UK: FRC consultation - Guidance for Directors of Listed Companies on Going Concern and Financial Reporting

Listing Rule 9.8.6 requires listed companies incorporated in the UK to provide in their annual report "a statement made by the directors that the business is a going concern, together with supporting assumptions or qualifications as necessary, that has been prepared in accordance with Going Concern and Financial Reporting: Guidance for Directors of listed companies registered in the United Kingdom, published in November 1994".

The 1994 Guidance is now the subject of review: the Financial Reporting Council has published a consultation paper in which it states:

The Guidance for Directors was written by a Working Group formed under the auspices of the Cadbury Committee that reported on the Financial Aspects of Corporate Governance. The formation of the Working Group arose out of concerns that there had been several high‐profile company failures where there had been no apparent indication of the imminent problems in the previous year’s report and accounts.

The objective of the Guidance for Directors is to support good corporate reporting and, in particular, the requirements of the Listing Rules and Accounting Standards. When a company is not a going concern this does not necessarily mean that it is, or is likely to become, insolvent. The Guidance for Directors is not intended to address aspects of insolvency and, in particular, is not intended to support the requirements of the Insolvency Act 1986.

In the period since 1994 there have been substantial changes to the accounting standards applied by directors of listed companies. This is particularly the case for directors preparing consolidated accounts required to comply with International Financial Reporting Standards (IFRSs) as adopted by the EU.

The FRC observes that current economic conditions are creating particular challenges for companies. Recent developments in global debt markets have led banks to be cautious of lending to one another (the so‐called “credit crunch”). This has severely restricted liquidity which has created unexpected financial difficulties for banks and entities that depend on the availability of loans as a key source of capital. Many market commentators are now forecasting a period of reduced growth and in some cases recession, with the result that going concern questions are likely to need to be considered in more detail by Boards of Directors.

In view of these deteriorating economic conditions the FRC has concluded that this is an appropriate time to consider whether the existing Guidance for Directors is necessary and remains appropriate, or whether it can be improved.

Note: The UK's Combined Code on Corporate Governance (June 2008) provides in Section C ("Accountability and Audit") the following provision (C.1.2): "The directors should report that the business is a going concern, with supporting assumptions or qualifications as necessary".

Postscript (2 Sep 2008): For further comment see this short article in the Financial Times newspaper. 

UK: England and Wales: auditors' liability and the ex turpi causa principle [a belated posting]

Several months ago the Court of Appeal gave judgment in Moore Stephens (a firm) v Stone & Rolls Ltd [2008] EWCA Civ 644 and it would appear from recent reports in the legal press that an appeal to the House of Lords will be made. The case required the Court of Appeal to consider the operation of the ex turpi causa non oritur actio principle (no cause of action may be founded on an illegal act) in the context of a negligence claim brought by the liquidators of a company (Stone & Rolls) against a company's auditors (Moore Stephens). 

The liquidators argued that the auditors had failed, during the course of several audits, to identify the fraud of Mr. Stojevic (the directing mind and will of the company). Mr. Stojevic fraudulently obtained, through the company, money from various banks. One of these banks sued the company and Mr. Stojevic and was awarded damages against Mr. Stojevic and the company. The company was unable to pay and entered liquidation. The auditors denied negligence and applied for the action to be struck out on the basis that the claim was barred by the ex turpi causa principle. The first instance judge declined to strike out the claim (see [2007] EWHC 1826 (Comm)). 

The Court of Appeal held that the liquidators' claim was barred by the ex turpi causa principle and struck out the claim. The court rejected the argument that the company was the victim of fraud and attributed Mr. Stojevic's actions to the company. There was not, the court unanimously agreed, any room for discretion in the application of the ex turpi causa principle because, as Lord Goff observed in Tinsley v Milligan [1994] AC 340 at 355B: "...the principle is not a principle of justice; it is a principle of policy, whose application is indiscriminate and so can lead to unfair consequences as between the parties to litigation. Moreover the principle allows no room for the exercise of any discretion by the court in favour of one party or the other".  The court also rejected the argument that the ex turpi causa principle did not apply where the claim was based on the commission of a fraud where the prevention of that fraud was "the very thing" that the defendants had undertaken to do. In this regard, Rimer LJ observed (at para. [109]):

There is ... no support in the authorities that we were shown for the proposition that if "the very thing" from which the defendant owed a duty to save the claimant harmless is, or includes, the commission of a criminal offence, the public policy defence based on the ex turpi causa principle will be overridden so as to enable the bringing of the claim that relies on the claimant's illegality".

Note: The case has been reported here in the Law Society Gazette.

Postscript (2 Sep 2008): The House of Lords Judicial Office informs me: "[the] petition for leave was presented on 18 July 2008 ... and we would hope to get a decision on leave before the end of November this year". 

