult to the whole profession and every member of it. Becoming an architect is not something achieved lightly, and I and many others have devoted our lives to it, when in all probability we could have made ourselves much more wealthy by using our talents to pursue other careers. That it is an honourable profession is reflected in the level of complaints against it from the public dealt with by your committee, which I understand, is 2-3 per annum out of a register of 30,000 people. No problem obviously exists. Nevertheless, ARB has found it necessary to invent one.
I quote from my letter to Mr. Vaughan dated 29/10/2002 after the issue was first raised:
“As to my knowledge I have never been reported to ARCUK or ARB by anyone for any reason in 26 years of registration, you can be assured that I take a very dim view indeed of your threat to report me to the Investigation Committee for failing to take an action which I believe is outside your remit as a Registration body to request of me.” And
“I have been in practice under my own name for 20 years, and believe that I have sufficient knowledge and experience to determine for myself the levels of PII appropriate for my practice, and I am satisfied that at present we do have such adequate cover.
May I respectfully suggest that you stop hounding properly qualified and responsible architects on a technicality that comes within their own jurisdiction, and start addressing the real problem which is that 85% of Planning Applications in the UK are submitted by non-architects, and that a substantial percentage of those Applicants probably believe that they are using an architect for this service when in fact they are not. This would be a much better use of scarce funds in order to meet your objective of “Protecting the consumer and safeguarding the reputation of architects”.
I feel exactly the same now, if not more so, three years after that letter was written.
I have refused to complete the Certificate of compliance as a matter of principle from the start of the policy, and ARB has acknowledged this by saying in the Investigations Committee decision “The Committee is aware that [J― L―] challenges the status of the Code of Practice and it accepts that failure to comply with the Code of Conduct does not of itself constitute unacceptable professional conduct“
Despite this, the charge that I face is “Unacceptable professional conduct” Unfortunately, what constitutes this is nowhere clearly defined.
Clause 13 (4) of the Architects Act 1997 says
“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;”
To me the crux of this is the phrase “not be taken of itself ”
Quite clearly that means that there must be some other event or circumstance that occurs as a direct consequence of a lack of compliance with the code by the architect. The most relevant consequence that should trigger disciplinary proceedings is loss or damage to someone or some thing by virtue of an architects act or omission.
The guidelines in the Code of Conduct are in general extremely valid in the day to day running of an architects practice. Most of them, if not followed correctly, could result in loss and damage to a client or other party involved.
Not having Professional Indemnity Insurance is a good example. If things go wrong and the architect makes a mistake which could be covered by the insurance, and is not, it will result in loss and expense due to the architects failure to follow the guidelines. Ditto, for example, the failure to set out your terms and conditions at the commencement of a project.
However, it is simply quite impossible to imagine any loss or expense that could possibly be caused to anyone as a consequence of my failure to tick the box on the Certificate of Compliance.
By no stretch of the imagination can failure to tick the box be construed as “Unacceptable professional Conduct”. The same applies to a failure to respond to correspondence received from the Architects Registration Board, which is the second spurious charge against me. There is nothing in the Code of Conduct, or in any rules made by ARB that requires Architects to answer ARB letters at all, never mind within a specified period.
So what does constitute Unacceptable Professional Conduct? When I returned to the office after last Wednesdays appearance before you I came across this case on the Internet, and I quote.
“a recent example …… was where a client had gone to an architect asking advice on building a house on a plot of land that was for sale. The architect went to the Local Planning Authority and found out from them that they wanted not 1 house but 6 houses on the land, effectively increasing the value of the land six-fold. Instead of informing their client, the architect offered to buy half the land from them in order to make their life easier (financially); they then went and got planning permission for 4 houses on the piece of land they had purchased, and were set for a six-figure profit from that transaction.”
You'd probably know the name of the firm involved if I told you, but you'll never find out anything more about it, nor will any disciplinary proceedings by the ARB or RIBA occur. This is because when the client sued (successfully), part of the settlement deal was a confidentiality clause and a clause requiring that no complaint be made to the professional bodies.
Now that is what I call Unacceptable Professional Conduct, and neither myself nor [R― L―] would ever even contemplate behaving in such an unethical or unprincipled manner, but it is we who are before you, not the architects involved in that case. They will never come before you. Has ARB got its priorities wrong ?– it most surely has.
There is only one charge against me that could possibly have any consequences that could, as a result of which, be considered Unacceptable Professional Conduct, and that is the lack of adequate professional indemnity insurance.
I would now like to discuss the issue of Evidence, or rather the lack of it, on this main charge, the only one of the three, which if true, could result in loss or damage to innocent parties in certain circumstances.
