Disciplinary Panel Hearing Case of Mr Lewis Gordon MRICS, Belfast, BT8 Mr Mark O Kane MRICS, Co. Down, BT32 Represented by

Transcription

1 Disciplinary Panel Hearing Case of Mr Lewis Gordon MRICS, Belfast, BT8 Mr Mark O Kane MRICS, Co. Down, BT32 Represented by Connor Heaney Solicitors Mr William Jonathan Millar FRICS, Belfast, BT1 On Wednesday 25, Thursday 26 & Friday 27 October 2017 At 6 New Street Square, London EC4M Panel Julian Weinberg (Lay Chair) Chris Boothman (Lay Member) Ian Hastie (Surveyor Member) Legal Assessor Peter Steel RICS Presenting Officer James Lynch

2 Audio Technician Jamie Kim Hearing Officer Jae Berry The formal charges (as amended) are: Mr Gordon: 1. When providing a valuation of a residential property, namely Terrace Hill, Ballynahatty Road, Belfast ( the Property ), first on 03 January 2008 and again on 22 August 2008, you failed to carry out your professional work with due skill, care and diligence and with proper regard for the technical standards expected of you Contrary to Rule 4 of the Rules of Conduct for Members 2007 Particulars a) On 03 January 2008 you valued the Property at 4.5 million and on 22 August 2008 you valued the property at 5 million. b) The file showed inadequate analysis of comparable properties or rationale to support those valuations.

3 c) The High Court of Northern Ireland determined in case number [2013] NIQB 116, that both valuations were a significant overvaluation such as to amount to a breach of the firm s duty to exercise reasonable care, competence and skill. You have therefore breached RICS Bye-law B5.2.1 (b) and are liable to disciplinary action under RICS Bye-law B5.2.2 (b) and/or (c) Mr O Kane: 1. When providing updating a valuation of a residential property, namely Terrace Hill, Ballynahatty Road, Belfast ( the Property ), first on 21 January 2009 and again on 23 September 2009, you failed to carry out your professional work with due skill, care and diligence and with proper regard for the technical standards expected of you Contrary to Rule 4 of the Rules of Conduct for Members 2007 Particulars a) On 21 January 2009 in response to a request from Aurora Leasing Limited to provide an update on Mr Gordon s valuation of 22 August 2008, you valued provided an updated valuation of the Property at 5 million. You cited the granting of planning permission for refurbishment of a stable block as being sufficient to offset any diminution in value due to deteriorating market conditions. b) On 23 September 2009, in response to a request from Aurora Leasing Limited to consider whether the value of the property had fluctuated since your valuation of 21 January 2009, you confirmed that the value of the property remained at 5 million.

4 c) The file showed inadequate analysis of comparable properties or market conditions or rationale to support those valuations. d) The High Court of Northern Ireland determined in case number [2013] NIQB 116, that both valuations were a significant overvaluation such as to amount to a breach of the firm s duty to exercise reasonable care, competence and skill. You have therefore breached RICS Bye-law B5.2.1 (b) and are liable to disciplinary action under RICS Bye-law B5.2.2 (b) and/or (c) Mr Millar: 1. When countersigning a valuation of a residential property, namely Terrace Hill, Ballynahatty Road, Belfast ( the Property ), prepared by Lewis Gordon, first on 03 January 2008 and again on 22 August 2008 you failed to carry out your professional work with due skill, care and diligence and with proper regards for the technical standards expected of you. Contrary to Rule 4 of the Rules of Conduct for Members 2007 Particulars a) You countersigned the valuations carried out by Lewis Gordon on 03 January and 22 August 2008, thus confirming that they were accurate. b) The file showed inadequate analysis of comparable properties or market conditions or rationale to support those valuations.

