Architect erased from register loses Court of Session case challenging decision



Lady Dorrian
Lady Dorrian

A former architect who was erased from the architect’s register for unprofessional conduct has been unsuccessful in his challenge of the decision to remove him in the Court of Session. 

James Thomson argued that the Architect Registration Board had sanctioned him excessively and that he had not received a fair hearing due to proceedings being conducted by videoconference in his absence.

The appeal was heard in the Inner House by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Turnbull and Lord Woolman. The appellant was represented by Melvin-Farr, advocate, and the respondent by Lindsay QC.

Inadequate fireproofing

The conduct for which the appellant was erased from the register related to the construction of a block of flats in Troon in 2014. He had been responsible for checking the quality of building work at the site, carrying out inspections, and issuing the final inspection and professional consultant’s certificates on completion.

A professional complaint was made in 2016 based on allegations that the flats were inadequately soundproofed, for which the ARB’s Investigations Panel determined the appellant had no case to answer. However, in 2018 a further complaint was made based on a lack of fireproofing, which prompted a reconsideration of the case. It was determined that the appellant had a case to answer in respect of either unacceptable professional conduct or serious professional incompetence.

The respondent’s Professional Conduct Committee scheduled a hearing of the case for 30 March 2020. In advance of the hearing the appellant submitted a written acknowledgement of the hearing in which he admitted the facts constituted unacceptable professional conduct but denied incompetence. He sought to have the proceedings sisted until outstanding civil legal proceedings, which themselves had been sisted in 2018 at his request, had been concluded.

As a result of the pandemic the hearing was postponed to 17 August 2020, with the intention that it be conducted by videoconference. A further postponement request by the appellant on the same grounds as the first was refused, and the hearing went ahead in the appellant’s absence after he and his agent confirmed he would not be attending. 

The PCC proceeded with the hearing after determining there was no reason not to do so and found that the facts as proven amounted to unacceptable professional conduct. It determined that the only appropriate sanction in this case was erasure but permitted the appellant to apply for re-registration after a period of two years.

It was submitted for the appellant that he had not received a fair hearing as the PCC had failed to recognise a risk that ongoing civil proceedings would have prevented him from effectively participating in his defence. Further, the sanction imposed was excessive, as the PCC had not adequately explained why a single failure over a long career as an architect warranted erasure.

Serious matter

Delivering the opinion of the court, Lady Dorrian said of the fairness of the proceedings: “In response to the notice of hearing the appellant had admitted the key facts and unacceptable professional conduct. The civil proceedings had been sisted for a period of over two years, at the instance of the appellant, and there was no indication that they might become live any time soon. That this meant that any adjournment would be of indeterminate length was a matter which the PCC was entitled to take into account.”

She continued: “In acknowledging notice of the hearing, the appellant indicated that he intended to admit the allegations specified against him, that he would not be calling any witnesses and that he admitted that the allegations amounted to unacceptable professional conduct. There was no indication that he intended to mount a challenge to anything other than the assertion that the conduct amounted to serious professional incompetence.”

On whether the sanction of erasure was appropriate, Lady Dorrian noted: “The PCC is a specialist tribunal whose findings must be approached with respect. To entitle it to interfere with the decisions of such a tribunal a court would require to find a serious flaw in the reasoning, a serious departure from proper procedure which vitiated the proceedings, or a determination which could be clearly said to be ‘plain wrong’. There is no basis for any such findings.”

She concluded: “The appellant was instructed by the developer for the express purpose of carrying out site inspections to check the quality of construction of a block of 9 flats in Troon. Purchasers relied on the assurances provided in the various certificates signed by the appellant. The PCC was entitled to consider this to be a serious matter justifying erasure.”

For these reasons, the appeal was refused.

© Scottish Legal News Ltd 2021



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