THE ARCHITECTS REGISTRATION BOARD PROFESSIONAL CONDUCT COMMITTEE. In the matter of. Mr FAHEEM AFTAB (063106J) held on.

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1 THE ARCHITECTS REGISTRATION BOARD PROFESSIONAL CONDUCT COMMITTEE In the matter of Mr FAHEEM AFTAB (063106J) held on 4 & 5 June 2013 at Chartered Institute of Arbitrators 12 Bloomsbury Square London WC1A 2LP Present: Mr Paul Housego (Chair) Ms Linda Read (PCC Lay Member) Ms Judith Carr (PCC Architect Member) Ms Nicola Hill (Clerk to the PCC) Mr Faheem Aftab attended and was represented by Stephen Climie of Outer Temple Chambers as instructed by Shoosmiths LLP. Iain Miller of Bevan Brittan appeared on behalf of the Board.

2 1. This is an unusual case. There were seven allegations considered by another Professional Conduct Committee (PCC) panel on 9 and 10 July The facts of all bar one - the one we are to hear - were admitted by Mr Aftab. That PCC panel found one admitted allegation not proved, (1.3) and the others proved, and erased him from the Register. 2. Subsequently Mr Aftab appealed on a procedural point that one allegation - that was not admitted, and which alleged that he had dishonestly lied about insurance to the ARB, had been added after the Investigation Committee had concluded its report. Therefore the allegation before the PCC was not properly before it, as an Investigations Committee report is a statutory prerequisite to a panel considering an allegation. By consent the sanction imposed (erasure) was set aside, and as envisaged in the appeal the dishonesty allegation went to an Investigations Panel, which referred it to the PCC, so that we are now to hear it. Having done so, we are to consider sanction for the other matters found proved by the previous panel. Only if we find the present allegation proved are we to consider sanction for that matter too. 3. We have read the previous panel decision prior to our finding of fact on allegation 1.2, and none of the panel had any prior knowledge of the substance of any aspect of any of the allegations, and nor has it been discussed by any of us with anyone within ARB or with any member of the previous PCC panel. 4. At the commencement of the case Mr Climie, representing Mr Aftab, asked us to consider whether it was appropriate for us to hear this case knowing, as we do, that a previous panel found the allegation of dishonesty proved. He is right to raise the point, but after considering carefully we do not think there is any reason for us to adjourn the hearing. 5. All three members of this panel have much experience of chairing professional conduct hearings, for the Nursing and Midwifery Council. Ms Read has also chaired such hearings for the General Medical Council. I have been an Employment Judge for over 20 years, and sit on the Solicitors Disciplinary Tribunal also. I am now also the chair of conduct and regulation for the Royal Institution of Chartered Surveyors.

3 6. For each of us it is frequently the case that we get to hear of matters that we then have to put out of our minds. We have no knowledge of the facts of the case save what is in the bundle. We are independent minded people. We do not think that an informed member of the public could think that this panel would not be holding a fair hearing. 7. More, by statute the panel must have an architect member. The sanctions imposed by this Committee are circulated to the entire profession. It is likely to be difficult or impossible to find an architect with no knowledge of this matter. 8. We are grateful to Mr Climie for raising the matter, and assure Mr Aftab that we make our own minds up on the basis - only - of the evidence which we will hear, and we are very experienced at so doing. 9. Before we adjourned to consider Mr Climie's point we also discussed procedure, and it was agreed that the only allegation to be put was 1.2, the findings on the other allegations being undisturbed by the consent order. That allegation was put, and Mr Aftab denied it, both as to unacceptable professional conduct and as to dishonesty. Mr Miller opened the case briefly (the panel having read the file of over 600 pages thoroughly before the commencement of the hearing). We agreed (Mr Miller not objecting) to accept three new documents produced for Mr Aftab. We heard oral evidence from Simon Howard of the ARB and from Mr Aftab. Mr Climie made final submissions on the one allegation upon which we have to make findings of fact. 10. That allegation is that at 1.2 of the original list of allegations. It says:- "He informed Mr Howard of the Architects Registration Board ( the Board") that his insurance was covering him for the project at 502 Holcombe Road when he was aware that the insurers had previously declined cover in relation to the project, contrary to Standard 1 of the Architects Code of Conduct 2010 ( the 2010 code"). For the avoidance of doubt this allegation is put on the basis that the misrepresentation was made with conscious impropriety or dishonesty. However if after hearing the defendant's explanation the PCC does not make such a finding it is also put on the basis that the conduct is nonetheless unacceptable professional conduct."

