Agents’ Mutual chief executive Ian Springett knew about collective decision making between groups of estate agents from the same area, it was alleged at a hearing yesterday (Thursday).
However, Mr Springett stressed that this was correct only in the context that he had heard about it, and that he had told agents to take their own advice and make their own decisions.
The Competition Appeal Tribunal is examining issues around the ‘one other portal’ rule imposed by Agents’ Mutual portal OnTheMarket.
Yesterday, Paul Harris QC, representing Gascoigne Halman, produced to the tribunal an email from Helen Whiteley, commercial director at AM.
The email was said to have been sent to Mr Springett in June 2014.
In it, said Mr Harris, Ms Whiteley asked if collective decision making over which other portal to choose would face any legal issues.
Mr Harris put it to Mr Springett under cross-examination: “This is quite a period of time after you say you had informed them [agents] they should make individual decisions.
“Your number two is saying she clearly does not know if there are any legal issues about making collective decisions.”
Julie Emmerson, the AM regional sales representative for the north-east, was said to have attended a meeting with the ‘coastal group’ of agents in the area in September 2014.
Ms Whiteley asked Mr Springett in the email if Ms Emmerson could be in the room when these collective decisions were being made or “should Julie leave at that point?”
She was told that Ms Emmerson must leave before any negotiation or discussion of which portal they might choose.
Mr Harris alleged to Mr Springett: “You knew there would be joint negotiations but you didn’t want to get involved.”
He said Mr Springett “took no steps to stop that discussion being collective” and “avoided sending any messages or documents about it” to prevent “incriminating evidence”.
Instead, Mr Harris claimed, Mr Springett pointed the north-east agents in the direction of AM board member and north-east estate agent Clive Rook so he could deal with it “orally”.
On June 10, just days after the meeting, Ms Emmerson and Mr Rook were copied in to an email from estate agent Steve Henning, which explained exactly what happened when she “left the room”.
In it Mr Henning details that the agents were split between leaving Rightmove or Zoopla.
Replying to Mr Harris, Mr Springett said agents were “clearly told they should take their own legal advice” and he had told Mr Rook that previously.
Mr Harris said it “does not say that anywhere or in any part of the message chain”.
For the fourth time, he asked Mr Springett if he knew of the collective discussions.
Mr Springett said: “My evidence is that I had those discussions [about individual decision making] with the north-east, and south-west Wales.”
Mr Harris replied: “You were facilitating collective discussions to go ahead between agents but party to it.”
Mr Harris put it to Mr Springett that he “knew that agents in the north-east, including a board director at Agents’ Mutual, were going to have a collective decision about which portal to list on and which not to list on”.
He said Mr Rook had been in on the decision, and through him, and the email sent to Ms Emmerson, Mr Springett knew what they were going to choose.
Mr Springett said Ms Emmerson’s only agenda in the north-east was to recruit new members and he “did not care” what other portal they chose.
Mr Harris said: “So it was just a happy coincidence that Ms Emmerson was told about the exact part of the meeting she was asked to step out.”
It was at that point that Mr Springett admitted to knowing that the group was meeting to discuss “a collective purchasing arrangement” but reiterated he had told them to seek independent advice.
Mr Harris said Mr Springett could not point to any evidence that they were told that.
The hearing was told by Mr Springett that Ms Emmerson was recruiting estate agents to Agents’ Mutual ‘one-by-one’ and it was never discussed collectively.
Mr Harris then produced an email sent around the north-east agents on August 11, with Mr Rook copied in. It was titled: ‘OTM-Making a decision about what portal to come off’.
The email talks of “all coastal agents” agreeing to “all come off as a group”, said Mr Harris, adding that it states that there will be an OTM meeting in September where “all have to make a decision on the coast”, said Mr Harris.
Mr Harris said it was clear what AM board member Mr Rook was thinking from his internal emails months before the launch of OTM in January 2015 – that “all members should join to make OTM number one” and should “marginalise non members”.
