MG Rover: Eight years on, Deloitte faces a Tribunal Hearing
Eight years after MG Rover collapsed owing some £1.4bn and with the loss of 6300 jobs, the accountants Deloitte will appear before a tribunal assessing whether it failed to manage conflicts of interest in its advice to MG Rover and the 'Phoenix Four' group of businessmen (John Towers, John Edwards, Nick Stephenson and Peter Beale).
The Four had set up Phoenix to buy the loss-making carmaker from BMW for a token tenner back in 2000, with MG Rover coming with a £500m dowry from the German car-maker.
The Four then set up a complex financial structure to move money around and extract value - to the tune of £42m in salaries and pensions before the loss making firm collapsed five years later.
The Four didn't face any criminal charges as the complex financial structure they set up to extract value was cleverly designed and within the rules, but they were disqualified from being directors of any company for up to six years.
After a long-running BIS Inquiry concluded in 2009, the case was referred to the Financial Reporting Council, which regulates accountants. The FRC's executive counsel in turn referred the case to the FRC's Accountancy and Actuarial Discipline Board (AADB) to review Deloitte's conduct as auditors and advisers to various companies in the MG Rover Group sale.
And the AADB last year accused Deloitte and Maghsoud Einollahi, a former Deloitte M&A partner, of misconduct related to their work as corporate finance advisors for various companies involved with MG Rover and the Four.
It should be stressed that Deloitte's audit work on MG Rover has not been questioned.
The AADB's complaint alleged that Deloitte and Mr Einollahi, who retired from the firm in 2008, failed to "adequately consider the public interest" in certain transactions as well as "the potential for there to be different commercial interests between the Phoenix Four, MG Rover Group and associated companies and shareholders".
It also claimed they had not paid enough attention to "the conflicts of interest and self-interest threat" arising from working for both the Phoenix Four and MG Rover.
The AADB complaint is understood to relate to two transactions. One involved the acquisition of most of BMW Rover's loan book. The other involved the exploitation of tax losses.
The complaints will be heard by an independent tribunal nominated by the AADB, which has the power to issue an unlimited fine.
Deloitte had previously tried to have the complaint struck out, and had stated that it was "disappointed that the AADB has taken the view that limited aspects of our advisory work relating to two transactions in 2001-02 falls short of acceptable standards."
And it had previously argued that "we do not agree with the AADB and are confident that when all the evidence is considered, the tribunal will conclude that there is no justification for criticism of either Deloitte or our former partner Mr Einollahi."
The FRC stated this week that the tribunal hearing will resume on 29th July.
(It should be noted that the possibility of conflicts of interest have been a major concern for the European Commission, which wants the 'Big Four' auditors - PwC, Deloitte, Ernst & Young and KPMG - to split off their consultancy businesses in Europe so as to avoid fears over independence).
Wider Lessons from MG Rover still to be learned?
The move by the FRC is in essence the only substantive follow up to what was the biggest collapse in recent British Business history and where some serious issues were raised by the BIS Report in 2009.
More broadly, I would still like to see the suggestions made by the BIS inspectors actually followed up. For example, improvements could be made to auditing and reporting standards that would increase transparency in financial statements, and the issue of 'going concern' could be looked at again.
In addition, while the BIS report also acknowledged that the transfer of assets and tax losses between companies with the MG Rover Group was in accordance with accounting standards, readers of the firm's financial statements would have been better informed had the "true or potential value of these assets been explained".
In other words, a shift towards making such disclosures mandatory would improve understanding of a company's financial performance.
But in addition to these issues of regulation and transparency, there remains a fundamental issue of distribution and the extraction of value by a minority in the case of a Private Equity-Model set up.
This needs tackling by securing wider stakeholder oversight of 'special purpose investment vehicles' (like Techtronic in the MG Rover case), for example by securing recognised trade unions some representation in Private Equity-Model backed investment vehicles as distinct from merely union support as in the case of MG Rover.
A related and final issue remains the un-reformed nature of our wider financial system. That system is now made up of huge financial beasts which cannot easily be distinguished as banks of different types, hedge and private equity funds, re-insurers or credit default swap brokers.
Put simply, the institutional distinction between different types of banks and those institutions trading in various types of securities has all but disappeared to the extent that the labels are interchangeable: all do all of the different types of trading.
Legislative restrictions are needed to reduce the power of these institutions over the real economy. Currently the interchangeable roles of branded financial institutions enable them to trade products and fund special purpose investment vehicles without oversight.
Legislative reform is still required to ensure that no British bank (or financial institution which contains a bank) can own, invest in, or sponsor a private equity fund which is unrelated to serving its own customers for its own profit.
This will restrict the trading activity of British banks in off balance sheet instruments, special purpose investment vehicles or securities markets such as credit default swaps which if they result in distress and flight - as in the MG Rover case - are now effectively secured by the taxpaper.
We don't just need to break up the banks - we still need to limit what they can actually do, something I explored with Ian Clarke and Alex de Ruyter in a 2010 research paper (read here).
Professor David Bailey works at Coventry University Business School