4 11. The brief history of this matter is as follows: Mr Aftab, through his company (A-Cube Architects Ltd), assisted a long-standing friend and his fiancée with a building project on what was to be their matrimonial home. There were many problems with this project which were dealt with by the previous hearing. This case centres on what Mr Aftab communicated to the Board about the insurance aspects of those problems. 12. After an acrimonious telephone conversation with the client indicating that a claim might be brought, Mr Aftab contacted his insurance broker. It was the first time in his career that he had had to notify a claim. He dealt with the same lady throughout until her maternity leave. He spoke to her by telephone on 2 May 2008, and that afternoon she ed him (R1) in response to that conversation. She said "Following our telephone conversation this afternoon where you advised they (sic) may be a possibility of a claim being made against your practice, as discussed, if you could send through the correspondence you have received from your client, together with the response, I can then pass this over to your appointed insurer's solicitor, for their information only at this stage." It also stated "We understand that currently you have not been told that a claim will be made against you, but they would like to have a meeting to discuss the work " 13. There was no correspondence from or on behalf of the client at the time, so none was sent by Mr Aftab. There was such a letter indicating that a claim would be made, on 9 December 2008, and then Mr Aftab notified Ms M (of the broker) of it by letter of 18 December 2008 to her. (This from the report of Mr C (the insurance consultant retained by the underwriter) dated 8 June 2009, (docs )) 14. In the meantime, the practice's insurance came up for its annual renewal. The broker and Mr Aftab spoke on the telephone and the broker filled in the form on screen, and ed to Mr Aftab, who printed and signed it. It contains a disclosure of a potential claim, but that was another claim for a property in Fulham. There was a separate document detailing that potential claim, but we have not seen it. It is agreed that it did not relate to this matter. 15. The proposal is dated 18 November 2008 and cover started 22 November 2008, to coincide with the expiry of the preceding insurance policy. We are told that the policy contained a

5 provision to notify potential claims within 30 days. We have seen no evidence of that, or whether the 30 days commenced from the date of the proposal form or the date of the start of the insurance cover. We know, from Mr C's report, that this claim was notified to the insurers by letter of 18 December 2008 to Ms Mears at the broker. Mr C's letter of 8 June 2009 states that Mr Aftab did not comply with the insured's duties in the event of a claim or circumstance; which was to notify in writing as soon as practicable or within 14 days of one of 6 items, one of which is the receipt of notice, whether written or oral, of the intention of any person or body to make a claim against them. 16. Mr Aftab's view was that while the client threatened action in May 2008 he did not disclose it on his November proposal form because the client had been, and at that time remained, a friend, and that he hoped the matter would be resolved amicably. He feels that he told the broker of the possibility of the claim in May 2008, and the broker had it on file and did not put it in the proposal form. He then passed on the letter soon after it was received; and that he therefore complied with the terms of the policy (whether or not there was a 30 day extension period after the new proposal form). 17. On 8 June 2009 Mr C of APC Associates, insurance consultants, wrote at length to Mr B of A- Cube Architects Ltd. Mr B was primarily responsible for the project for the client. Mr Aftab does not suggest that he was unaware of this letter at any material time. It was read to him by Mr B on receipt by him. It is at documents After a comprehensive review of the chronology and the policy terms it concludes, in bold type, that the underwriters are "entitled... to avoid this certificate/policy for materially inaccurate and misleading information presented within the Proposal" [for the policy]. It continues that instead they would continue the policy but exclude the matter of the client's claim. It concludes "I am instructed that you should act as a prudent uninsured and seek appropriate advice as to your potential liabilities and exposures arising from these matters." and "I will be closing my file in accordance with underwriter's instructions and regret that I cannot be of further assistance in this matter." 18. The reason for not covering the claim was that it was not disclosed on the proposal form as a potential liability.

