Appeal Number: 03/07 

 Decision of the Chartered Professional Engineers Council - May 2008

Towards the end of 2007 Mr. A lodged appeals with the Chartered Professional Engineers Council (Council) against two decisions of a Registration Authority (RA) Investigating Committee in which complaints by him against two Chartered Professional Engineers – E and H - were dismissed.

Mr. A had engaged E to undertake engineering services at an hourly rate. When E charged for those services Mr. A had not anticipated the size of those invoices and he declined to pay them. Mr. A then chose to engage the services of another CPEng, H.  E informed H of his outstanding invoices. H then declined to do any further work for Mr. A

Mr. A complained to the RA on three grounds:

1.                that he had been charged exceptionally high fees;

2.                that E unethically colluded with H in “price fixing”; and

3.                that H unreasonably withdrew from a signed agreement to undertake work for him.

Both E & H responded to the original complaint explaining that in their view the matters were purely commercial, in essence being a dispute over fees.

An Investigating Committee was appointed by the RA and found both complaints to be commercial disputes over fees.  The complaints were dismissed without being referred to a Disciplinary Committee.

Mr. A appealed the refusal to refer the matter to a Disciplinary Committee to the Council.

The Council asked the RA to file a submission giving reasons why it considered there were no applicable grounds for discipline under the Act. Their original decisions had not given any detailed reasons. 

The RA considered that the standard by which CPEngs’ are to be judged does not include commercial matters which should be the province of the company for which the CPEng works.

Mr. A’s lawyer suggested her client’s complaint had been misconstrued and introduced a new element of “poor quality work”. The Council declined to consider these new matters and focussed on the original complaints.

The Council dismissed the appeals finding that it did not consider a dispute about fees, or even about the integrity of commercial arrangements, could be founded on any of the Rules. The Council stated in its decision:

“The Council does not consider that a dispute about fees, or even about the integrity of commercial arrangements, could be founded on any of the Rules.  The nearest that one might get to finding such a rule is Rule 45 requiring Chartered Professional Engineers to act with “honesty, objectivity and integrity”.  However this Rule is qualified by the words “in the course of his or her engineering activities”.  The Council considers that the commercial arrangements of Chartered Professional Engineers are not within the course of engineering activities.  It gains support from this view from the fact that the Code of Ethical Conduct under which this rule is headed is about “General Obligations to Society”.  The other rules in this part of the Act are about safeguarding health and safety and having regard to effects on the environment.  The overall tenor of this part of the Act is about how a Chartered Professional Engineer’s work might impact on society.  To attempt to import a commercial overtone into this rule we consider is a step too far, particularly when clients, employers and Chartered Professional Engineers themselves have recourse to the usual tribunals and Courts to pursue civil matters.

It should also be pointed out that Chartered Professional Engineer status is only available to individuals.   Therefore a complaint based on commercial matters would not proceed against a Chartered Professional Engineer in a large consulting firm because its contractual arrangements were with the consulting firm and not the Chartered Professional Engineer directly.  Consequently, it would be inconsistent to allow a complaint based on commercial matters to proceed against a Chartered Professional Engineer who was a sole practitioner, simply because that sole practitioner had a direct contract with a client.

We consider that if commercial disputes were considered to have been appropriate for the complaints regime under the Rules then a specific rule would have been included to have allowed for this – and it was not.”

The Council directed that this summary of its decision be posted on the Council’s website and that it be available for the RA to distribute to members of its Investigating and Disciplinary Committees.  It should also be made available to complainants who wish to make a complaint about commercial matters so that in the future any such complaints can be properly addressed in the correct forum.

In the decision that Council noted that it has the discretion to award costs.  On this occasion the Council did not award costs because this was the first time the Council has issued a decision clarifying the extent to which commercial matters may be the subject of a complaint to the RA.   However, it should be noted that in the future if commercial matters are pursued in this forum the Council will consider exercising it power to award costs.    

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