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Procura

Appeal Panel Hearings

24 SET 2008

Mr Douglas Elliot - 23 September 2008

Case of
Mr Douglas Eliot FRICS [ 051344 ]

on
Tuesday 23 September 2008

at
International Centre for Arbitration and Mediation, London, UK

Chairman                                           
Lee Gledhill
                                       
Members
    
Lisa Ball (Lay)                                      
Peter Defoe FRICS

Legal Assessor             
Sarah Ellson       

RICS Representative
Vicki Buckley

Charges

The formal charges are that you being a partner of a firm offering surveying services to the public, namely Douglas Elliot and Associates:

  1. Failed to operate your firm`s formal procedure for dealing with the complaint made by Robin Sewell and Elizabeth Turner on or about 20 March 2007 Contrary to Rule 11 of the Rules of Conduct 2004
  2. Failed to co-operate with an RICS officer investigating a complaint made against you in that you did not respond to letters dated 24 April, 15 May, 5 June, 25 June and 28 August 2007 Contrary to Rule 14 of the Rules of Conduct 2004
  3. Failed to conduct yourself in a manner befitting membership of the Institution in that a County Court Order dated 25 July 2007 in favour of Robin Sewell and Elizabeth Turner has not been complied with Contrary to Bye-Law V(2)(1).  

 Determination

The Panel has carefully considered and reviewed the decision of the Disciplinary Panel made on 16 April 2008.  At the outset of today’s hearing we determined that the case should be considered by way of a review.  Mr Nicholls, on behalf of Mr Elliot and Mr Pugh, outlined the grounds of appeal and indicated that the Panel were asked to focus on the sanction of expulsion made against Mr Elliot and the level of fine imposed on Mr Pugh.

The Panel has accepted the advice of its Legal Assessor that the Rules in relation to an appeal by way of review anticipate that further evidence can be adduced in relation to mitigation and therefore must be part of the material considered by the Panel when reaching its decision.  The Panel has borne in mind the advice that, before interfering with the decision of the Disciplinary Panel it should be satisfied that that the decision was wrong.  The Appeal Panel was advised that this might be the case when the Disciplinary Panel had failed to take into account something which it ought to have taken into account when reaching its decision.

The Panel has today listened carefully to the additional evidence and submissions given by and on behalf of Mr Elliot and Mr Pugh.

Our decision in relation to Mr Elliott:

The Panel is not satisfied that any part of the previous decision of the Disciplinary Panel was wrong and therefore upholds the decision made on 16 April 2008.

Our decision in relation to Mr Pugh:

The Panel is not satisfied that any part of the previous decision of the Disciplinary Panel was wrong and therefore upholds the decision made on 16 April 2008.

Our reasons are as follows:

The Panel notes that the Disciplinary Panel imposed an order for expulsion against Mr Elliot in relation to charge 1 and charge 2.  Charge 1 related to a failure to operate the firm’s formal complaint procedure and Charge 2 related to a failure to co-operate with the RICS.

The Panel today has heard mitigation evidence in relation to these failures.  It has been informed of personal difficulties that took Mr Elliot away from his practice and of difficulties in relation to the safe delivery of post which had consequences for the proper handling of complaints.  The Panel has been told about procedures that the firm have now implemented to improve the handling of complaints and post and to ensure matters are attended to in Mr Elliot’s absence.  However the Panel are not satisfied that Mr Elliot has fully understood the importance of the need to satisfy us today that he now operates safe systems of practice such that the failures which arose in the case would not arise again.  The Panel remains concerned about how the improved procedures will actually operate given that Mr Elliot may continue to have to be absent from the firm, and that the Panel needs to be confident that Mr Pugh would be in a position to deal with matters such as complaints.

The Panel note that the previous Panel took into account Mr Elliot’s previous disciplinary history with the RICS which demonstrated a similar history of failing to deal with complaints and the RICS.    The Panel consider that this was highly relevant to the determination of expulsion.  The Panel are concerned that Mr Elliot has paid only lip service to his obligations in relation to these important matters which he appears previously to have ignored.  It is fundamental, given that the Panel were told that the business was effectively Mr Elliott, albeit with the support of junior staff, that these matters should have been properly attended to.

The Panel has had regard to the testimonials submitted today and have heard how the order may impact on Mr Elliot and his business.

However the Panel does not accept that the additional material considered today is such as to conclude the previous decision in Mr Elliott’s case was wrong.

In relation to Mr Pugh the Committee have not heard evidence or submissions that would lead it to conclude that the fine of £500 was wrong.  The Panel  has borne in mind that the Disciplinary Panel had a power to impose a fine of up to £5,000.

The Appeal Panel directs that the appeal decision be published on the same basis as before.

Both appeals are therefore dismissed.

Determination on Publication and Costs

The Panel directs that Mr Elliott should pay costs in the order of £1,874.15 and that Mr Pugh should also pay costs in the order of £1,874.15.  The Panel notes that the appeals have been dismissed and that the usual approach is that costs should follow the event.  Despite having heard submissions that the firm will now be financial difficulties the Panel is not persuaded to depart from this approach as the RICS have been put to the costs of presenting and holding an appeal in this matter which has been dismissed.