You have confirmed that there exists a burden of proof on ARB. In English Law, the accused is held to be innocent until proven guilty. It is for ARB to prove our guilt, not for us to attend today and produce our Professional Indemnity Insurance Policies to prove our innocence. That is what these cases are about.
I first wrote to Mr. Battersby on this point on May 5th 2005 (items 39 + 40) saying:–
“It is clear from the papers received that the Solicitor Complainant has no evidence in support of this allegation. I would ask you therefore to advise the professional Conduct Committee that this allegation cannot be substantiated and should in consequence be struck out”
I wrote to the Chairman of ARB, Humphrey Lloyd, on this point on 9th September (Items 62 and 63) and have not received a satisfactory response.
In previous letter to Mr. Lloyd dated 31st August 2005 (Item 56), I had pointed out to him the lack of evidence in our cases. I suggested that he should have asked to see the evidence against me in support of the allegation of failing to maintain an appropriate level of professional indemnity insurance. I wrote:
“Had you done so, and consequently having discovered that there is absolutely zero evidence to support this charge, I feel sure that your legal background would have caused you to question the validity of the charge being made against me by the organisation of which you are the head. Where there is a burden of proof on the accuser it is not acceptable merely to make an allegation and ask the accused to refute it. In view of the fact that there is not one single jot of evidence to support or prove this allegation, I feel that the only action open to yourself is to ensure that the case against me is withdrawn immediately as its prosecution totally discredits the Architects Registration Board, and you personally as head of it”
Mr. Lloyd failed to respond constructively to this letter, so I must ask you – how can you proceed with this case when there is absolutely no evidence to support the allegations? And in the unlikely event that I did not have PI Insurance, how could you possibly prove this if I did not admit it? It is not possible to prove a negative.
As it stands I am unwilling, as a matter of principle, to produce evidence of my Professional Indemnity Insurance, and unable, as a matter of fact, to admit guilt.
I pointed this out to Mr. Battersby in my letter to him dated 23rd May 2005, but it fell on stony ground.
“In order to prove that I do not carry Professional Indemnity Insurance, the complainant would have to write to, and receive a negative reply from every single provider of PII in the world, especially as it is widely known that much of the cover provided for architects in the UK is underwritten in China…..it is clear that such a process has not been attempted in my case……….”
“As I know, as does ARB, that there is no evidence whatsoever to prove the charge against me, and in the absence of such evidence, if the burden of proof is on the Complainant in accordance with the above, then the charge is bound to fail and should, in the interests of justice, be withdrawn. A failure to withdraw the charges will involve me in wasted costs. Your jurisdiction as Clerk, it would appear, provides you with the power under Rule 9 to prevent that from happening. If the charge is not withdrawn, then the inference is that, contrary to presenting the evidence which proves my guilt, the Architects Registration Board is inviting me, at great expense to all parties, to attend a hearing in London in order for me to prove my innocence. As the basis of English Law is that the accused is innocent until proven guilty, and in the case mentioned above the PCC have accepted that the Burden of Proof lies upon them, I contend that there cannot legally be any requirement on myself to submit such proof of innocence to the hearing.”
This is exactly what has now happened. Can I expect to receive the fair and normal justice demanded by English Law that we expect on occasions of this seriousness?
So, against Charge 1 – there is no evidence whatsoever, and nothing the Committee has heard or will hear will provide evidence, nor could there be any evidence.
What I would ask the Committee to consider is this: in every item of my correspondence to the Board and its representatives about the evidence in the case, I have always expressed absolute certainty that there is not, nor could there be, any evidence whatsoever against me to uphold the charge that I do not hold an appropriate level of PI Insurance;
Can I ask you now – do you not question how I can be so completely certain of this? And if you do pose this question, is not the answer totally obvious?
I have drawn the picture, but I must ask you to join up the dots.
Without any evidence to support this charge, I cannot believe that a Committee of honourable people will find me guilty of it.
We have repeatedly stated that we do not feel that the PCC is a truly independent body, and you have made it clear that you hold the opposite view. I respect your view, whilst not agreeing with it. However this is not the view of the Architects Registration Board itself as is demonstrated by the Guidance Notes it has published in support of the Code 8 provisions, which says “The Board, acting through its Professional Conduct Committee, will view very seriously any failure by an architect to maintain adequate and appropriate Professional indemnity insurance.”
However, what I can say is that I do trust your integrity and your ability to act impartially, and so I put myself at your mercy.
If you really, honestly and genuinely, believe that I am guilty of Unacceptable Professional Conduct, then you must find me guilty, and I will accept the consequences.
NB. This is an unofficial transcript. the official transcript of the proceedings is available from Harry Counsell & Co.