Mr David Loynes FRICS & David A Loynes
Appeal Panel hearing - 14 November 2012
Peter Scott MRICS
Lee Gledhill (Lay)
Proceeding in absence
This hearing is a continuation of the hearing which took place on 25 July 2012. That hearing was adjourned for lack of time. Mr Loynes did not attend the hearing in July.
On that occasion, the Panel noted its ability, under Rule 30 Disciplinary, Registration and Appeal Panel Rules (the Rules), to proceed in the absence of the respondent if satisfied that notification under Rule 23 had been properly given. The Panel was satisfied that the requirements of Rule 23 had been met.
The Panel accepted that, in those circumstances, it had discretion whether or not to proceed, and that such discretion must be exercised with utmost caution.
Having properly taken into account all the relevant factors on that occasion, the Panel decided to proceed in Mr Loynes’ absence.
Today, Mr Gutteridge submitted that there had been no change of circumstances since July 2012, so the Panel’s earlier decision to proceed in Mr Loynes’ absence need not be revisited. On the basis of advice from the Legal Assessor, the Panel decided that – on the same basis as its decision in July 2012 - it would continue to hear the case in Mr Loynes’ absence.
Admissibility of new evidence
Today, Mr Gutteridge submitted that the documentation supplied to RICS with Mr Loynes’ notice of appeal constituted new evidence. As such, Rule 65 states that it can only be provided with leave of the Panel. Having taken account of Mr Gutteridge’s submissions and on the basis of the Legal Assessor’s advice, the Panel gave leave for such documentation to be admitted as new evidence.
- On 25 January 2012, the RICS Disciplinary Panel considered two charges against each of Mr Loynes and his firm, David A Loynes.
- The first charge against each party related to absence of professional indemnity insurance. The second against Mr Loynes was failure to respond to RICS correspondence, and against his firm, failure to submit an Annual Return.
- Mr Loynes did not attend the Disciplinary Panel hearing. As stated above, the Disciplinary Panel exercised its discretion to proceed in Mr Loynes absence. It concluded that an adjournment was unlikely to resolve the issues.
- The Disciplinary Panel found all four charges proved, and both Mr Loynes and his firm liable to disciplinary action in accordance with Byelaws 5.2.2 and 5.3.2 respectively
- The sanctions the Disciplinary Panel imposed were expulsion in respect of Mr Loynes, and removal of registration of his firm. The Panel ordered Mr Loynes to pay RICS’ costs.
- Mr Loynes now appeals the Disciplinary Panel’s decision.
- This Appeal Panel has had the benefit of representations made by Mr Gutteridge on behalf of RICS. The Panel also took into account the new evidence provided with Mr Loynes’ notice of appeal.
- The Appeal Panel has had regard to the Rules, the RICS Sanctions Policy and its various supplements.
- Having regard to the all the matters presented to it, this Appeal Panel considers that Mr Loynes has discharged the burden of satisfying it that the Disciplinary Panel’s decision was wrong. His appeal is therefore allowed.
- The Appeal Panel’s reasons are that:
- Rule 64 of the Rules empowers an Appeal Panel to review the decision of the Disciplinary Panel.
- Under Rule 66 of the Rules, the burden rests with Mr Loynes to satisfy the Appeal Panel that the order being appealed was wrong.
- Rule 68 of the Rules states that only where the Appeal Panel considers that the decision of the Disciplinary Panel was wrong, may it allow the appeal.
- Rule 69 sets out the Appeal Panel’s powers to make various orders if it allows the Appeal.
- This Appeal Panel has carefully considered the transcript of the Disciplinary Panel hearing on 25 January 2012, as well as the written representations and new evidence since submitted to this Panel on Mr Loynes’ behalf.
- In the Appeal Panel’s view, the Disciplinary Panel’s decision was wrong. Through no fault of the Disciplinary Panel, credible, relevant and important evidence about Mr Loynes’ health and personal circumstances now available to this Panel had not been provided to the Disciplinary Panel. In the Appeal Panel’s view, had such evidence been presented to the Disciplinary Panel, it would not have made the decisions that it did.
- The Appeal Panel therefore allows Mr Loynes’ appeal and reviews the Disciplinary Panel’s decisions.
- In accordance with Rule 69, this Appeal Panel does not vary the Disciplinary Panel’s finding that Mr Loynes and his firm were liable to disciplinary action but it varies the penalties imposed to those of lesser severity.
- In place of expulsion of Mr Loynes, this Appeal Panel imposes a condition on his continued membership. That condition is:
He must provide to RICS, before undertaking any further work as a chartered surveyor, evidence satisfactory to RICS that there is in place for all such work undertaken by him adequate and appropriate indemnity insurance cover which meets the standards approved by RICS Regulatory Board.
In place of removal of registration of David A Loynes (the firm), this Appeal Panel imposes conditions on its continued registration. Those conditions are:
- The firm must submit to RICS within six months of this decision information about its activities in the form of an Annual Return (as requested by RICS from the firm on 11 May 2011 in accordance with Rule 14 of the Rules of Conduct for Firms 2007) and any further outstanding Annual Returns; and
- The firm must within six months of this decision ensure that all previous and current professional work is covered by adequate and appropriate indemnity insurance cover which meets the standards approved by RICS Regulatory Board (in accordance with Rule 9 of the Rules of Conduct for Firms 2007)
Failure to comply with either of these conditions shall lead to automatic removal of the Firm from registration with RICS.
In the Appeal Panel’s view, such sanctions are proportionate, protect the public interest and promote regulatory compliance.
Determination on Publication and Costs
The Panel directs publication of this decision in accordance with Supplement 3 to the Sanctions Policy.
No application for costs was made on the basis that Mr Loynes was not a member of RICS at the date the Appeal Notice was served. Therefore the Panel makes no order for costs.