Ian Salisbury, who was acting pro-bono on behalf of architect Dan Marcal, said the board’s Professional Conduct Committee (PCC) ‘had made a fool of itself’ over its ruling and that the case should never have been brought.
The PCC found that Marcal had failed to provide adequate terms of engagement to banker Philip Freeborn and his wife Christina Goldie on the project to create a floating ‘sleek modern’ cube in the poolhouse at their £7 million home in Totteridge, north London.
The committee also held that he had failed to produce an adequate design in line with the Building Regulation Requirements, did not have sufficient professional indemnity insurance and failed to have ‘effective systems in place to ensure that his practice was run professionally’.
However the committee cleared Marcal of any dishonesty and of placing himself in a position of conflict of interest.
The panel also found him not guilty of failing to produce an adequate design in line with the clients’ requirements – a decision that seems to go against the 2019 High Court ruling (see ‘Wonky’ home cinema court case ‘warning to all architects).
During that hearing, clients Freeborn and Goldie claimed they had been ‘shocked’ when the box-like structure was completed, saying the designs were not what they had expected, had not been agreed on and, according to Mr Justice Bowdrey, sitting as a deputy Technology and Construction Court judge, had left them with an ‘ugly duckling’ which could not ‘be turned into a swan’.
But the PCC said the clients must have been aware of what had been proposed – and signed off its key elements. The ruling reads: ‘[The] committee considers that it is simply not credible that the respondent would proceed to the construction phase with a design that the complainants [clients] were not happy with and had not approved.’
‘The committee considered it was possible that they had not fully understood every aspect of the design or how it might look but, nevertheless, they were involved and consulted on the design process and agreed the main features.’
The committee did, however, find that Marcal’s designs were not in line with the Building Regulation Requirements because he had ‘never considered an alternative means of escape’ or to include a balustrading to guard the opening at the cinema level, both of which had been overlooked in the original designs.
In his defence, Marcal said that because he was prevented from seeing the project through, he did not have the chance to tackle these omissions.
The PCC judgment reads: ‘It was the respondent’s case that there was an oversight in the initial design for a secondary means of escape, but this was a minor technical error that he had identified and would have corrected if he had been allowed to complete the project.’
Despite this, the committee concluded that Marcal had never given ‘these matters serious consideration and this was a serious failing on his part’.
The judgment also spells out why, having heard all the evidence, the PCC felt Marcal had failed to provide adequate terms of engagement.
Marcal said this had been due to a typing error when he tried to send a copy of the 2010 RIBA Standard Form of Agreement 2012 Edition by email to one of the homeowner clients in May 2015, but mistyped her email address. He had insisted that this did not amount to a serious lapse of professional conduct.
But the PCC disagreed. Of particular note, the judgment states: ‘The RIBA standard terms of engagement were not compliant with Standard 4.4 of the Code as they do not set out insurance arrangements, price and scope of the works, a complaints procedure and all the matters required by Standard 4.4 of the Code.
Before the hearing, Salisbury had argued that the PCC did not have jurisdiction to hear the matter against Marcal because the referral of the allegation was ultra vires. He claimed the ARB had acted outside the powers granted to it and had effectively ‘coached’ or ‘schooled’ them into making a complaint.
He also submitted that the case’s particulars did not fall within the description of unprofessional conduct and were in fact matters of competence which should, potentially, have been charged instead as serious professional incompetence (see full sanction statement attached).
Responding to the decision, long-time ARB critic Salisbury told the AJ: ‘The decision shows the respondent’s arguments, that were well made, were comprehensively ignored.
‘Once an architect is within the sights of the board, the defendant has very little chance of defending themselves.’
He added: ‘Most people who appear before the PCC are inadequately funded. The profession needs to organise itself so there is a defence fund available to architects who have the misfortune to find themselves in this predicament.’
The cinema room – as built
Last year Marcal claimed he had offered to give up the title of architect voluntarily as he has no intention of practising again after the legal case cost him his house, damaged his mental health and ‘left an indelible mark’ on him. However, the ARB has a policy of ensuring architects don’t avoid disciplinary proceedings by resigning.
At the time the 44-year-old said the ARB had been ‘incredibly rough’ in continuing with its investigation.
Marcal has been suspended from the UK register of architects for a year.
The PCC said: ‘The committee acknowledged that the order was likely to have a significant impact on the respondent and it took into account all of the circumstances.
‘However, it considered that it was appropriate to temporarily remove the respondent from the register for this period in order to uphold proper professional standards and to maintain the reputation of the profession.’
The ARB declined to respond to Salisbury’s criticisms.
Read the full judgment here.
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