CM starts a new contract clinic this month, in partnership with Decipher Consulting, to help readers who are wrestling with legal conundrums on construction projects. First up, Amanda John answers a question about the copying of a preliminary ecological appraisal report.
The question
An architect has taken a Preliminary Ecological Appraisal report produced by my company relating to a specific site, copied it and amended various sections to make it appear to relate to a different, nearby site.
The alterations that the architect made included inserting a new front page, changing the client name and site address, adding new instructions, changing the executive summary to include different site details, altering the recommendations table, the background to the site details, the site map, site feature descriptions and photographs to show a different site. They also removed the Phase 1 Habitat Survey map and inserted plans relating to a different site.
The local planning authority spotted that it was a specious report and rejected it. We do not want to damage the reputation of another professional, but we have since been instructed by our client to undertake another large Preliminary Ecological Appraisal and we are concerned our client will now have all applications very closely scrutinised by the planning authority.
The answer
There are three issues here. How the local planning authority (LPA) is discharging its obligations; the actions/behaviour of the architect in relation to the Architects Registration Board code of conduct; and potential breach of copyright.
The planning authority is obliged to review all applications, and associated documents, closely – regardless of the applicant submitting it. The fact that authority spotted that the report submitted by the architect was not accurate indicates that it is doing what is required of it.
Your concern regarding your client’s future applications is likely to be unfounded. Furthermore, there is an appeals process if you consider that your client has been unfairly prejudiced. However, you cannot complain if the LPA acts in accordance with its obligations and scrutinises your clients’ applications.
Point of professional conduct
In relation to the architect’s behaviour, I understand your reluctance to cause another professional reputational harm, however their behaviour is arguably a point of professional conduct which should be referred to the Architects Registration Board (ARB). The architect in question appears to have breached the Architects Code: Standards of Professional Conduct and Practice, including acting with honesty and integrity, and maintaining confidence in the profession.
This is cause for a complaint to, and possible disciplinary action by, the ARB. You may not want to make a complaint, so a first step may be to write to the architect in question and seek explanation and assurances that they will not plagiarise work in future. You may however be thinking of the wider impact on your clients and work and consider a complaint is appropriate.
A complaint to the ARB may not result in disciplinary action, and you can ask them for guidance on the situation; it may give you at least some comfort to speak with the ARB. Note that the ARB cannot deal with the underlying copyright issue, only the architect’s behaviour, and possible breaches of the Architects Code.
“Rather than commencing legal proceedings, which will incur substantial legal costs, you might be able to negotiate for payment of a licence fee for use of your copyright.”
At the very least, you own the copyright in your report and also the copyright in the report submitted by the architect insofar as it uses your material and is so similar to your own report that the provenance of it has been questioned. On the basis of the information you have provided, it would appear the architect has breached your copyright.
The likely remedy you could seek is a licence fee for use of your copyright. A copyright licence is standard in consultant appointments, though you may not have a separate licence fee to your usual fee for services. A licence fee is likely to equate to the fee you would have received had you been instructed to prepare the report or the fee you would have charged for someone to use the report. Rather than commencing legal proceedings, which will incur substantial legal costs, you might be able to negotiate with the architect for payment of that licence fee.
Any negotiations will come with a cost (largely your management time and effort). A claim, if you decided to pursue the breach through the courts, will be costly in terms of both time and fees. You should think carefully about whether you want to pursue this. It does not sound as though the architect’s report was competently complied and executed; is it something you want to be associated with? Your name was not on the copied report therefore there does not appear to be a loss of reputation for you.
There are no easy answers here and you will need to decide what you are comfortable doing and living with. That might be an informal chat with the architect (along the lines of: we’ve noticed the copyright breach; please don’t do it again) to making a complaint to the ARB or pursuing a claim. These options are not mutually exclusive; you can escalate things if you wish. However each comes with its own costs and toll on your business.
If you are minded to pursue a claim, please seek formal legal advice. Otherwise, have a chat with the ARB, which may be able to give you more specific guidance if you provide them with more information.
Amanda John is an associate at law firm Edwin Coe.
Got a question for our contract clinic panel? Email: [email protected].