UK: the Statutory Auditors and Third Country Auditors (Amendment) (No 2) Regulations 2008

The Department for Business, Enterprise and Regulatory Reform has published a draft of the Statutory Auditors and Third Country Auditors (Amendment) (No. 2) Regulations 2008 (available here in Word format). Further information, with background information, is available in the explanatory text accompanying the draft (available here in Word format) and from where the following text is taken:

The EU’s Statutory Audit Directive (2006/43/EC) introduces the regulation of auditors from outside the EEA (“Third Country Auditors”) who audit the accounts of companies who issue securities on regulated markets in the EEA. The Directive also allows these requirements to be disapplied where third country auditors are subject to a system of regulation in their home country which is determined to be equivalent to those in the EU.

Although the Commission has not yet made proposals for determinations of equivalence, the Commission and Member States have recently agreed a decision (2008/627/EC) on transitional measures which will allow Member States to treat auditors from specified countries largely as though the regulatory regimes were equivalent. This will allow the introduction of these provisions with the minimum disruption to EU markets. 

... because of the legal approach of the Commission’s decision, some amendments are needed to the existing provisions in SI 2007/3494 [The Statutory Auditors and Third Country Auditors Regulations 2007, and this is the purpose of the new Regulations]".

UK: POB annual report published

The Professional Oversight Board, part of the Financial Reporting Council, has published its annual report to the Secretary of State for Business, Innovation and Skills for the year to 31 March 2010: see here (pdf). This reports on the Board's responsibilities and activities and largely reproduces information already published. However, two items are worth noting.

First, the Board concludes that certain aspects of regulatory activity at some recognised bodies gives it "significant concerns". Second, with regard to audit choice, the Board notes that the majority of the Market Participants Group's recommendations have now been implemented but there is limited evidence that they have had a significant impact on market concentration and the risks thereby arising.

UK: auditors: market concentration and their role - enquiry begins

The House of Lords Economics Affairs Committee yesterday launched an enquiry which will explore the issues arising from the 'Big Four' accountancy firms' domination of the audit market. The Committee will also consider whether auditors should have done more ahead of the banking crisis to alert investors to the riskiness of banks' assets. Further information is available here and the Committee's call for evidence is available here (pdf).

UK: the provision of non-audit services by auditors

Last year the Auditing Practices Board published a consultation paper concerning audit firms' provision of non-audit services to the listed companies they audit. Feedback on this consultation has been published today and proposals published to change the APB's Ethical Standards for Auditors and the FRC's Guidance on Audit Committees: see here (pdf) and here (pdf). A prohibition on auditors providing non-audit services to the companies they audit is not being proposed.

UK: number of audits requiring significant improvement too high says AIU

The Professional Oversight Board, part of the Financial Reporting Council, yesterday published the Audit Inspection Unit’s Annual Report for 2009/10: see here (pdf).

The AIU reviews [a] the quality of the statutory audits of listed and other major public interest entities that fall within its scope and [b] firms’ policies and procedures supporting audit quality. The 2009/10 report provides an overview of the activities and findings of the AIU for the year ended 31 March 2010. With regard to the quality of audits by major firms the report finds:

... major firms have policies and procedures in place to support audit quality that are generally appropriate to the size of the firms and the nature of their client base. Nevertheless, improvements to these policies and procedures have been recommended at all firms. Notwithstanding the quality of firms’ policies and procedures, the number of audits assessed as requiring significant improvement at major firms (eight audits or 11% of audits reviewed at major firms excluding follow‐up reviews) is too high. Firms are therefore not always consistently applying their policies and procedures on all aspects of individual audits.

... a higher proportion of audits conducted by smaller firms require significant improvement. Six of the 11 smaller firm audits reviewed in 2009/10 (excluding follow–up reviews) were assessed as requiring significant improvement (2008/9: five of the 11 audits reviewed). Firms should not undertake audits unless they have the appropriate level of resources and expertise to ensure they are performed to an acceptable standard.

The AIU believes consideration should be given to establishing competency requirements specifically for auditors of listed and major public interest entities".

UK: non-executives on E&Y's global advisory board

Earlier this year the Audit Firm Governance Code was published. Principle C1 of the Code provides that a firm should:

appoint independent non-executives who through their involvement collectively enhance shareholder confidence in the public interest aspects of the firm’s decision making, stakeholder dialogue and management of reputational risks including those in the firm’s businesses that are not otherwise effectively addressed by regulation".

The Financial Times newspaper reports - see here - that Ernst and Young is to appoint four non-executive directors to its global advisory board and that it is the first of the 'big four' firms to announce plans to do so. Further information is available in E&Y's press release: see here.

UK: auditors' contribution to prudential regulation - FRC and FSA issue joint discussion paper

The Financial Reporting Council and Financial Services Authority have today issued a joint discussion paper - available here (pdf) - the purpose of which is to start a debate on how the FSA, FRC and auditors can work together to enhance auditors' contribution to prudential regulation.

