9 MAR. 2012
Mr Andrew Davies BSC and Davies White & Perry
Disciplinary Panel hearing - 07 March 2012
The formal charges for Mr Andrew Davies are:
1. That you did not conduct yourself in a manner befitting membership of RICS in that you used the term “R.I.C.S” after your name on business stationery for the firm Davies White and Perry so as to imply that it was a designation given by RICS contrary to Bye-law 5.2.1 (a)
2. That you did not co-operate fully with RICS staff in that you did not respond to letters and e-mails sent to you dated 28 February, 17 March, 04 April, 13 April, 27 April, 25 May, 24 June, 08 July and 27 July 2011 contrary to Rule 9 of the Rules of Conduct for Members 2007
The formal charges for Davies White & Perry (the Firm) are:
1. That Davies White and Perry (the Firm) failed to preserve the security of client money entrusted to its care in the course of its business as detailed in the findings of Mrs Cherry Leeder A.C.A., RICS accountant, at points 1.3 to 1.10, 1.12, 1.13, 2.5, 2.6 and 2.14 to 2.17 in her report of a Regulatory Review Visit to the firm on 01 July 2010 contrary to Rule 8 of the Rules of Conduct for Firms 2007
2. That Davies White and Perry (the Firm) failed to pay the appropriate annual fee for registration set by the Regulatory Board namely the sum of £560 and the subject of an invoice sent to the firm dated 18 February 2011 contrary to Rule 10.1 of the Rules for the Registration of Firms 2009.
Decision to proceed in absence
The Panel was satisfied that Notices of Hearing, dated 30 January 2012 and indicating the details of today’s hearing, had been sent to both Mr Davies and the Firm, Davies White & Perry, in accordance with Rule 23.
The Panel took account of the advice of the legal adviser that in those circumstances, it had a discretion to proceed in absence, but that discretion must be exercised with caution and with the fairness of the proceedings at the forefront of its mind.
In the light of the RICS Listing Questionnaires signed and returned by Mr Davies dated 15 February 2012 and 02 March 2012 respectively, the Panel was satisfied that Mr Davies and the Firm were fully aware of the hearing taking place on 07 March 2012 and had decided not to attend or be represented. There was no indication that either wished to attend or be represented, or was seeking an adjournment of the proceedings. The Panel decided that no purpose would therefore be served by an adjournment and the public interest required that the hearing should proceed today.
The Panel considered the evidence presented on behalf of RICS and the submissions of Mrs Buckley. It accepted the advice of the legal adviser.
Mr Andrew Davies
The Panel noted that Mr Davies had indicated in the Listing Questionnaire sent by RICS that he admitted the two allegations against him.
The Panel took account of the admissions and also accepted the evidence presented by Mrs Buckley on behalf of RICS in the documentary bundle. The Panel was satisfied on the balance of probabilities that the allegations are proved and that Mr Davies is liable to disciplinary action.
Davies White & Perry
The Panel listened carefully to the evidence of Mrs Cherry Leeder ACA, who conducted the review visit in respect of the Firm on 1 July 2010, and considered the report of her visit in the evidence bundle. The Panel considered the submissions of Mrs Buckley on behalf of RICS and accepted the advice of the legal adviser. In the absence of Mr Davies, the Panel noted the response he had made in his letter of 06 October 2010 and the enclosures.
The two allegations against the firm were denied on behalf of the firm.
The Panel was satisfied on the balance of probabilities that the two charges are proved.
In respect of charge 1, Mrs Leeder's visit was a follow up to a visit to the Firm in February 2009 and was to review whether the Firm had remedied the failings identified at that earlier visit. Mrs Leeder’s evidence and her report clearly identified that, although some progress had been made by the Firm since the first visit, there remained serious failings in the Firms accounting arrangements which raised concerns about the security of client monies held by the Firm. Further serious and additional failings were also identified in this visit.
