DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS

Transcription

1 DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS REASONS FOR DECISION In the matter of: Mr Girish Patel Heard on: Wednesday, 25 October 2017 Location: The International Dispute Resolution Centre, 70 Fleet Street, London, EC4Y 1EU Committee: Mr Andrew Popat CBE (Chairman), Ms Ruby Sukkersudha (Accountant) and Mrs Judith Venables (Lay) Legal Adviser: Mr David Marshall Persons present and capacity: Mr Mohammed Ismail (ACCA Case Presenter) Mr Richard Lorkin (Hearings Officer) Observers: Mrs Wendy Harris and Ms Karen Carlton (both from ACCA Appointments Board) Outcome: Excluded from membership with immediate effect. No application for readmission may be considered until the expiry of the period of five years after the effective date of the order. Any such application must be considered by the Admissions and Licensing Committee 1. The Committee heard an allegation against Mr Patel that he was liable to disciplinary action under bye-law 8(a)(x), i.e. that he had been found by a court to have acted fraudulently or dishonestly. Mr Ismail appeared for ACCA. Mr Patel was not present and not represented.

2 PROCEEDING IN ABSENCE 2. The Committee was satisfied that Mr Patel had been served with the documents required by Regulation 10(7) of The Chartered Certified Accountants Complaints and Disciplinary Regulations 2014 in accordance with Regulation 22. The required documents were contained in the papers before the Committee. There was evidence that they were sent by post to the registered address on 15 August Mr Patel ed on 16 October 2017 to say that he was currently in Malaysia attending to his business affairs. He referred to a letter dated 14 March 2017 in which he had set out his position on the matter in question. He was offered the opportunity to attend by telephone link and told that he could apply for an adjournment. Mr Patel ed again on 23 October repeating that he was in Malaysia and saying that he was unlikely to be available to attend the hearing. He was asked if he wished to apply for an adjournment, but there was no reply. The Committee concluded that he had chosen not to exercise his right to attend and that no purpose would be served by adjourning this hearing. It was in the public interest for it to go ahead. The Committee therefore determined to proceed in Mr Patel s absence. The Committee would take into account Mr Patel s written representations. ALLEGATION(S)/BRIEF BACKGROUND 4. The background to this case is that a trial took place in the High Court, Chancery Division, in November and December The claimant was the member, Mr Girish Patel. The defendant was his brother, [Redacted]. In the proceedings the member asked the court to grant probate of an alleged will of his late mother dated 23 June [The brother] had previously obtained probate in respect of an earlier will of the deceased dated 18 June The judge, Andrew Simmonds QC sitting as a Deputy Judge of the High Court, gave judgment on 10 February He found that the member had forged the will dated 23 June 2005 and dismissed his claim. 6. The member faced the following allegation:

3 Allegation 1 (a) On or about the 10th February 2017, during a Probate hearing at the High Court of Justice Chancery Division, Mr Girish Patel was found by the Court as having forged his late Mother's Will. (b) By reason of his conduct as 1(a) above, Mr Girish Patel is liable to disciplinary action pursuant to bye-law 8(a)(x). DECISION ON FACTS/ALLEGATION(S) AND REASONS 7. Bye-law 8 includes the following: (f) For the purposes of bye-law 8(a)(x): (i) where the person in question was a party to the proceedings, a copy of a certified judgment of the civil proceedings shall be conclusive proof of the facts and matters found; (g) Subject to bye-law 8(f) above, any other finding of fact in any civil proceedings before a court of competent jurisdiction in the United Kingdom or elsewhere shall be admissible as prima facie evidence in any disciplinary proceedings. 8. ACCA provided the Committee with a copy of the approved judgment in this case, as published on the Internet, and a copy of the sealed order made following that judgment. ACCA did not provide a document describing itself as a certified judgment. 9. The Legal Adviser advised that in English civil procedure judgments are not normally certified by a formal process, but they are approved by the judge before being published. The Committee did not consider that it made a difference in this case whether the judgment constituted conclusive proof or prima facie evidence. The Committee was satisfied that the judgment was authentic and that the judge had made a clear finding as follows: 106. having carefully and anxiously considered all the evidence, both factual and expert, and having the guidance in Re H well in mind, I am satisfied that Girish did forge the Will.