The paper makes clear the view of the FSA and FRC that auditors need to challenge management more. In chapter 3, for example, the paper notes (para. 3.9 and 3.10):

In some cases the FSA has seen concerning valuations, provisions and disclosures, the auditor’s approach seems to focus too much on gathering and accepting evidence to support managements’ assertions, and whether managements’ valuations and disclosures comply with the letter of accounting standards, rather than whether the standards’ requirements have been applied in a thoughtful way that would better meet the standards’ objectives. In some areas, it can be questioned whether auditors always exhibit sufficient professional scepticism".

UK: Limited Liability Partnership Accounts Regulations published

The following Regulations have been published on the OPSI website and come into force on 1 October 2008. Their purpose is to apply to limited liability partnerships the accounting provisions of the Companies Act (2006). For further information see these FAQs prepared by BERR. 

[1] The Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008 - see here for the explanatory memorandum.

[2] The Small Limited Liability Partnerships (Accounts) Regulations 2008 - see here for the explanatory memorandum.

[3] The Large and Medium-sized Limited Liability Partnerships (Accounts) Regulations 2008 - see here for the explanatory memorandum.

UK: key trends in the accountancy profession - POB report

The Professional Oversight Board, part of the Financial Reporting Council, has published the eighth edition of its Key Facts and Trends in the Accountancy Profession report: see here (pdf). The report notes, for example, that:

Over the past six years, the Big Four have experienced a steady increase in the proportion of fee income from non‐audit work for non‐audit clients. In contrast their fee income from non audit work to audit clients has been falling".

UK: the FRC's annual report and work programme

The Financial Reporting Council has published its annual report for 2009/10 and its work programme for 2010/11: see, respectively, here (pdf) and here (pdf).

Plans include the introduction of the Stewardship Code for Institutional Investors and work exploring the ways in which the usefulness of information in audit reports can be enhanced from the perspective of investors and other users.

UK: confidence in corporate reporting and governance - FRC warning continues

The UK's Financial Reporting Council held its Annual Open Meeting this week. The FRC's chief executive delivered a series of remarks concerning the on going work of the FRC and concluded with this warning:

In December of last year we issued a statement noting that the risks to confidence in corporate reporting and governance were higher than they had been for some years and that this needed to be matched by additional diligence on the part of preparers of accounts, audit committees and auditors. Eight months on our warning remains in place and the text of our statement and the key questions which we suggested that audit committees should consider is worth re-reading".

IOSCO publishes revised Objectives and Principles of Securities Regulation

The International Organization of Securities Commissions has published a revised edition of its Objectives and Principles of Securities Regulation: see here (pdf). Eight new principles have been added including a couple relating to auditing: auditors should be subject to adequate levels of oversight and should be independent of the entity that they audit. Further information is available here (pdf).

UK: the Data Sharing Review and corporate governance

The Data Sharing Review Report was published today. It contains many recommendations but the first two are of particular importance within the field of corporate governance:

Recommendation 1: As a matter of good practice, all organisations handling or sharing significant amounts of personal information should clarify in their corporate governance arrangements where ownership and accountability lie for the handling of personal information. This should normally be at senior executive level, giving a designated individual explicit responsibility for ensuring that the organisation handles personal information in a way that meets all legal and good-practice requirements. Audit committees should monitor the arrangements and their operation in practice.

Recommendation 2: As a matter of best practice, companies should review at least annually their systems of internal controls over using and sharing personal information; and they should report to shareholders that they have done so. The Combined Code on Corporate Governance requires all listed companies to review ‘all material controls, including financial, operational and compliance controls and risk management systems’ ... It would be surprising and worrying not to see information risks addressed explicitly in the Statements of Internal Control for such companies. We hope that bodies such as the Confederation of British Industry will develop guidance to help companies ensure their controls and disclosures are adequate. If approaches on these lines are not successful in improving high-level accountability for giving assurance on information risks, we would expect the Financial Reporting Council to intervene.

For background information click here.

UK: KPMG audit committee survey

KPMG has published the results of a survey of public company audit committee members. The views of just under 150 audit committee members were obtained and the following findings emerged:

• Risk management was seen as the top oversight priority for the year ahead.
• Nearly half of respondents said that the committee reported to the full board.
• One in four respondents said that their committee did not have a formal process in place to evaluate the external auditor.
• Over half of respondents expressed concern that the committee had been assigned (or had assumed) too much responsibility for risk oversight beyond financial reporting risk.

The results are available here (you may need to provide personal information in order to gain access).

UK: choice in the audit market - FRC progress report

The Financial Reporting Council has published its fifth progress report on the implementation of the recommendations of the Market Participants Group (here, pdf) on promoting choice in the UK audit market: see here (pdf).