6 19. It is a comprehensive letter and no one reading it could be in any doubt that this was an uninsured claim. 20. On 11 June 2009 Mr C wrote to Mr Aftab in reply to a communication from Mr Aftab asking Mr C to attend a meeting. He said he would take instructions: we know only that Mr C did not attend a meeting, and did not communicate with Mr Aftab again until 2 September 2010 (Mr Aftab's oral evidence of a telephone conversation of that date, when Mr Aftab says that Mr C agreed to revisit the file.) 21. On 2 September 2010 (doc. 563) Mr Aftab ed the solicitors for the client to say Please find attached correspondence as requested [it is not clear what was enclosed]. In addition we can confirm that we have continued our dialogue with our insurers and the claims consultant that they had appointed to the case. Following a request from A-Cube we can confirm that the consultant is willing to revisit their case file with a view to review the case." This is to express the hope that the claims consultant will, on reviewing the file, agree with Mr Aftab, and be able to persuade the insurer to cover the claim. Mr Aftab did not chase this up. 22. In a letter of 16 September 2010, Mr Aftab wrote a letter of explanation to Simon Howard of the ARB (501-3). He referred to specific complaints by number. At point 6 he wrote "Attached is a copy of our PI cover. The level of cover was appropriate for the service being provided." There is no reference to any difficulty with insurance. Appendix 8 to the letter is a full copy of the policy. 23. All this time the clients had been trying to resolve matters through their solicitors. Mr Aftab had issued proceedings against the client for some 25,000. They counterclaimed. By 9 April 2010 that claim was struck out and judgment was entered for the client on the counterclaim. 24. On 8 November 2010 A-Cube ltd was put into creditors voluntary liquidation (570) - the client told the Board this was so the following day. 25. The litigation was settled by consent order for 129, (which judgment has never been paid), but we do not know when, for the consent order is undated (330/1). Plainly it was after 8 November 2010.

7 26. On 9 November 2010 the Investigations Committee decided to refer matters to the PCC, but not insurance, which Mr Howard had withdrawn from them because of Mr Aftab's assurances as to insurance in the letter of 16 September Having obtained a judgment, the client wished to obtain the money. The company was in liquidation, so the money would probably only come from the insurers. The client was unable to gain any useful information from either the liquidators or Mr Aftab and so wrote again to Mr Howard at the Board. In an of 10th November 2010 the client wrote to Mr Howard by (569) to say Mr Aftab... also said that the insurers refuse to cover him on grounds that he had acted as contractor." 28. On 12 November 2010 Mr Howard replied to the client (569) to say "Your comments in relation to Mr Aftab's statement that his insurers have refused to cover him is one that causes me concern, and one that I will investigate further." 29. On 7 December 2010 at 11:52 Mr Howard ed Mr Aftab (574) In your submissions to the Board as a response to the allegations made, you provided evidence of your professional indemnity insurance and confirmation that you notified your insurance broker of the claim by [the client]. In light of the liquidation of A-Cube, could you please confirm that the claim was accepted by the insurers, and that any costs awarded against A-Cube (within your indemnity limit) will be covered by the policy?" 30. In response to that Mr Aftab telephoned Mr Howard who made a note of that conversation at 12:30 pm (575). That attendance note states Following my of 7 December 2010 to Mr Aftab, the architect called me to confirm that his insurers, while refusing to simply pay out to [client's] claim, have been properly notified and are covering him on this project. I was very clear in gaining his assurance that should a judgment be made in [client's] favour then the policy would react and pay the judgment, despite A-Cube being in liquidation." 31. Mr Aftab followed this up by (609) at 16:11 on 7 December "Further to your e- mail and our subsequent conversation I can confirm the following. In terms of the liquidation of A-Cube, I can confirm that the claim was and is being dealt with by the insurers, and now in conjunction with the liquidators. Whilst I cannot speak on the behalf (sic) of any third