5 c) The High Court of Northern Ireland determined in case number [2013] NIQB 116, that all four valuations were a significant overvaluation such as to amount to a breach of the firm s duty to exercise reasonable care, competence and skill. You have therefore breached RICS Bye-law B5.2.1 (b) and are liable to disciplinary action under RICS Bye-law B5.2.2 (b) and/or (c) 2. When overseeing a updated valuations prepared by Mark O Kane first on 21 January 2009 and again on 23 September 2009, you failed to carry out your professional work with due skill, care and diligence and with proper regards for the technical standards expected of you. Contrary to Rule 4 of the Rules of Conduct for Members 2007 Particulars a) You approved the valuations carried out by Mark O Kane on 21 January 2009 and 23 September thus confirming that they were accurate. b) Your The file showed inadequate analysis of comparable properties or market conditions or rationale to support those valuations. c) The High Court of Northern Ireland determined in case number [2013] NIQB 116, that all four valuations were a significant overvaluation such as to amount to a breach of the firm s duty to exercise reasonable care, competence and skill. You have therefore breached RICS Bye-law B5.2.1 (b) and are liable to disciplinary action under RICS Bye-law B5.2.2 (b) and/or (c)

6 Introduction 1. The charges relate to an instruction in January 2008 to Colliers International Belfast Ltd ( Colliers ) to value a property called Terrace Hill ( the property ). The owners of the property intended to use it as security for a loan for their business. Colliers conducted 2 valuations of the property, on 3 January and 22 August Subsequently on 21 January and 23 September 2009, Colliers confirmed the last valuation ( 5 million) in correspondence with the lenders, despite what was by then a falling property market. 2. The business subsequently defaulted on the loan. The lenders (Aurora Leasing Limited) attempted to enforce their security over the property, but were unable to as the owners had by that point been declared bankrupt and there was insufficient equity in the property to discharge the first mortgage over it and the loan of 901,000. In due course the lenders brought a Court action against Colliers to recover the balance of the loan. 3. The High Court found that the valuations undertaken by Colliers were a significant overvaluation such as to amount to a breach of the Defendant s duty to exercise reasonable care, competence and skill. The Court assessed that the in April 2009 the value of the property had been between 3 million and 3.75 million. The Court held that Colliers were liable to the lenders for the value of the loan, less any payments received from the owners plus interest and costs, with a 20% deduction for contributory negligence. 4. The matter came to the attention of RICS as a result of extensive press coverage of the case. RICS conducted an investigation, which resulted in these proceedings. Preliminary matters 5. Mr Gordon did not attend the hearing and was not represented. The Panel was referred to the service of the papers. The legal assessor advised the Panel that the provisions as to service

7 set out in rule 23(b) of the Disciplinary, Registration and Appeal Panel Rules of 1 April 2009 have been complied with, as the notice of the hearing, with the other documents required to be supplied, were sent by special post to Mr Gordon on 25 May 2017, so giving more than the required 28 days notice of this hearing. There had been subsequent correspondence with Mr Gordon that had indicated he was aware of the rearranged hearing dates. Accordingly the panel found that the notice of hearing was properly served. 6. The Panel next considered whether to proceed in the absence of Mr Gordon. The legal assessor s advice was sought and accepted. The panel was referred to the case of R-v-Jones [2002] UKHL 5, Tait v The Royal College of Veterinary Surgeons (RCVS) [2003] UKPC 34 and GMC v Adeogba [2016] EWCA Civ There is a public interest in conducting professional regulatory proceedings expeditiously, and the recollection of witnesses may be impaired by delay. The Panel must consider matters such as whether the person had requested an adjournment, whether the person would be likely to attend any adjourned hearing, or whether, in all the circumstances, Mr Gordon had voluntarily absented himself from the hearing. A decision to proceed in the absence of the person facing the allegation should be taken with great care, and caution. The risk of prejudice to the individual must be carefully weighed, and the conclusion that someone has deliberately and voluntarily absented requires the Panel to find that there is a clear and unqualified - unequivocal - intention not to attend. 8. In this case, Mr Gordon sent an to the Hearing Officer on the morning of 25 October 2017 timed at 10.57am in which he said: Thank you for your time on the phone and apologies for delaying the process. I would like to advise my position as follows: - I accept the charges that I may be liable to RICS disciplinary action (sic) - I will be unable to attend the hearing today and understand the panel will proceed in my absence.

