Over the past eighteen months we have seen a significant increase in complaints leading to formal investigations against architects and surveyors. The outcome of these complaints can have a catastrophic effect on a professional's business and career.
We set out below a summary of the process followed by the Architects Registration Board, the Royal Institute of British Architects and the Royal Institution of Charted Surveyors and provide advice on how to respond if you receive a complaint.
There are some small variations in process between the various regulators. However, in general they follow a two-stage process.
Firstly the investigations team will write to the professional setting out details of the complaint and inviting comments. In many instances these comments are then referred to the complainant before the regulator considers what action to take.
A regulator will then decide whether there is sufficient evidence:
• To demonstrate that the basic facts of the complaint are correct;
• To support an allegation of professional misconduct or to demonstrate a breach of the relevant code of conduct; and
• To demonstrate that it is in the public interest to take further action.
At this point the investigations panel may (a) determine the complaint has no merit and therefore take no further action, (b) provide advice to the professional as to their future conduct or (c) refer the matter for a Disciplinary Panel Hearing.
Disciplinary Panel Hearings are formal affairs akin to a court hearing. They are held in public. The regulator's case against the professional is presented to the panel by a barrister or a solicitor. The professional will then be cross examined and questioned by the panel. The complainant may be in attendance and required to give evidence. It is a stressful experience.
On conclusion of the hearing, the Panel will decide whether there has been professional misconduct or a breach of the relevant code of conduct which warrants a sanction. The Panel has wide-ranging powers. It may choose to issue a reprimand or fine. However, in relation to serious offences, the Panel has the power to expel the professional from the organisation, which can have devastating consequences for their business and career.
There are some important steps to consider if you are subject to an investigation by your regulatory body.
1. Notify Insurers
We would recommend forwarding the letter to your broker as soon as possible. Your broker can then consider whether this is something that you might be insured for and whether it is appropriate to notify relevant insurers.
Many complaints are being made to "test the water" prior to commencing civil proceedings. A failure to notify at an early stage may prejudice insurers' position in relation to any subsequent civil claim. A finding of professional misconduct is likely to make it difficult to challenge allegations of negligence based on the same facts.
There may be cover available under one or more of your insurance policies to assist with obtaining legal advice regardless of whether it relates to a potential future claim.
2. Obtain legal advice
It is preferable to try and resolve the matter at the investigations stage. The chances of this can be increased by providing an appropriate response to the initial complaint letter. Early legal advice can save further expense and management time in preparing for a disciplinary hearing further down the line. It can also prevent you from inadvertently saying the wrong thing.
Even if legal advice has not been obtained at the investigations stage, it may still be worthwhile in relation to any disciplinary hearing. Each regulator has rules and timescales that must be adhered to for submitting information relevant to a professional's defence. Failure to adhere to those timetables may result in a lost opportunity to submit information. Due to the nature of disciplinary panel hearings, legal representation at the hearing by experienced Counsel is also likely to be of benefit.
3. Preserve documents
As with ordinary litigation, good records make it easier to prepare a defence. The first step in preparing a response should be to make sure that any documents relating to the subject matter of the complaint are identified and preserved. These are likely to be of use to you and your legal advisor in preparing a response to the complaint.
The rise in complaints and investigations that we have seen recently suggests that it may be the new method of choice for a disgruntled former client to seek recourse against a professional. While it does not offer any financial compensation to the complainant, it does offer them a means of testing the strength of their claim without the adverse costs risk that accompanies litigation. On other occasions the complainant may simply wish to see the professional 'punished' for what they perceive to be unfair treatment.
If you are unfortunate enough to be subject to an investigation, we would recommend telling your broker and seeking legal advice before you respond to the complaint to ensure an appropriate defence to the allegations is put forward and that you receive a fair hearing.