8 party I would confirm that my understanding is that any relevant costs awarded against A- Cube will be covered." The rest of the is not germane. It is clear that by the word "costs" Mr Aftab that meant also "judgment" for he confirmed this in his evidence to us. 32. On 17 December 2010 the client ed Mr Howard (608) sending a copy of a letter from Mr C to the client's solicitor. That letter was dated 10 December It stated that the insurers declined to provide an indemnity. The letter of 8 June 2009 was enclosed in the letter to the solicitor, and both were forwarded with the client's letter. There is no reference to any review of the file or any request to review the file. The position maintained as at 10 December 2010 by Mr C is that the insurers declined liability on 8 June 2009 and have maintained that denial throughout. 33. As a result of that Mr Howard wrote again to Mr Aftab by on 20 December 2010 enclosing all correspondence and asking for his comments and clarification. Mr Aftab did not reply to that at any time. 34. Mr Aftab's communications to the Board about his insurance are, without any shadow of a doubt, unacceptable professional conduct. In his full response enclosing a large number of appendices he set out his position in full and enclosed details of his insurance cover. He did not give any indication of any difficulty with the insurance cover, still less that it had been declined. He did not mention any attempt to revise such a refusal or give any indication that there was any difficulty of any sort with the claim by the client being fully insured. On that basis the matter was not put before the Investigations Committee as Mr Howard withdrew it, taking Mr Aftab's word on the subject. 35. When the client raised the matter again, any objective reading of the communications passing between Mr Howard and Mr Aftab indicate a failure to communicate the true position. Mr Aftab says that he was under considerable strain at the time both for personal reasons, and because his company was going into liquidation, with staff with whom he had worked for years being made redundant. Even so, correspondence with one's professional regulatory body is to be taken seriously and one is entitled to expect an architect to make sure that his communications are comprehensive. In this case Mr Aftab's communication was intended to be comprehensive and yet it has some signal omissions.

9 36. The exchange of 7 December 2010 is on the face of it is misleading. We accept Mr Howard's evidence as to the veracity of his telephone note, made within half an hour at most of the conversation. If there is a failure to understand by Mr Aftab it was not through a failure to ask the right question by Mr Howard. 37. Having answered that question we turn to the issue as to whether the misrepresentation (for such it was) was made with conscious impropriety or dishonesty. 38. We note that Mr Aftab had told the client of the problem with his insurance. There is no reason to doubt that he thought the Board would know of it from the client. We note that Mr Aftab had little to gain from a deceit. He was already being referred to the PCC for a variety of matters. He has produced professional testimonials testifying to the view of others that he is a man of integrity. We note the burden of proof is on the Board and that Mr Aftab does not have to prove anything. We note Mr Climie's eloquent submissions that Mr Aftab is (to paraphrase) a man unable to distinguish fact from opinion or belief, and that he uses ten words where one or two would suffice. That a man is a good architect does not mean that he is a good oral witness. Those submissions record what we observed. He seems to have the ability to believe to be so what he wishes to be so. 39. We have taken fully on board the cases of R v Ghosh [1982] EWCA Crim 2 (in a criminal context), Twinsectra Ltd v Yardley [2002] UKHL 12 and Bultitude v Law Society [2004] EWCA Civ The objective test is fully met. The informed bystander would think Mr Aftab's conduct about insurance lacking in integrity: dishonest and conscious impropriety. 40. Mr Aftab said to us that he felt that the reason his of 7 December 2010 was not dishonest was because he felt that if the insurer did review the case and did take on board what he was saying then they would cover the claim, and he considered this was all about the liquidation. That he did not identify the real issue was not dishonest, he said. He did not believe it to be untrue, even now, although he agreed it was, in his word ("clunky"). 41. It is not enough for Mr Aftab to have a belief system of his own, but if there is any doubt he has the benefit of it. This is, frankly, an appalling way for a professional man to behave towards his regulatory body, but he did tell the client of the problem with the insurance, and