8 - Regarding the charges I would like the panel to be made aware that following my departure form Colliers I believe my file was RICS Red Book compliant. I am concerned that over the course of time the file has been through two office moves and reopened on several occasions as a result of the High Court Case and the file the RICS received may not fully represent the file that I left in 2008 after leaving Colliers. Please draw their attention to my written statement in this regard. - With the benefit of hindsight I can see that the the two valuations could be deemed to be excessive, however I would like the panel to take into consideration the unprecedented market we were in at the time. I trust this is sufficient to allow the panel to proceed. 9. It was clear from this that Mr Gordon had voluntarily waived his right to appear at the hearing and expected the hearing to go ahead without him. The other two respondents were present and wished to proceed, as was a witness on behalf of RICS. Mr Gordon had provided written submissions to the panel in advance of the hearing. The panel considered in all the circumstances that it was right to continue to hear the case in Mr Gordon s absence. 10. Mr Lynch on behalf of RICS applied at the outset of the hearing to amend the allegation against Mr O Kane, firstly to make it clear that on 21 January 2009 he had been updating the valuation previously provided by Colliers, rather than conducting a fresh valuation; and secondly to delete the reference to sub-paragraphs (b) and (c) of Bye-law B These amendments were agreed by Mr O Kane. The panel, having accepted the legal assessor s advice concluded that they could be made without injustice in accordance with Rule 41(h) of the Disciplinary, Registration and Appeals Panel Rules 2009 and allowed the application. 11. During the course of the hearing, it became apparent that the corresponding allegation (allegation 2) against Mr Millar (relating to his oversight of Mr O Kane) should also be amended. This was agreed by Mr Millar and again the panel concluded that the amendment should be allowed. 12. Lastly, the panel corrected a number of minor typographical errors in the charge.

9 Admissions 13. Mr Gordon indicated in his of 25 October 2017 that he accepted the charges against him. The panel therefore found the facts of the charge proved. 14. At the outset of the hearing, Mr O Kane also admitted the charge against him as amended and that this made him liable to disciplinary action. Again the panel found the facts of the charge proved against him as a result. 15. Mr Millar admitted Particulars 1(a) and (c) of allegation 1, the stem of allegation 2 and particulars 2(a) and (c). He did not admit the stem of allegation 1 or particulars 1(b) and 2(b). Evidence 16. The Panel has considered in detail the following documents: - RICS skeleton argument; - RICS case summary and bundle of documents, running to 380 pages; - RICS supplementary bundle running to 130 pages; - Mr Gordon s submissions; - the supplementary bundle on behalf of Mr O Kane consisting of 7 pages; and - the statement of Mr Millar and exhibit WJM 1 3 dated 25 October The panel heard oral evidence from Mr Graham Stockey, FRICS, IRRV (Hons), a Principal Regulatory Surveyor employed by RICS called by the RICS presenting solicitor, Mr Lynch. The panel also heard evidence from Mr Millar on his own behalf.

10 Burden and standard of proof 18. The RICS is required to prove the allegations to the civil standard; that it is more likely than not that any event material to those allegations occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence that the Panel might require to prove it. The panel reminded itself that there was no requirement for Mr Millar to prove anything. The Panel has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply. It bears in mind in particular the rights of all the respondents to a fair trial and to respect for their private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts admitted or found proved gave rise to liability to disciplinary action is a matter for the Panel s judgment. Application by Mr Millar 19. Prior to announcing its findings on facts and liability to disciplinary action, Mr Millar made an application at the commencement of the second day s hearing to be allowed to make further closing submissions and submit a written note of them. He felt that there were facts he had not properly addressed and that his note would go some way to addressing a number of evidential issues. He stated that not being legally represented, he lacked the necessary legal skills to adequately inform the panel of facts and that he wished to make more succinct submissions. 20. Both Mr Lynch and Mr Heaney, who were aware of the nature of the proposed further submissions, opposed the application. They informed the panel that Mr Millar had had ample time to prepare for this case and that it was his choice not to be legally represented. Both Mr Lynch and Mr Heaney particularly noted that being unrepresented, both the panel and the legal assessor had gone to great lengths to ensure that his defence could be presented as completely as possible. They both stated that if the application were allowed, they would wish to have the opportunity to make further submissions in response.