He continues, said Mr Harris, to say that “nearly all members have committed verbally join in advance of the launch”.
Mr Harris said Mr Rook “clearly knows about discussions yet to be made by nearly all members in his area”.
They are clearly having collective discussions and reporting those, the barrister went on.
Mr Springett said he could not comment on that.
Mr Rook had apparently said only one north-east agent had not decided to drop Rightmove and go with Zoopla.
In the email he allegedly said: ”If he does not, he can be marginalised. We can successfully attack non-members.”
Mr Rook goes on to state that he knows a collective boycott is illegal, the hearing was told.
Again Mr Springett said he “cannot offer any comment” and said he hadn’t spoken to Mr Rook about the topic for a while and “could not know what he was thinking”.
Mr Harris said Mr Rook and other board members like him were ‘instrumental’ in getting other people to sign up.
They offered ‘guidance and reassurance’ to other members when signing up and had ‘influence’ on current and existing members and the ‘wider estate agencies’.
Mr Springett said their influence came from “putting their reputations on the line” when signing up.
Mr Harris then produced an email from Mr Springett to Ms Whiteley from October 2014 stating that agencies should take the “low risk option” when choosing their second portal. Mr Springett favoured agencies dropping Zoopla.
Mr Springett told the hearing that he did not care which other portal agents used as long as they stuck to the OOP policy.
Persevering, Mr Harris told the hearing Mr Springett was aware of the group in the north-east in which Clive Rook collectively discussed which portal to choose.
He produced a document about a group of agents prospectively stating they wanted to come off both Zoopla and Rightmove.
Mr Springett said he was against the idea as he knew OTM could not be a direct replacement for both straight after launch, and agents should keep one other portal to sustain them until OTM was fully up and running to compete.
Mr Harris put it to him: “Do you want to change your evidence when three times I asked you ‘do you know about collective groups coming off both or which portal to choose, Mr Springett?'”
Mr Springett replied: “I was told that there was a move in some parts, in the sense that it was reported to me in that conversation.’
“So the answer is yes?“ said Mr Harris.
“In that context yes,” said Mr Springett.
“You knew about consensual decision making in the north-west and you told Ms Whiteley you have a preference on what that decision should be?” asked Mr Harris.
Mr Springett said he had “only said it to Ms Whiteley and not to Mr Rook”.
Mr Harris asked him if that preference was to come off one and not two portals, and that one should be Zoopla.
Mr Springett replied: “Yes.”
In an email to Ms Whiteley, Mr Springett said he wanted to “render it (Zoopla) useless”, the hearing was told.
“That is your mind set,” said Mr Harris. “You did not want to split the vote to which portal they chose.”
“I didn’t care,” replied Mr Springett. “I just wanted the most members possible for Agents’ Mutual to disrupt the market.”
He said he didn’t care if the vote in a local area was split or diluted.
“Really?” said Mr Harris.
He again produced an email sent by Mr Springett , this time to an agent, which said: “Outside London most members decided to remain with Rightmove, it puts us in second position.
“In London RMZ is split leaving us in third place.’
“It makes our job harder.”
Mr Harris claimed the document stated that “the most effective way to get to number two position is to get the agents to leave Zoopla.
“It is quicker and more efficient to drop Zoopla. I would prefer you all to ditch them.”
Mr Harris said: “In your capacity as chief executive you are telling him information that he did not know and wasn’t for his ears.
“This is clear evidence of you trying to influence a group of agents to ditch Zoopla and make Agents’ Mutual number two.”
Asked for a statement, a spokesperson for Agents’ Mutual, the company behind OnTheMarket, said: “It would be inappropriate to give a running daily commentary through the media while formal proceedings at the Competition Appeal Tribunal are ongoing.
“Many claims, counter-claims and allegations have inevitably been made and reported during the proceedings.
“These matters should, and will, be determined on the evidence at trial by the Tribunal.”
The hearing continues today.
A report of earlier proceedings at the hearing yesterday is immediately below this one.