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Disciplinary Panel Hearings

10 JAN 2008

Mr Trevor Hewitt - 09 January 2008

Case of
Mr Trevor Hewitt FRICS [1136794]

on
Wednesday 09 January 2008

at
RICS, Parliament Square, London, UK

Chairman                            
Anne Hinds MRICS           

Members
                            
Peter North (Lay)
Barrie Vincent FRICS

Legal Assessor
Tony Woodcock  

RICS Representative
Vicki Buckley


Charges

The formal charges are that: 

  1. Failed to operate your firm’s formal procedure for dealing with the complaint made by Massimo Comuzzi and Erica Prada on or about 27 October 2004 Contrary to Rule 11 of the Rules of Conduct 2004;
  2. Failed to operate your firm’s formal procedure for dealing with the complaint made by Colin Porteous on or about 24 May 2005 Contrary to Rule 11 of the Rules of Conduct 2004;
  3. Failed to act with due diligence on behalf of your clients Keiran and Elaine O`Donnell in that you did not produce your report of a survey undertaken on 16 June 2006 until 14 July 2006 well outside the seven to ten working days specified in the terms of business on your website Contrary to Rule 10 of the Rules of Conduct 2004;
  4. Failed to act with due diligence on behalf of your client Douglas Walters in that you did not produce your report of a survey undertaken on 24 May 2006 until 5 July 2006 which was after the date on which Mr Walters had had to exchange contracts for the purchase of his property Contrary to Rule 10 of the Rules of Conduct 2004;
  5. Failed to conduct yourself in a manner befitting membership of the Institution in that you were expelled from membership of the Chartered Institute of Building for misconduct on 3 September 2007 Contrary to Bye-law 19(1);
  6. Failed to operate your firm’s formal procedure for dealing with the complaint made by Christopher Marjoram on or about 11 July 2006 Contrary to Rule 11 of the Rules of Conduct 2004;
  7. Failed to conduct yourself in a manner befitting membership of the Institution in that a County Court Order dated 30 October 2006 in favour of Emma Youill has not been complied with Contrary to Bye-law 19(1).

Determination - on application for an adjournment

Findings with Reasons

We have before us today an application to adjourn today’s proceedings.  The application was made yesterday afternoon by email, very much at the latest stage of the proceedings.  The application is made on the basis of the member’s alleged ill health.  The Institution opposes the application.

The Panel has considered the application carefully.  In reaching its decision the Panel must balance the interests of the public and the reputation of the Institution on the one hand and the fairness to the member on the other.  The Panel has decided to refuse the application.

The reasons are:

Firstly, there are serious charges which need to be determined promptly, particularly as we believe the member may still be practising.

Secondly, the member has been offered a full opportunity to understand the Institution’s case and to prepare his own case.  He appears to have done nothing and, indeed, there is evidence that he was aware of this hearing well within the timescale required by the Institution; in fact, correspondence with the member extends to well over a year.

Three, despite a request by the Institution for medical evidence to support the application, none has been forthcoming even though it appears from the email that the alleged illness has afflicted the member for some time.

The interests of the public is, in our view, prevalent in this matter and the Panel will continue to hear the matter today.  We should add that, in the event of a decision against the member today, he will have full rights of appeal in accordance with the rules.

Determination

Findings with Reasons

The Panel has had referred to it seven charges of misconduct alleged against its member Trevor Hewitt, who is the sole principal of his firm Kimberworth Consulting Limited and is responsible for its affairs.

The member has not appeared today and his application for an adjournment was dismissed.  The Panel has, accordingly, heard the case in his absence as it is permitted to do so.  Notwithstanding the member’s absence, the Panel has been very careful to take into account the correspondence he has sent relating to these matters, both to the Institution and to the complainants to which the charges relate.

The Panel has treated each of the charges separately.  The Panel is, of course, aware that it is incumbent on the Institution to prove its case on the balance of probabilities. 

Three of the seven charges allege a breach of Rule 11 of the Rules of Conduct 2004 and specifically that the member did not operate his firm’s formal procedure for handling complaints.  Two of the seven charges allege a failure to act with due diligence in relation to the member’s clients’ affairs, specifically that reports were not submitted to clients within the reasonable time provided for the member’s procedures.  Two of the charges allege that the member has failed to behave in a manner befitting of this Institution, in one instance by being expelled from a professional regulator for serious failings akin to those now alleged against him and in the other by failure to meet a judgment debt which, again, stems from the manner in which he has performed his professional services.

We will not reiterate details of the charges which are found at page 1 of the Institution’s bundle and, similarly, we will not address each and every point made by Ms Buckley on behalf of the Institution.