11 21. The panel accepted the advice of the legal assessor and noted that there was nothing in RICS rules or in case law that prohibited Mr Millar making further submissions at this late stage. However, the panel was mindful that prior to retiring to consider its determination, Mr Millar was given every opportunity to present his defence and make full closing submissions. The panel was understanding that those submissions might have been presented differently by a legal representative, but the panel understood this and had allowed for this in reaching its decision. The panel considered there was no unfairness to Mr Millar as it had taken full account of his written statement and all the evidence and had made appropriate allowances for his presentation. In the circumstances, the panel refused Mr Millar s application. Findings of fact in respect of Mr Millar Particulars 1(b) and 2(b) 22. Mr Stockey on behalf of RICS indicated that having reviewed the file he could find nothing that in his opinion supported any of the four valuations in question. While the file contained some information on comparables, none of them were adequate to justify either the first valuation (of 4.5 million) or the subsequent valuations (at 5 million). There was no analysis of the comparables or linkage with the valuations given. Consequently there was nothing to justify the inferential leap from the top comparable (of 4 million) to the 4.5 million of the first valuation. Neither the first or second valuations complied with the requirements of the Red Book regarding inspection and investigation, relevant comparable evidence and analysis. RICS had asked for the full file and had understood from Mr Millar that he had supplied it. 23. Mr Millar told the panel that he was one of three directors at Colliers in a position to supervise. He had not in fact looked at the file before countersigning either of the first two valuations. He said that he would have read the reports and discussed them with Lewis Gordon. He accepted that the supervision procedures adopted by Colliers were inadequate.

12 24. Similarly, though he was aware of Mr O Kane s subsequent work on the file, he had not been actively involved himself; rather he had failed to stop what was going on. As to the completeness or otherwise of the file, Mr Millar stressed it was not his file and so he could not rule out the possibility that documents were missing from it or comment on what it contained. 25. The Panel found the evidence of Mr Stockey in respect of both particular 1(b) and 2(b) to have been credible and consistent. It also accepted his evidence that neither valuation was Red Book compliant. There was in fact no evidence to contradict Mr Stockey s opinion. Mr Millar candidly accepted in his statement and his evidence to the panel that he had not reviewed the file at any point. 26. Further, both Mr Gordon and Mr O Kane, who were directly responsible for the file, had accepted by their admissions that there was inadequate analysis on the file of comparable properties or market conditions or rationale to support the valuations. Since he had not reviewed the file at the time, Mr Millar was not in a position to contradict what they had admitted. 27. The panel therefore found both these particulars proved. Stem of allegation From the findings of the panel in respect of particular 1(b) and Mr Millar s previous admissions in respect of particulars 1(a) and (c), the panel concluded that the stem of allegation 1 was also made out. Mr Millar had countersigned the relevant valuations with at best limited knowledge of the contents of the file. The finding of the High Court in the case brought by Aurora Leasing Limited clearly demonstrated that the valuations were negligent and had led to a significant loss to the lender. 29. Mr Millar clearly recognised that the system operated by Colliers was inadequate as demonstrated by the fact that the firm had now implemented revised procedures for countersigning reports. He accepted in his statement and in evidence to the panel that he

13 should have looked at the file. This was unquestionably a failure to comply with Rule 4 of the Rules of Conduct for Members 2007 and a serious falling below the standards required of members. In consequence the panel found the stem of allegation 1 proved. Liability to disciplinary action Submissions by RICS presenting solicitor 30. Mr Lynch on behalf of RICS submitted that the allegations admitted by all three respondent Members were sufficiently serious to make them liable to disciplinary action. Rule 4 required Members to act with a level of competence. The Red Book is a key plank of the regulatory structure and assured members of the public that valuations would be robust and fit for purpose. A single failure to comply might not necessarily give rise to liability to disciplinary action, but in this case there had been repeated failures which had led to a sizeable loss to the lender, a High Court finding of negligence against the firm and attendant adverse publicity for the profession. Submissions on behalf of Mr O Kane 31. Mr Heaney on behalf of Mr O Kane accepted that the admitted charge rendered Mr O Kane liable to disciplinary action. Submission by Mr Millar 32. Mr Millar submitted that the failings in this case were a corporate matter rather than a personal matter. He accepted that the countersigning process did not address RICS requirements but even if there had been no countersignature the reports would still have gone out. As the panel had heard, Colliers had amended its system since then.