The report summarises recent developments, including the publication of the audit firm governance code, and also describes the results of recent FRC research. It is noted that the revised Guidance to Audit committees has had a limited impact on disclosure and, with regard to market concentration, the FRC reports:

It is apparent that, despite previous increases in the number of FTSE 350 companies retaining a non‐Big Four auditor from 2006 – 2009, this trend has now ceased and may even have reversed. The February 2010 figures also show a slight drop in the number of smaller listed companies retaining a non‐Big Four auditor.

[Of] the thirteen FTSE 350 companies the [Professional Oversight Board] is aware have changed auditor since February 2008, none has switched from a Big Four to a non‐Big Four firm, and two which previously retained a non‐Big Four auditor have changed to a Big Four firm. There appears therefore to be little indication that concentration in the audit market is reducing or is likely to reduce in the near future".

USA: the predictive qualities of corporate governance ratings

Recent research published by academics at Stanford University's Rock Center for Corporate Governance has considered the predictive ability of corporate governance ratings. The authors report:

"The providers of the ratings make strong claims regarding the ratings’ value in predicting future bad outcomes (such as accounting restatements or shareholder suits) and firm performance. These ratings, often provided by proxy advisors, are also used in formulating recommendations that can be influential in shareholder voting. We provide the first independent assessment of four prominent commercial corporate governance ratings. Prior evidence on individual ratings has generally been backward-looking, raising the distinct possibility that the ratings reflect past firm performance but are unable to predict  accounting restatements, litigation, and future performance. We examine the ability of ratings produced by Audit Integrity, RiskMetrics (previously Institutional Shareholder Services), GovernanceMetrics International, and The Corporate Library to predict future performance. With the possible exception of ratings by Audit Integrity, we find that most ratings have either limited or no success in predicting firm performance or other outcomes of interest to shareholders".

For further information see:
Research article | Abstract | Rock Center home page |

Europe: the governance of financial institutions - Commission publishes green paper

The European Commission has published a green paper titled Corporate governance in financial institutions and remuneration policies: see here (pdf). The paper contains a large number of questions for consultation and sets out possible ways to:

• improve the functioning and composition of boards of financial institutions in order to enhance their supervision of senior management;
• establish a risk culture at all levels of a financial institution in order to ensure that long-term interests of the business are taken into account;
• enhance the involvement of shareholders, financial supervisors and external auditors in corporate governance matters;
• change remuneration policies in companies in order to discourage excessive risk taking.

Amongst the questions on which views are sought are:

• Should the number of boards on which a director may sit be limited?
• Should combining the functions of chairman of the board of directors and chief executive officer be prohibited in financial institutions?
• Should a specific duty be established for the board of directors to take into account the interests of depositors and other stakeholders during the decision-making procedure?
• Should cooperation between external auditors and supervisory authorities be deepened?
• Should supervisory authorities be given the power and duty to check the correct functioning of the board of directors and the risk management function?
• What could be the content and form, binding or non binding, of possible additional measures at EU level on remuneration for directors of listed companies?
• Should disclosure of institutional investors' voting practices and policies be compulsory? How often?

The paper makes clear (at p. 11) the Commission's view that there is a role for financial regulators to play:

The main challenge in seeking to improve existing corporate governance practices will be to ensure real change in the behaviour of the relevant actors. This cannot be achieved through new regulatory and non-regulatory requirements alone. It must also be backed up by effective financial supervision".

Interestingly, whilst the paper is concerned with financial institutions, it is noted (at p. 3):

... the Commission will soon launch a broader review on corporate governance within listed companies in general and, in particular, on the place and role of shareholders, the distribution of duties between shareholders and boards of directors with regard to supervising senior management teams, the composition of boards of directors, and corporate social responsibility".

For further information see: press release | press conference video | faqs | Commission consultation page | Commission staff working document: lessons from the financial crisis | other proposals announced: credit rating agencies : remuneration : financial services regulation |

UK: Institutional Shareholders' Committee statement on auditor liability limitation agreements

The Institutional Shareholders' Committee has published a statement concerning auditors' liability limitation agreements. The ISC notes:

• Agreements should be proportionate, and provide a limit for liability that is fair and reasonable.
  
• Companies should recognise that they are not obliged to enter into agreements if they are not suitable.
  
• Companies should justify to shareholders the benefits of concluding agreements in advance of putting them to a general meeting vote. 
  
• When audit committees discuss these agreements with auditors, they should seek to assure themselves that audit quality will be preserved and enhanced.
  
• Shareholders will not want to see their preference for proportionate liability agreed at holding company level undermined by other forms of agreement lower down the group structure.
  
• Companies should use the specimen principle terms for agreements which have been laid out by the FRC. 

For further information see:
FRC guidance on auditor liability limitation agreements | ISC | ISC statement | ISC press release |