The Panel found the failings referred to by Mrs Leeder in her evidence to the Panel to be proved on the balance of probabilities, and for the avoidance of doubt, these were those referred to in paragraphs 1.3, 1.4, 1.5, 1.13, 2.6 and 2.17 of her report.
In respect of charge 2, the Panel was satisfied by the evidence presented by Mrs Buckley that it was clear that the Firm had failed to pay the annual fee for registration of £560.
The Panel was satisfied that in respect of both charges, the Firm Davies White & Perry is liable to disciplinary action.
Determination on Sanction
The Panel considered the submissions of Mrs Buckley on behalf of RICS, accepted the advice of the legal adviser and took account of RICS’ sanctions policy.
The Panel were advised that no submissions or evidence in mitigation had been put forward on behalf of either Mr Davies or the Firm. The Panel took into consideration the information which had been provided by Mr Davies and the firm in the documents bundle.
Mr Andrew Davies
The Panel noted that Mr Davies had no previous RICS disciplinary record. The Panel acknowledged that Mr Davies had made admissions to the charges, albeit at a late stage of the proceedings.
Mr Davies had used the initials "R.I.C.S" after his name on the Firm's headed notepaper. As he was not fully qualified, he was not entitled to use any form of designation relating to RICS and this in any event was an incorrect formulation. The proper forms are either "MRICS" or "FRICS". The Panel concluded that Mr Davies had sought to benefit from associating himself publicly with RICS, whilst showing a disregard for its regulatory requirements. Mr Davies had demonstrated a wilful disregard for his responsibilities, and had stated that he did not wish to engage with RICS and regarded its correspondence as "junk mail".
The Panel considered that the charges were sufficiently serious to require the imposition of a penalty and that neither a caution nor a reprimand would be sufficient.
Given Mr Davies’ attitude to regulation and his persistent failure to co-operate with RICS, the Panel did not consider that undertakings as to his future conduct would either address the failings or serve any useful purpose. The Panel was of the same view in relation to a conditional order. Neither would be appropriate in the circumstances of this case.
The imposition of a fine would not address Mr Davies' conduct. The Panel decided that in view of Mr Davies’ persistent and wilful failure to co-operate with RICS, his lack of integrity by the inappropriate use of the letters "R.I.C.S" and his demonstrated disregard of regulatory obligations, the only appropriate sanction was expulsion of Mr Davies from membership of RICS.
Davies, White & Perry
The Panel were informed that the Firm had been the subject of a previous disciplinary finding dated 05 May 2010, when the charges proved included failures in the preservation of the security of client monies, failure to co-operate with RICS' requests for information and failure to respond to correspondence. The Firm was reprimanded, fined and made subject to conditions upon its registration.
The Panel noted the similar nature of the current charges it had found proved. The Firm had persistently failed fully to rectify its procedures for the handling and preservation of the security of client monies to the standard required by RICS. This represented a risk to the public and a disregard of its regulatory obligations to RICS.
The Panel decided that the matters were serious and required the imposition of a penalty. Neither a caution nor a reprimand would be sufficient.
RICS had previously given the Firm the opportunity to agree to a Consent Order to bring the Firm back into regulatory compliance, but it failed to respond. The Panel was of the view that, given the attitude demonstrated by the Firm by its failure to rectify its activities following the previous hearing, that neither undertakings, a conditional order nor a fine would achieve the desired purpose of regulatory sanctions and such sanctions would be likely to be ineffectual.
The Panel decided that, in the light of the Firm's persistent failure to comply with RICS Rules of Conduct, its continuing failure to ensure the security of client monies and the previous disciplinary findings against the firm of May 2010, the only appropriate penalty was removal of the Firm's registration for regulation.
Determination on Publication and Costs
The Panel determined that publication should take place in accordance with RICS' usual policy.
The Panel acceded to RICS' application for its costs, jointly in respect of both cases, in the sum of £3 677.00.
Mr Davies and the Firm, Davies White & Perry, have 28 days to appeal this decision in accordance with Rule 59 of the Disciplinary, Registration and Appeal Panel Rules.