14 33. On the basis of the facts found the panel had to decide whether or not the respondents were liable to disciplinary action. In coming to its conclusion the panel accepted the advice of the legal assessor. This question is one for the panel s judgment. 34. Mr Gordon and Mr O Kane had both accepted that the charges, which they admitted, made them liable to disciplinary action. The panel independently decided that the charges admitted and found proved made them and Mr Millar liable to disciplinary action. 35. The valuations given in this case had been relied on by the lender to make a sizeable loan. Any surveyor providing a report on which others rely must ensure that the valuation stands up to scrutiny and is adequately researched and evidenced. That is the essential purpose of valuation reports. The failures in this case resulted in a serious loss to the lenders and represented a serious breach of the standards to be expected of members. Decision on sanction, costs and publication 36. The Panel was informed that there had been no previous disciplinary findings against any of the respondent members. Mitigation 37. The panel noted that Mr Gordon had ed the Hearing Officer before the start of the second day of hearing to indicate that he did not intend to participate in the hearing that day. The panel did not therefore receive any further submissions from him. 38. Mr Heaney spoke in mitigation on behalf of Mr O Kane. He invited the panel to consider Mr O Kane s statement and the attached testimonial letters from Mr Adgey and Mr McKenna which spoke to his surveying and personal qualities. He said that Mr O Kane had engaged

15 fully with the disciplinary process throughout (and the panel noted that RICS had acknowledged this). Mr O Kane had made admissions at an early stage and accepted his failings in the course of the case, in particular that he should have prepared a fresh valuation of the property. Mr O Kane was clear that he had taken direction from Mr Millar in his work on the file. He submitted that Mr Millar was the dominant force in the transaction as the senior person and was personally acquainted with the owners of the property. 39. Mr Heaney asked the panel to note that Mr O Kane was not seeking to absolve himself of responsibility for the file however. He had candidly accepted his part by the admissions he had made. He remained embarrassed at the failings this case exposed. Further, he accepted that he not complied with proper professional standards in the matter and that his actions had contributed to the loss suffered. Mr O Kane also accepted that the adverse publicity surrounding the trial had a potentially detrimental effect on the standing of the profession as a whole. 40. However, at the time of these events, Mr O Kane was an employee and relatively inexperienced. He had not benefitted in any way from the matter. The lenders were a professional commercial entity and not therefore a vulnerable client. They had successfully obtained compensation for their loss. Mr O Kane had, other than this incident, an entirely unblemished professional career. His behaviour in respect of these proceedings had demonstrated his insight and a clear commitment to learn from his failings. He had had no plans in the short or medium-term to engage in valuations and had not done so in his new practice. Mr O Kane accepted that it would be entirely appropriate for RICS to seek to exercise a degree of monitoring or control over the possibility of his returning to valuation work, by imposing an appropriate condition. 41. Mr Millar spoke on his own behalf in mitigation. He was very regretful about the Terrace Hill episode which had led to a long period of reflection on his part. The matter had led to the valuing company ceasing to trade. He recognised and accepted RICS analysis of the failings on the file. The methodology employed by the Valuations Team had been unacceptable.

