RSS feedsWhen businesses negotiate terms and conditions with professional services firms, such as accountants, the service provider will usually look to limit its exposure to the risk of huge claims arising from its work.
Tax specialists, in particular, have looked to limit the risk of litigation surrounding their advice, following some huge lawsuits in the US.
So far, the law in the UK has stopped auditors from contractually limiting their level of exposure to claims, but that is about to change.
From 6 April 2008, as a result of the Companies Act, the law will change to allow auditors to calculate and seek agreements with clients to limit their liability.
Auditors have sought this ability for years, and the issue was brought into sharp focus following the collapse of Enron and its auditor Andersen. This has proved controversial, as losing a litigation case was not what caused Andersen to collapse. Yet the fear of another large audit firm going to the wall and the potentially devastating impact that would have on the market has forced the government's hand.
Limited liability agreements will soon be a fact of life for businesses requiring an audit.
'They will have auditors knocking on their door soon,' warns Tony Bromell, head of accounting markets and ethics at the ICAEW.
So, what should companies expect from the new arrangements? How should discussions be handled? And what power does a company really have to ensure that the terms of the deal are acceptable to its shareholders?
Ready to kick off
Bromell says firms will soon start asking their clients about how to formulate limited liability. And, in some cases, tentative discussions have already begun. Reports have already surfaced of discussions between BP, Tomkins and their respective auditors.
'The subject can be broached at any time now, but it cannot be signed until after 6 April,' says Bromell.
But some think that it is premature to have any meaningful negotiations at this time. Ernst & Young senior partner Gerald Russell warns against starting formal negotiations too early. He argues that, with guidance from financial regulator the Financial Reporting Council on the topic not due until the end of the year, no real decisions or deals should be struck until the guidance, issued in a consultative format, is absorbed and understood.
Bromell believes that the guidance from the FRC will not be too prescriptive, leaving options open for both auditors and their clients. However, this could cause its own problems.
Proportionality or cap?
The key issue identified for the accounting profession, and its clients, to consider is whether to agree to a proportional limit on liability, or a monetary cap.
Giles Murphy, head of audit and assurance at Smith & Williamson, explains that caps are commonplace elsewhere, but audit will probably be a different matter.' It seems the whole idea of caps has caused a bit of a stir,' says Murphy.
Caps have been heavily criticised, with some arguing that they would only be used by firms looking to abdicate their financial responsibility for a botched job. Murphy says that, for finance directors in particular, the audit is about the quality of verification, and how efficiently it is undertaken.
Some firms, says Murphy, would argue that a cap does not impact on quality or efficiency, but the next question would be where to set the limit. Would you choose an auditor because it offered the highest cap? How does that guarantee, or suggest, the level of quality of the audit?
Murphy thinks firms could only argue that a cap avoids the 'Armageddon' situation faced by Andersen, even though litigation did not kill the firm. It would also avoid the 'deep pocket situation', he argues, reducing the likelihood that other firms within an accounting network would be forced to cover the damages of another member firm.
Jane Howard, a partner at professional indemnity firm Reynolds Porter Chamberlain, believes most firms will
look to a form of proportionality, as opposed to caps, when discussing plans with audit clients.
But strangely, the markets did not expect there to be a choice until recently. For the reasons above, and others, firms were not expected to be given a choice of limitation by cap. But late changes to legislation permitted the choice.
Signing the contract
Market forces could be key to the way contracts are formed, and in which format. Russell says that the market should not force auditors to win assignments by setting high caps or a high proportion of liability. Auditors that try to win clients on this basis would be 'unprofessional', in his opinion.
James Barbour, director of accounting and auditing at ICAS, says that FRC's guidelines should bring stability to the way in which agreements are structured. That way, both parties don't get into a position whereby agreement cannot be reached, the auditor quits on that basis and then the client cannot find another auditor to take up the work.
'If a business turns down a standard agreement, it wouldn't be easy to go to [other auditors] if the terms were quite standard,' adds Barbour. Each company and every audit is different, so he still expects agreements to require tailoring.
S&W's Murphy says businesses should also bear in mind that service providers tend to face more risk from other service lines, such as tax, and that could influence the level at which audit liability is set at.
Reputational risk is a bigger issue for auditors, and limited liability does not protect against that. But businesses should expect some haggling, Murphy adds, and we may even see some tenders change hands because of it.
The greatest priority for the business, however, is audit quality and maintaining a healthy relationship with its audit firm, which should be considered before ditching a trusted provider.
While there is not a 'wealth of knowledge' on market practice yet, Murphy wonders whether discussions will be any different to that on other services, despite audit's uniqueness.
Reynolds Porter Chamberlain's Howard agrees that guidelines issued by the watchdog will be critical, as both sides will have access to their recommendations, so she believes nothing concrete will be agreed between any two parties until they have been revealed.
Caps, Howard believes, could set off a backlash from clients, as it gives clients the 'whip hand'.
'Clients will be in a good position,' says Howard. 'Caps will be slow to come in'.
But, ominously, she adds that at least one mid-tier firm is putting together proposals for proportionality and cap agreements. 'They're dipping their toe in the water on that.'
Howard suggests the auditors will have some power, as she concedes there is the potential for auditors to drop a client if there is disagreement over liability proposals.
Crowd pleaser
One of the most profound issues that businesses, and their auditors, face is convincing stakeholders that the agreement struck is fair and reasonable. Shareholders will vote to agree on the deal as part of their AGM responsibilities.
Reappointing auditors goes by without any fuss 999 times out of 1,000, but will shareholders be as benign on limited liability? They have become much more active around directors' remuneration.
Advisers suggest that engaging shareholders with the process as early as possible is vital to get them onside. 'If you're a public company you want to make sure [shareholders] will approve it. I would expect institutional investors to be sounded out on this,' said Bromell.
'We're moving into a new area,' says Russell. 'Companies will have to second-guess. When you put things to individual shareholders as you do in an AGM they can do what they like, so business has to educate. Sensible companies will sound out shareholders but you can't cover all of them.
Guidelines, when issued, will lead to accepted norms, says Russell, which should ease this part of the process.
Tactics
DO – begin discussions with your auditor on liability agreements
DON’T – sign any definitive agreements until guidelines have been issued.
Limited liability only comes into effect from 6 April 2008 anyway
ENGAGE – shareholders, who will vote on the agreement you have reached with your audit firm. So involve major stakeholders throughout the process to avoid an embarrassing AGM, and an auditor that reconsiders its position
PROPORTIONALITY – is expected to be the most popular form of liability limitation, but the law allows for caps, and this may suit you and your auditor better
AVOID – firms trying to win work by offering a high cap. It should set off alarm bells – focus on quality instead
WATCH – the market, see what competitors do, read Accountancy Age for the detail on deals struck
TAILOR – the deal to suit your company and its situation. Guidelines and norms are there to help but not to tie down companies. Proportionality, cap or even multiples of fees? You decide.