10 so, for this, and for the other reasons set out in his favour, on the balance of probabilities we find that he was not dishonest. 42. The proven allegations were that (a) he acted without integrity or in a manner which was inconsistent with his professional obligations in: advising his client to enter into an arrangement that was not in his best interests; failing to provide his client with any contractual documents, or recommending that he enter into any contractual arrangement with an independent contractor requesting that payments be made out personally to him contrary to Standard 1 of the Architects Code of Conduct 2002 ( the 2002 Code ); and/or (b) he failed when offering a service which combined consulting services with contracting services, to make clear to his client in writing that A-Cube s services would not incorporate the independent functions of an architect, contrary to Standard 1.5 of the 2002 Code; and (c) he failed to ensure that he was able to provide adequate professional, financial and technical competence and resources throughout the project, contrary to Standard 2 of the 2002 Code; and (d) prior to undertaking professional work, he failed to record in writing provisions for termination and/or the fact that he, as architect, was subject to the disciplinary sanction of the Board in relation to allegations of unacceptable professional conduct or serious professional incompetence, contrary to Standard 11.1 of the 2002 Code; and (e) he failed to carry out the works without undue delay and as far as is reasonably practicable in accordance with any time-scale and cost-limits agreed with his client, contrary to Standard 11.4 of the 2002 Code

11 and that he was therefore guilty of unacceptable professional conduct pursuant to Sections 14(1)(a) and 14(3) of the Architects Act Mr Climie spoke in mitigation. We have considered the question of sanction very carefully. We have taken careful note of our Clerk's advice. We have paid careful attention to the indicative sanctions guidance. We noted that we have heard no evidence from the clients affected, that the purpose of sanction is not to punish, though that may be the effect of a sanction. We have to maintain the reputation of the profession in the eyes of the public. We are mindful of the need to uphold and declare proper standards of conduct (and competence) and to maintain the confidence of the public in this Committee and the ARB as the profession's regulator. 44. In this case we have noted the enormous impact on the client. The architect failed to pay heed to the most basic of boundaries; was he the architect, was he the contractor, was he neither? He issued Architect's Instructions, but did not seem to be the architect. Ultimately he ceased to be involved and sued the client for money he said was outstanding. He had paid out money for the client, and then collected money from the client whilst at the same time letting the client pay some bills direct. Having done all those things there were then difficulties with his insurance, and he was less than frank with the ARB about those issues, as we have found. The matter with the clients extended over some years. The clients have recovered nothing of their enormous loss, and nor will they. These are serious matters indeed. 45. Mr Aftab is an architect of some renown, and he has suffered greatly through this process. He has lost his business his reputation and his home, but those personal matters do not weigh greatly with us in the matter of sanction. Nor does the time between the events and now - that has been inevitable. Mr Aftab does produce professional testimonials which are impressive. 46. It is plain that a sanction is required in this case. A reprimand is appropriate where matters are at the lower end of the scale of seriousness, and plainly this is not one of those cases. We then considered a penalty order, but the matters of this offence are too serious so that

12 that a reprimand or penalty order would be insufficient to protect the reputation of the profession, or the ARB as its regulator. 47. We have then considered a suspension order. Mr Climie accepted that realistically the sanction was not going to be less than a suspension. We have not found that Mr Aftab's integrity is in question. We have considered very carefully whether these matters are so serious that for reasons to do with the reputation of the profession and the maintenance of the ARB as its regulator we should consider this too serious for a suspension. 48. We bear fully in mind fully the consequence on client was truly appalling and that the public must have confidence in the reputation of the profession. However suspension is a very serious matter for an architect. 49. By the narrowest of margins we conclude that a suspension is appropriate. The reason for this is that Mr Aftab commenced this ill-fated project with good intentions, to assist a friend to build an extension to his home, which project was unaffordable for him in a conventional way. This is not an area of work in which he practised extensively, for most of his work is to do with educational buildings. It is highly unlikely that he would repeat such an exercise, or make such mistakes again. He is remorseful and contrite. 50. We were invited to reduce the period of suspension to take account of the period since the first panel hearing almost a year ago. It would be inappropriate to do so, and also inappropriate to impose less than the maximum period of suspension possible, that is two years. 51. Accordingly we impose an order of suspension from today of two years.