Those FRC allegations against Deloitte in full.
Further to yesterday's blog, here is the full list of FRC allegations against Deloitte & Touche and Mr Maghsoud Einollahi which were upheld by yesterday's Tribunal...
In relation to the sale by BMW of a profitable loan book, Deloitte & Touche and Mr Maghsoud Einollahi:
- Failed to consider the public interest as corporate advisers to the Phoenix Four
- Failed to identify which of MG Rover Group, Phoenix Venture Holdings, or the Phoenix Four was Deloitte's client
- Failed to identify and consider conflicts of interest between the MG Rover Group, the A-C shareholders (the executives, employees and dealers of MG Rover) in Phoenix Venture Holdings and the Phoenix FourFailed to make it clear to MG Rover Group that Deloitte did not represent them or act in their interests
- Failed to put in place safeguards between MG Rover Group and the Phoenix Four, including advising MG Rover Group to seek independent advice
- Held themselves out as advising MG Rover Group when in fact they were advising the Phoenix Four.
- Failed to identify, consider and safeguard against the self-interest threat of earning a large contingent fee and acquiring an interest in the venture.
In relation to a scheme to transfer MG Rover Group's tax losses to a company indirectly controlled by the 'Phoenix Four' and enabling substantial payments to be made for the benefit of the Phoenix Four, Deloitte & Touche and Mr Maghsoud Einollahi
- Failed to consider the public interest as corporate advisers to the Phoenix Four.
- Failed to identify and consider conflicts of interest between the MG Rover Group, Phoenix Venture Holdings and the Phoenix Four.
- Failed to make it clear to MG Rover Group that Deloitte did not represent them or act in their interests.
- Failed to put in place safeguards between MG Rover Group and the Phoenix Four, including advising MG Rover Group to seek independent advice.
- Wrongly used an old letter of engagement from another project.
- Failed to identify, consider and safeguard against the self-interest threat of earning a large contingent fee.
It's pretty damning stuff. As the FRC itself noted (my italics), "Deloitte & Touche and Mr Einollahi showed in some instances a persistent and deliberate disregard of the fundamental principles and statements of the ICAEW's code of ethics. The conduct of Deloitte & Touche and Mr Einollahi fell short of the standards reasonably to be expected of, respectively, a member firm and a member of the ICAEW". (The ICAEW is the Institute of Chartered Accountants in England and Wales).
At the initial Accountancy and Actuarial Discipline Board (AADB) Board hearing last year, it emerged that the second transaction on which Deloitte advised the Four men, so called "Project Aircraft", involved exploiting £100 million of MG Rover tax losses by transferring them to an aircraft leasing company.
That leasing firm was in turn bought from Barclays by Phoenix Venture Holdings, the vehicle used by the directors to control the carmaker. Transferring the tax losses to the profitable leasing company generated a tax saving of some £36 million.
The Phoenix Four's share of this saving was £7.7 million, which was in turn paid to a Guernsey trust - to be used by them as a pension fund - that Deloitte helped them set up.
The Phoenix Four paid Deloitte £1.9 million for advising on the transaction.
Timothy Dutton QC acted for the AADB last year and told the preliminary hearing last July that "Deloitte, to coin a phrase, were all over MG Rover Group and they were acting for the Phoenix Four's interests."
Dutton noted that the Phoenix Four had been hailed as "saviours" of Longbridge but "instead, they were structuring transactions with the assistance of the respondents [i.e. Deloitte] to channel very large benefits to themselves; in this instance, £7.7 million into the Guernsey Trust."
As I noted yesterday, more broadly I welcome the decision of the tribunal and the efforts of the FRC to pursue this.
Remember that 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 hugely complex financial structure, with advice. The Four were able 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.
And remember that 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.
This could open the way for a heavy sanction against the Deloitte. The tribunal will calculate sanctions according to guidance issued by the Financial Reporting Council (the FRC), which could result in a fine based on the fee income of the firm (Deloitte has been accused of earning over £9m in fees in relation to two key transactions for the Phoenix Four). Deloitte will also have to pay costs.
If Deloitte is fined, let's hope some of this money could find its way to the Rover Trust Fund to compensate the workers and their families who lost out when the firm went bust. (So far the Phoenix Four - who Deloitte advised - have failed to cough up any money for the ex-MG Rover workers despite the Four having extracted some £42 million in pay and pensions for themselves from the firm over 2000 to 2005).
Let's not forget the workers in all this.
Professor David Bailey works at Coventry University Business School