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Disciplinary Panel Hearings

31 JUL 2008

Mr Martin Clarke - 30 July 2008

Case of
Mr Martin Clarke [053221]

on
Wednesday 30 July 2008

at
RICS, Parliament Square, London, UK 

Chairman                                            
Mary Symes         

Members                                            
Peter North (Lay)
Roger Wilyman FRICS

Legal Assessor
Tony Woodcock  

RICS Representative
Geoff Williams

Charges

The formal charges are that: 

1.  (Contrary to Bye-Law 19(1)) you have conducted yourself in a manner unbefitting a Chartered Surveyor in that you delivered to the Institution the Certificate required by the Members’ Accounts Regulations for the year ended 31 December 2001 stating that you had not held clients’ funds during the year in question when you had in fact held such funds for the benefit of your then client Searchmap Ltd.

2.  (Contrary to Bye-Law 19(1)) you have conducted yourself in a manner unbefitting a Chartered Surveyor in that you delivered to the Institution the Certificate required by the Members’ Accounts Regulations for the year ended 31 December 2002 stating that you had not held clients’ funds during the year in question when you had in fact held such funds for the benefit of your then client Searchmap Ltd.

Determination

Determination on application for adjournment

Having considered the papers tabled today and the arguments put forward on behalf of the Institution by Mr Williams, the Panel has decided not to grant the request for an adjournment and to hear the case today. 

The Panel’s reasons for this decision are as follows:

  • Today’s date was an agreed date at Mr Clarke’s convenience.  This date has been confirmed since the 8 May, 2008, following an initial adjournment at his request.
  • Mr Clarke has had ample opportunity to provide to the Institution and the Panel  papers.  He has not even indicated the nature of his defence and failed to cooperate with the Institution and its procedural rules.
  • In his e-mails dated 22 and 25 July on page 2 and 4 of the tabled bundle, Mr Clarke tells us that the grounds for requesting an adjournment are his father’s illness and the non availability of counsel.  We have before us an e-mail from the clerk to Mr Stafford of counsel, which we note was copied to Mr Clarke’s solicitors, telling us that Mr Stafford was not available.  However, the lack of response from solicitors and no other arrangements being made by counsel, despite ample opportunity to do so, suggest that instructions have possibly not been received by either solicitors or counsel.  Even if they have, the Panel sees no reason why – as is the usual practice – alternative counsel could not have been instructed in the time available.  
  • Mr Clarke also produced a letter from a General Practitioner dated 28 July 2008 stating that he is under a lot of stress.  Whilst the Panel is sympathetic to his personal circumstances, it has a duty to balance the public interest with the need to be fair to Mr Clarke.  It also has to take into account the serious nature of the charges, the facts of which are not complex and the need to deal with the matter expeditiously. 
  • The Panel emphasizes its view that Mr Clarke has not engaged fully in the process, failed to cooperate with the Institution and has made not one, but two late applications for adjournment.  The Institution has tried throughout to engage Mr Clarke fully in the process.
  • The Panel also notes that Mr Clarke has a right of appeal and can ask for a re-hearing under the Rules. 

On these grounds an adjournment is refused.

Findings with Reasons

The Panel finds the facts proved in respect of both charges.

The regime in operation during 2000 to 2002was reliant upon a system of self certification.  Mr Clarke certified for the year ended 31 December 1999 that he held clients’ money by submission of the document found at page 4 of the bundle dated 1 September 2000.  The accompanying accountant’s report is found at pages 6 and 7 of the bundle and states, on page 7, that the client account was closed on the 17 May 2000. 

Following this, in the years ended 2001 and 2002, Mr Clarke certified to the Institution that he did not receive or hold client’s money as defined in the regulations.  The Documents showing this can be found at pages 11, 12, 14 and 15 of the bundle.  In fact, from December 1999 to September 2004 Mr Clarke was acting on behalf of Searchmap Limited (“Searchmap”) collecting quarterly rents.  Evidence of this can be seen from a letter on page 16 and 17 of the bundle from Kerman & Company, solicitors for Searchmap, together with the Particulars of Claim found at pages 27 to 29 of the bundle as confirmed by the Summary Judgment found at pages 30 and 31 of the bundle.  There is, therefore, clear evidence that Mr Clarke was holding money for clients – rent for Searchmap.

Further, in response to a request from the Institution, Kerman and Company on behalf of Searchmap confirmed that their clients were not signatories to the account in which the rent was held.  This is evidence that Mr Clarke had exclusive control over the funds.

The Panel finds that Mr Clarke held money on behalf of clients that the money did not belong solely to Mr Clarke and that Mr Clarke had exclusive control over the funds. 

Mr Clarke, therefore, should have declared that he held clients’ funds during years ended 31 December 2001 and 31 December 2002.  The Panel finds the charges proved.

Determination on Penalty

In considering the appropriate sanction the Panel has taken into account the statement of the Royal Institution of Chartered Surveyors Disciplinary Sentencing Policy dated 1 January 2004, which applies to these proceedings.  

The Panel regards the breaches individually as very serious.  The public expects from members of this profession standards of behaviour that enable them to use surveyors services with complete trust and confidence.  When those standards are not met it is incumbent on Panels to ensure that any sanction  imposed both deters the member concerned and other members from similar behaviours and demonstrates to society that the Institution takes firm action to promote compliance amongst its members.  In this case the Panel found multiple breaches of the standards required.

Mr Clarke had a cavalier attitude towards compliance.  In the years in question the Institution was reliant upon accurate certification being provided by the member.  By denying that he held clients’ money, Mr Clarke misled the Institution, thus obviating the need for independent accountancy scrutiny of his management of client monies and thus depriving the public of the protection that that affords.  This action fell way below the standards of behaviour the public should be able to rely on from a Chartered Surveyor.   It was behaviour at the worst end of conduct unbecoming.

Mr Clarke has never offered any substantive explanation, or expressed any regret or apology in any of the papers before the Panel.  His whole conduct has been fundamentally incompatible with the standards that the Institution sets for its members or his continued membership of this body.  His deplorable misstatement on two consecutive years as to the non holding of clients’ monies amounts to a grave failure of his professional activities and led to the findings in respect of the two breaches.

The Panel in considering its sanction also took note of the lack of his cooperation with the Institution and his lack of input into the hearing today, which was specifically arranged to accommodate all his requests. 

The Panel considered that a caution or reprimand or a severe reprimand were wholly inappropriate given the seriousness of the breaches. 

The Panel finds in respect of charge 1 that Mr Clarke should be expelled from the Institution forthwith for the reasons above.

The Panel finds in respect of charge 2 that Mr Clarke should be expelled from the Institution forthwith for the reasons above.

Determination on Publication and Costs

Publication

These findings should be published in accordance with Rule 70(b).

Costs

An application was made for costs in the sum of £10,000 which appears to this Panel to be reasonable.    

The Panel awards costs in respect of £10,000 to the Institution having duly considered the submissions made and taking into account paragraph 29 of the statement of the Royal Institution Chartered Surveyors Disciplinary Sentencing Policy.

Mr Clarke has 21 days to appeal starting with the day on which this decision is sent by Special Post.