It is a basic principle of British law that a defendant is entitled to proper representation.
The new arb Code of Professional Conduct & Practice departs from this tradition under the terms of Standard Eleven as it requires an architect to: ' . . . report to the Registrar any serious falling short of standards on the part of any architect . . . ' (Clause 11.1) and refuse an appointment ' . . . the terms of which would prevent any party from reporting to the Board the conduct of an architect' (Clause 11.4).
These clauses, which relate to both competence and integrity, go to the very heart of the issue of trust and confidentiality that is the essential relationship between an architect acting as an expert in dispute resolution and the architect who he represents. They oblige expert architects in any litigation to report, where appropriate, an architect against whom a claim for negligence has been made. Many experts (me included) will not even name those that they represent or act against (past or present), let alone report on their affairs. In requiring us to do so, the new code produces three possible results:
it will be ignored by architects when acting as experts.
it will be diligently applied by experts to the grave disadvantage of defendant architects.
architect experts will no longer be willing to represent other architects - thus denying them and their pi insurers a proper defence (some experts might of course continue to act for plaintiffs in cases brought against 'undefended' architects).
The last issue undermines the very basis of our legal system. Quentin Fox, a partner at Squire & Co, a solicitor specialising in pi cases, is deeply concerned that these clauses are unworkable as architects have an obligation to make available all their files to the legal team representing them on behalf of their professional indemnity insurers. Such information should be used discreetly in relation to the defence and for no other purposes. If such confidentiality is not available, defendant architects may be selective about what information they pass to an expert - thus breaching their duty to their insurers. Mr Fox believes that the new arb code places experts in 'the most invidious position possible'.
Clinton Douch of Nelson Hurst and Marsh was among leading pi brokers and insurance companies who joined the chorus of condemnation, while Michael Cohen, a barrister and also Chairman of The Academy of Experts, said, 'This aspect of the arb code strikes at the very root of our legal system because sectional interests - namely those of the arb - appear to take precedence over the interests of our country's legal system.'
So, when reading your new arb code over the festive season, you should dutifully decide who you will 'shop' in the new year - perhaps your boss if he is breaching paye legislation by wrongly employing staff on a self- employed basis, or your colleague or employee who has made a major error and has asked you, under note q of the code, for 'impartial advice'.
And bear in mind that if you need an expert to defend you next year, he may have to breach the code of conduct if he is to respect your request for confidence. If he does give such an undertaking, you must of course report him . . . Have a merry Christmas!