Charge 1 alleges a failure to operate the firm’s complaints handling procedure in relation to its clients Massimo Comuzzi and Erica Prada.  It is clear to the Panel that the timescale provided for in the member’s complaints handling procedure were not met.  Serious complaints were made by the member’s clients by letter dated 27th October 2004 following provision to them by the member of the complaint handling procedure.  No response had been received by the 7th December 2004, which prompted the clients to report their dissatisfaction to the Institution.  No response was ever received and, so far as we are aware, there has been no resolution to date.  No explanation that we are prepared to accept has been received.  We reject the excuses proffered, not only in relation to this charge but also in relation to other charges, of computer malfunction as a valid excuse or indeed believable, not least because it was advanced only at a late stage.  We regret also the excuse that the work undertaken for the client did not fall within the jurisdiction of the Institution; it clearly did.  We therefore find the charge proved.

Charge 2 alleges a similar failure in relation to Colin Porteous.  It is clear from the papers before us that the member and his client were in dispute.  An agreement to mediate was reached.  Without any acceptable reason the member reneged on the agreement and to date, some 15 months after the appointment of the mediator, no further steps have been taken by the member to seek a resolution to the dispute.  Various excuses have been advanced, none of which have impressed the Panel as providing a defence to the charge.  We find the charge proved.

Charge 3 alleges a failure to conduct the affairs of Mr and Mrs O’Donnell with due diligence.  They were promised a report seven to ten days after the inspection of the property they proposed to buy.  It is clear from the papers before us that the report, such as it was, was received well beyond the time reasonably needed by Mr and Mrs O’Donnell.  What they in fact received was not what they commissioned and paid for.  The member again sought to excuse his inaction on the basis that his work did not fall within the jurisdiction of the Institution; it clearly did.  We find the charge proved.

Charge 4 alleges a similar failing in respect of the client Mr Walters.  On the papers it is clear that a building survey was commissioned by the client and the inspection took place on 24th May 2006.  What is also clear is that the client did not receive the report within the timescale provided by the member’s procedures.  After a good deal of chasing by the client and a suggestion by the member that the report had been lost in the post, the client received an email report, which turned out to be a draft and without the photographs promised.  A hard copy subsequently sent submitted the same deficiencies.  It was only on the 5th July 2006 that a report was received, by which time it was valueless to the client.  The member has claimed, as he has in a number of instances, that ill health impeded his activities.  However, he was engaged in other work at the time and the Panel are not impressed with his excuse.  We find the charge proved.

Charge 5 alleges conduct unbefitting a member of this Institution and relates to the member’s expulsion from the Chartered Institute of Building in relation to his conduct of his professional business.  One of the heads of complaint relates in fact to the issues raised in connection with Mr Walters, which we have dealt with above.  It would be an affront to common sense if the expulsion of a practitioner by one professional association was not regarded most seriously by the Institution, particularly when the reasons for the expulsion related, as it did, to very serious professional deficiencies.  We view the incident of expulsion as a clear breach of description of conduct unbefitting a member as found in paragraph 2, sections (b), (c) and (e) of the Rules of Conduct.  We find the charge proved.

Charge 6 again alleges a failure to adhere to the complaints handling procedure, this time in relation to a Mr Marjoram.  On the papers before us there was a simple and straightforward failure by the member to adhere to the recommendations of an independent reviewer of the complaint or to advance the handling of the complaint if he disagreed with the reviewer.  The management of the complaint simply stopped well short of the complaint handling procedure.  We find the charge proved.  The Panel also observes that there appears to have been earlier failure to comply with the complaints handling procedure in this matter.

Charge 7 again alleges conduct unbefitting a member of this Institution.  On the papers before us the member has clearly failed, indeed beyond a period of twelve months, to meet a County Court judgment debt.  It is also significant that the debt relates to the conduct of his professional activities much of the same nature of those complained of here.  No excuse has been proffered for this failure, no appeal was made against the judgment.  The Panel regards it as imperative that its members adhere to their civil obligations.  We view the failure as a clear breach of conduct unbefitting a member of this Institution as defined in paragraph 2(a), (b), (c) and (e) of the Rules of Conduct.  We therefore find the charge proved.

Previous
None

Determination on Penalty
The Panel has considered penalty.  The Panel accepts the representations of the Institution that each of the breaches is serious, both as to their substance and as to the sustained repetitive nature of the complaint handling procedure breaches, as to the expulsion from a like professional body and the failure, apparently without any concern, to comply with a court order.  Additionally, the frustration and exasperation of the member’s clients is almost unimaginable.  These were fundamental failures at one of the most important service levels for the member’s professional practice.  In the instances of failure of due diligence the member’s service was valueless, efforts at resolution were ignored or not taken seriously.

We have had full regard to the Institution’s sentencing policy and have reached the unanimous view that the appropriate sanction, both collectively and on each charge, should be one of expulsion.  It would be quite beyond the comprehension of the public at large and of our members if Mr Hewitt were to be permitted to remain as a member of the Institution and practice as such.

Determination on Publication and Costs
Regards the Institutions’ application for costs, we find that costs should be awarded against Mr Hewitt in the sum of £5,535.13.

This matter should be published on the Institution’s website and in the normal publications.  The Panel also requests that publication is made in each of the local areas where Mr Hewitt is alleged to have offices.

One other thing is that the Panel would request that the Institution writes to each body that Mr Hewitt is currently a member of and inform them of the outcome of this decision.