16 42. Mr Millar asserted, as had Mr Heaney on behalf of Mr O Kane, that the case did not demonstrate a risk to the general public. That said, he enormously regretted that the lenders had lost money and been put to inconvenience. 43. Mr Millar said that his career to date had been unblemished. He was invited to RICS CPD events as a keynote speaker. He had not had any other professional negligence findings against him. He alone had chosen to give evidence to the panel, unlike the other two members. 44. Lastly, the compliance procedures now put in place by Colliers were much improved. Mr Millar said he was not involved in valuations and would be comfortable in RICS imposing appropriate restrictions on his remaining a valuer. 45. The panel bore in mind that the purpose of sanctions is not to be punitive, although it may have that effect. The purpose of sanctions is to declare and uphold the standards of the profession, to safeguard the reputation of the profession and of RICS as its regulator and to protect the public. Sanctions must be proportionate to the breach and all the circumstances, and a decision should be reached having taken into account any mitigating and/or aggravating factors. 46. The panel accepted the advice of the legal assessor delivered in open hearing. It also took account of the indicative sanctions guidance of RICS. It considered the mitigating and aggravating factors of the case and took careful account of the submissions it had received from Mr Heaney on behalf of Mr O Kane and Mr Millar. Sanction 47. In the case of all three members, the panel considered that the following aggravating features were present: - The case demonstrated serious failings that had caused substantial financial loss; and

17 - These were repeated failings in that they related to multiple valuations over several months, rather than a single isolated error. 48. Similarly, the following mitigating features applied to all three members: - None had any previous disciplinary history; - None of the members had made any personal gain from their actions; and - There was no evidence before the panel of any repetition of similar behaviour by any of the three members. 49. The panel was also conscious in arriving at its decision on sanction that the events in question had occurred some 9 years previously. Mr Gordon 50. In Mr Gordon s case, in addition to the aggravating and mitigating features described above, the panel found the following aggravating and mitigating features: Aggravating - His correspondence with RICS and submissions contained no meaningful demonstration of insight or remorse; and - As the Senior Valuer who conducted the valuations of the property, he was principally responsible for ensuring the valuation was compliant with the standards set out in the Red Book. Mitigating - Mr Gordon had made full admissions, albeit at a very late stage; and - There was no evidence of concealment of his behaviour. 51. Having taken all the aggravating and mitigating features relevant to Mr Gordon into account, the panel first considered whether it was appropriate to impose any sanction at all. The panel concluded that the proven allegations were serious and, in the absence of exceptional circumstances, imposing no sanction would be neither proportionate nor appropriate. In

18 reaching this conclusion the panel noted that the failure to heed the basic principles underpinning sound valuation practice in this case had resulted in a significant financial loss. The client in question had been significantly inconvenienced by Mr Gordon s failure to exhibit the professional competence reasonably to be expected of a chartered surveyor. 52. The Panel went on to consider whether to impose a caution. The Panel concluded that a caution would not adequately reflect the seriousness of the case, recognising the actual loss caused to the client and the potential this case had to undermine public confidence in the profession. The Panel concluded that the risk of repetition and the public interest would be addressed by the following order: that Mr Gordon receive a Reprimand and that he be subject to the following Condition on his continuing membership of RICS: 1. Not to undertake any valuation work unless and until: a. he completes an RICS course on Red Book theory and practice; and b. he provides RICS with evidence of satisfactory completion of such a course. 2. Failure to comply with this Condition will result in automatic expulsion from membership, without further reference to a Disciplinary Panel. 53. The panel then considered whether to impose a fine. It decided that a fine would not be an appropriate sanction. Considering what it knew of Mr Gordon s circumstances and his liability for a share of the costs of these proceedings, the panel felt that to impose a fine in these circumstances would be unnecessary and punitive. The panel considered the other sanctions available to it, but felt that to go beyond a condition would be excessive and disproportionate in the circumstances having balanced the aggravating and mitigating factors. Mr O Kane

19 54. In addition to the aggravating and mitigating factors common to all three members set out at paragraphs 47 and 48 above, the panel found the following further mitigating features to apply in Mr O Kane s case: - He had fully cooperated with RICS throughout the disciplinary process; - He had demonstrated in the evidence and submissions provided to the panel the extent to which he took personal responsibility for the deficiencies exposed in this case; - He had explained his remorse for the defaults in question; and - He had thereby demonstrated a high degree of insight. 55. For the same reasons as set out above in connection with Mr Gordon, the panel considered that the overall seriousness of this matter and Mr O Kane s substantial personal responsibility, meant that it would be wrong to conclude the case against with no order or a caution. The panel concluded that the appropriate sanction in Mr O Kane s case would be a Reprimand and the imposition of the following Condition on his continuing membership of RICS: 1. Not to undertake any valuation work unless and until: a. he completes an RICS course on Red Book theory and practice; and b. he provides RICS with evidence of satisfactory completion of such a course. 2. Failure to comply with this Condition will result in automatic expulsion from membership, without further reference to a Disciplinary Panel. 56. The panel again considered the other sanctions available to it, but considered them to be disproportionate or inappropriate to its findings. In arriving at the sanction against Mr O Kane, the panel had of course given appropriate weight to the testimonial evidence he had helpfully provided. Despite that positive account of his efforts to avoid similar problems in the future, the panel felt that the protection of the public still required appropriate conditions to be imposed on his continued membership of RICS. Its recognition of Mr O Kane s mitigation and

