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Understanding the ARB's role as gatekeeper of the register

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legal matters

H H J Humphrey LLoyd QC, who sits in the Technology Construction Court (TCC), wears another hat as the vice-chair of the ARB. For his talk to the Society of Construction Law and the Technology and Construction Bar Association (11.12.02), he chose his 'new interest'of the ARB as his topic.

The judge was of the view there were lessons for both lawyers and other construction professionals in looking at the workings of one of the few professions with a form of licensing, and the only professional regulatory statutory body in which lay members outnumber professional members.

Much of the judge's talk explained the role of the ARB as gatekeeper of the register, and described the membership and workings of the board, all of which is familiar to regular readers of the AJ.However, while he took care to emphasise that the ARB's role is a statutory one and the board simply carries out the functions assigned to it, the judge raised various questions about possible gaps in the present regime.

The talk's recurring theme was based on the ARB's mantra of protecting the consumer. Who, asked the judge, is the consumer, what do they want, and what can the ARB do for them?

The ARB's regulatory role focuses on the individuals on the register, rather than practices. As a result, the complaints procedure deals with complaints against individuals. However, some 75 per cent of architects are employed by practices, rather than acting as principals. It follows that, as presently set up, the ARB cannot take up the cudgels on behalf of the client whose complaint is aimed at a practice, as it is statistically likely to be.

The audience was told that there are areas in which the ARB has power to (and is seeking to) reflect the reality that the majority of architects work for practices. Until recently, the standard that has had to be attained by a Part 3 applicant was that expected of a sole practitioner in their early years of practice. Such a standard is fine for the client of that kind of architect. But the ARB has concluded that to better meet the needs of more clients, it is necessary to move towards requirements relating to themes such as value engineering and the displacement within the industry of the architect as project manager.

But consumers come in forms other than the clients. One aspect of the ARB's work that throws this into sharp focus is the requirement for architects to maintain professional indemnity insurance (PII). The judge views this requirement as a great success, with 98 per cent of architects this year saying that they have insurance in accordance with the guidelines.

PII potentially provides benefits for many parties to the building process. For example, consider a contractor who is sued by a client, and in turn claims a contribution from the architect, perhaps for alleged design defects.

If successful, the contractor will be the beneficiary of the architect's PII.That, perhaps surprisingly, in the judge's view turns the contractor into a consumer.

Another group of potential beneficiaries of the architect's PII, who it was also suggested may be categorised as consumers, is third parties.

Consider the subcontract labourer who sustains a serious injury and claims against the architect for having prepared an unsafe design. The judge recognised that the sums claimed by this group may be very high, outstripping the available insurance. That is a far from satisfactory result for the injured consumer/subcontractor. The judge suggested that the protection of this group of consumers may be better met by a projectbased, no-fault insurance, making life easier for the claimant. It would also presumably move the costs of such insurance away from the individual consultant to the project as a whole.

It seems, particularly given his apparent enthusiasm for his new role, that the judge is of the view that the ARB already fulfils a useful purpose, and would be happy to see that role expanded. As a lay member of a board where such members are in the majority, his perception of the broad church of 'consumers' who need protection is revealing.Considered together with his references to more extensive licensing systems in other jurisdictions, the judge seems to think the ARB is a good thing, and is here to stay.

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