4 SEP 2008
Mr H Etches  and Howard Etches/Harwood Projects Limited Epsom, Surrey
03 September 2008
RICS, Parliament Square, London, UK
The formal charges are that:
Findings and Reasons
The Panel have considered whether the hearing today should go ahead in the absence of Mr Etches.
The Panel is satisfied that notification of the hearing has been properly given under Rule 23 and properly served under Rule 3.
The Panel has taken into account the listing questionnaire which whilst unsigned and undated was returned with Mr Etches letter of 26 August 2008.
The Panel do take into account his letter and also the note of his telephone conversation with an employee of this Institution on 18 August 2008 which encouraged a written response from Mr Etches.
The Panel took into account that Mr Etches says in his letter that he does not feel competent to attend because of his medication. However, there is no medical evidence from Mr Etches to support this and nothing from his doctor to indicate that he is unfit to attend.
The Panel has taken into account Mr Etches behaviour during the course of this investigation. He has persistently not engaged with the process since late 2007 and prior to that any engagement was sporadic.
Mr Etches has not specifically requested an adjournment and in the listing questionnaire he indicates that he will not attend, be represented and has no further papers. From his letter and his previous behaviour pattern the Panel concluded that he has voluntarily absented himself from these proceedings.
Since receipt of his letter of 26 August 2008 the Institution has written again to him and indicated to him the proceedings may go ahead.
The Panel has taken into account the possibility of reaching the wrong conclusion but notes that it appears that all the evidence is contained in the Panels bundle. The Panel has also concluded that in view of the seriousness of the charge it is in the public interest to proceed.
Findings with Reasons
Mr Howard Etches is alleged to have committed five breaches of the Rules of Conduct for Members 2007 and two breaches of the Transitional Rules for Registration of Firms 2007. He has not attended this hearing and is not represented.
The Panel considered each of the alleged breaches of the Rules in turn as follows:
The Panel finds Mr Etches is liable to disciplinary action in relation to each of the above breaches both individually and cumulatively. Mr Etches’ conduct in respect of each breach is liable to bring the Institution into disrepute because of the disregard of several of his obligations as a member of the profession. Further Mr Etches failed to adhere to by-laws and regulations governing members conduct.
Determination on Penalty
The Panel considered the RICS Sanctions Policy in reaching its conclusion as to the appropriate penalty in this case.
The Panel considered that the breaches found were very serious. The Panel find that there were a number of aggravating factors in this case. There was a risk of loss to any of Mr Etches’ clients because he was trading and undertaking surveying services whilst not carrying professional indemnity insurance. He is an experienced surveyor and a fellow of the Institution, he therefore has no excuse of inexperience or naivety. The Panel was also told that Mr Etches has a disciplinary history which included failure to have professional indemnity insurance, failure to supply a complaints handling procedure and failure to co-operate with the Institution. The Panel has also taken into account the number of breaches and that the failure to have professional indemnity insurance persisted this time over a considerable length of time during which Mr Etches was still practising.
The Panel noted that Mr Etches has at no point expressed any regret for his actions. It is also somewhat unfortunate that Mr Etches has taken few if any steps to rectify the breaches. Mr Etches has also failed singularly to cooperate with the Institution.
The Panel has considered whether there are any mitigating factors in this case. The Panel noted that in his letter of 26 August 2008 he informed the Institution that he was under medication and that he has felt under unbearable pressure for the last two years. It also noted that Mr Etches’ Insolvency Practitioner did inform the Institution of his impending IVA. He also tells us that there is some run off cover for Harwood Projects Limited. However the Panel noted that he did not himself tell the Institution that his company was going into compulsory liquidation which is a grave inconsistency.
In relation to all the breaches the Panel has concluded that a caution, reprimand, undertaking or condition on membership would not be appropriate in this case due to the seriousness of the breaches. These sanctions would not adequately demonstrate that the Panel takes firm action in order to protect the public interest and promote regulatory compliance. Nor would they sufficiently deter Mr Etches or other members or firms from future non-compliance. Given Mr Etches’ history of failure to enter into undertakings and his repeated breaches of the Institution’s regulations the Panel did not think he could be relied upon to comply with undertakings or conditions.
The Panel is mindful of the fact that Mr Etches has had some financial difficulties and the effect which a fine might have upon him. However it has also to take into account the need to impose proper sanctions that deter both Mr Etches and other member of the Institution from future breaches and reassures members of the public that the Disciplinary Panel takes these types of breaches seriously. The panel considers that the sanctions set out below are proportionate given the circumstances.
In relation to the first breach, the Panel imposes a fine of £2,500 and expulsion from membership of the Institution. This is not the first time that Mr Etches has failed to have professional indemnity insurance and therefore shows that he has not learnt from his previous appearances before the Professional Conduct Panel in 2005 and a Disciplinary Board in 2006. A fine is particularly appropriate because Mr Etches had benefited financially from this breach by avoiding payment of insurance premiums.
In relation to the second breach, the Panel imposes a fine of £1500 and expulsion from membership of the Institution. This is not the first time that he has faced disciplinary action in relation to a failure to supply a complaints handling procedure. The sanctions imposed at previous Disciplinary Hearings do not appear to have had the desired deterrent effect. In addition the Panel took into account the detrimental effect on the client of his failure to provide any information in response to her complaint despite promises to do so.
In relation to the third breach, the Panel imposes a fine of £500 and expulsion from membership of the Institution. Although there is a degree of mitigation in relation to this particular breach in that the Institution was informed of the impending IVA, the fact of his personal insolvency represents incompetence in the management of his personal affairs that would not be expected in a member of the Institution and undermines public confidence.
In relation to the fourth breach, the Panel imposes a fine of £1500 and expulsion from membership of the Institution. There was a risk to Mr Etches clients because he managed his company affairs in a manner that fell short of the standards that the public could reasonably expect from a competent professional.
In relation to the fifth breach, the Panel imposes a fine of £1500 and expulsion from membership of the Institution. A self regulatory system relies on members willingly cooperating with the Institution whenever it is required. Mr Etches blatantly ignored this obligation.
In relation to the sixth and seventh breach the Panel imposes a fine of £2500 for each breach and expulsion from membership of the Institution. The success of the Institution’s new regime is entirely dependent on the timely and proper registration of firms where required in order to properly regulate the profession and protect the public interest. The level of the fine imposed reflects how seriously the Panel regards Mr Etches’ disregard of the importance of registration.
Determination on Publication and Costs:
In relation to costs the Panel make an order for costs in the sum of £6,714.00. Although Mr Etches may have some financial difficulties the Panel took into account the fact that expulsion from membership of the Institution does not prevent him from earning a living.
This decision will take effect immediately.
This decision shall be published in accordance with the Regulatory Board’s Publication Policy.
Mr Etches has a right to appeal this decision within 28 days in accordance with the Disciplinary, Registration and Appeal Panel Rules 2008.