20 cooperation with RICS could however be reflected in the apportionment of costs between the parties. Mr Millar 57. In addition to the general aggravating and mitigating features set out at paragraph 47 and 48, the panel found the following further features applied: Aggravating - Mr Millar was a senior, experienced member who was responsible for the system operated by Colliers and to whom the basic requirement of examining the file before putting his name to the valuation reports should have been obvious. Mitigating - Despite the late and partial nature of his admissions, the panel felt he nonetheless deserved some credit for them; - Mr Millar had demonstrated some insight, albeit he attributed the failings more to his company s processes than to his personal performance in this matter; and - He expressed his regret for the outcome of his actions. 58. As with the cases of Mr Gordon and Mr O Kane, the panel felt that the case against Mr Millar could not be appropriately concluded with no order, or with a caution. In the panel s view, Mr Millar s case was distinguishable from the other two members by his position as a senior manager at Colliers and therefore the person who was ultimately responsible for the system of compliance operated by the firm and the consequences of the failings identified in this case. The panel recognised that the case had already had some impact on the firm and on Mr Millar personally, but felt this was nonetheless a significant aggravating factor.

21 59. Having carefully assessed the aggravating and mitigating features, the panel considered that the public interest in Mr Millar s case would be adequately protected by the imposition of a Reprimand, together with a Fine of 2,500 and the following Condition on his continuing membership of RICS: 1. Not to undertake any valuation work, which includes being a counter-signatory to any valuation report, unless and until: a. he completes an RICS course on Red Book theory and practice; and b. he provides RICS with evidence of satisfactory completion of such a course. 2. Failure to comply with this Condition will result in automatic expulsion from membership, without further reference to a Disciplinary Panel. 60. The panel again considered the other sanctions available to it, but concluded that any greater sanction would be disproportionate in the circumstances. Publication 61. The panel has considered the policy on publication of decisions, The Sanctions Policy Supplement 3 - Publication of Regulatory Disciplinary Matters. The panel was unable to identify any reason to depart from the presumption that decisions will be published on the RICS website and in the RICS magazine Modus. Costs 62. RICS applied for costs of 17,088. However, in response to questions from the Chair, Mr Lynch accepted that the figure claimed in respect of the average hearing cost ( 7,950) was overstated by a factor of The panel considered carefully the issue of costs. It summarily assessed the reasonable costs incurred by RICS in preparation for the hearing and the hearing itself in the sum of 11,150.

22 The panel had no reason to doubt that the costs application in that sum was fair and reasonable. 64. The panel concluded that it was appropriate for all three members to make a contribution towards the costs of bringing this case, otherwise the full cost of these proceedings would fall on the profession as a whole. It considered that the costs should be apportioned between the members as follows: Mr Gordon: 5,000; Mr O Kane: 1,150; and Mr Millar: 5, The Panel therefore ordered that Mr Gordon pays to RICS costs in the sum of 5,000, Mr O Kane, 1,150 and Mr Millar, 5,000. Appeal Period 66. Mr Gordon, Mr O Kane and Mr Millar have 28 days, from the service of the notification of the decision, to appeal this decision in accordance with Rule 59 of the Rules. 67. In accordance with Rule 60 of the Disciplinary, Registration and Appeal Panel Rules, the Honorary Secretary of RICS has 28 days, from the service of the notification of the decision, to require a review of this Decision..