4 10. Mr Patel did not deny that such a finding had been made against him. The Committee was satisfied that it amounted to a finding that Mr Patel acted fraudulently or dishonestly. He was therefore liable to disciplinary action under bye-law 8(a)(x). The Committee found the allegation proved in its entirety. SANCTION(S) AND REASONS 11. Having found that Mr Patel was liable to disciplinary action, the Committee considered what sanction, if any, to impose having regard to the Guidance for Disciplinary Sanctions (effective from 1 July 2017) and the principle of proportionality. 12. The Committee first considered whether there were any aggravating or mitigating factors. A finding of forgery against an accountant is always a serious matter but there were a number of factors in this case which aggravated the seriousness of what Mr Patel did: (i) The amount of money involved was large. The judge said that Mr Patel had a strong motive for forging the will because it gave him control over a $50 million stake in a company in Malaysia. (ii) Mr Patel not only forged the will but commenced and conducted lengthy court proceedings to try to ensure that it took effect. He appeared to have used his status as a member of ACCA to bolster his credibility. The judge made a number of references to him being a Chartered Accountant and took into account that it is even less likely that forgery would be perpetrated by a man who is both a chartered accountant and an accredited arbitrator. (iii) The forgery and ensuing litigation must have had a seriously harmful impact on the other people concerned, even though the court claim was ultimately unsuccessful. (iv) The judge described Mr Patel as a self-confessed liar. He described his evidence as demonstrably unsatisfactory and said that the truth is a flexible concept for Girish. He said that Mr Patel, and two other witnesses that he had called, lied brazenly to the Court.

5 (v) Mr Patel has not accepted that he did wrong. In his letter of 14 March 2017 he said in relation to the findings I feel that the judge had got it wrong. 13. The only mitigating factors that the Committee could identify were that no previous complaints or findings against Mr Patel were put before the Committee, he had cooperated with ACCA s investigation and, possibly, that his forgery was not committed in the context of accountancy practice. Mr Patel s letter dated 14 March 2017 emphasised that the context was a family dispute and stated that he had never practised as an accountant and did not hold himself out as a member of ACCA. The Committee did not regard this as significant mitigation. With regard to remorse, he said: I had never ever had intention to [mislead] the court and a mistake was made which I very much regret and had apologised to the court. 14. In view of the seriousness of the case, the Committee was satisfied that it was necessary to impose a sanction. It first considered the sanctions of admonishment, reprimand and severe reprimand. None of these was sufficient to mark the seriousness of this case. The guidance for severe reprimand indicates that it would usually be applied in situations where the conduct is of a serious nature but there are particular circumstances of the case, or mitigation advanced which satisfy the Committee that there is no continuing risk to the public, and there is evidence of the individual s understanding and appreciation of the conduct found proved. In this case there is no significant mitigation. Few of the factors in the guidance were present. The judge s comments demonstrate that Mr Patel would present a risk to the public. Mr Patel s letter indicates that he has no understanding or appreciation of the conduct found proved. He has expressed no real remorse. 15. The Committee was satisfied that the minimum sanction necessary in this case was exclusion from membership. Most of the factors set out in the Guidance, in so far as they were relevant, were present in this case. The Committee was satisfied that Mr Patel s actions were fundamentally incompatible with being a member of ACCA. 16. In view of the seriousness of what Mr Patel did, and the evidence of his unfitness for membership, the Committee determined that no application for readmission should be considered for the maximum period of five years. If Mr

6 Patel wishes to resume membership he will require a substantial period to demonstrate that he has been rehabilitated. COSTS AND REASONS 17. Mr Ismail applied for costs. He produced a costs schedule totalling 5, As the case took a shorter time than estimated he reduced the costs claim to 5, Mr Patel had been served with the costs schedule but had made no submissions about costs. 18. The Committee was satisfied that this case was properly brought and that ACCA should be awarded costs. It was satisfied that the sums claimed were reasonable. 19. Mr Patel had not provided a statement of means or any other financial information. The Committee had no reason to think that he would not be able to pay the costs claimed. The Committee awarded costs as claimed. ORDER 20. The Committee ordered that: (i) Mr Girish Patel be excluded from membership; (ii) No application for readmission may be considered until the expiry of the period of five years after the effective date of the order; (iii) Any such application must be considered by the Admissions and Licensing Committee; (iv) Mr Patel pay costs of 5, to ACCA. EFFECTIVE DATE OF ORDER 21. The Committee determined that its order should have immediate effect. Although Mr Patel does not practise as an accountant he appears to have used his membership of ACCA to give credibility to his dishonest actions. The Committee considered that there would be a risk to the public if he were allowed to remain a member during the appeal period.

7 INTERIM ORDER 22. The Committee was told that there was no Interim Order in force. Mr Andrew Popat, CBE Chairman 25 October 2017