UK Quoted Company Newsletter Q2 2021
08 July 2021
1. Temporary restrictions on winding-up petitions and business evictions extended
On 16 June, the Government announced that:- the temporary restrictions on statutory demands and winding up petitions will be extended from 30 June 2021 to 30 September 2021;
- the temporary suspension of wrongful trading and other temporary minor relaxations will not be extended;
- the temporary restrictions on business evictions and landlords using Commercial Rent Arrears Recovery will be extended from 30 June 2021 to 25 March 2022; and
- it intends to pass legislation introducing a new binding arbitration scheme to deal with the outstanding rent arrears that have built up when a business has had to remain closed during the pandemic. The announcement provides that landlords will be expected "to make allowances for the ring-fenced rent arrears from…specific periods of closure due to the pandemic, and share the financial impact with their tenants". Further details of the arbitration scheme are awaited.
2. FCA consults on climate change reporting for certain standard listed companies and regulated entities
On 22 June 2021, the Financial Conduct Authority (FCA) issued two consultation papers on climate change reporting. The FCA is proposing to:- extend the application of its Taskforce on Climate-related Financial Disclosures (TCFD)-aligned Listing Rule for premium-listed commercial companies (LR 9.8.6R(8)) to certain issuers of standard listed equity shares, and is also seeking views on selected environmental, social and governance (ESG) topics in the context of capital markets (CP21/18); and
- introduce TCFD-aligned disclosure requirements for asset managers, life insurers, and FCA-regulated pension providers, with a focus on the information needs of clients and consumers (CP21/17).
| CP21/18 – ENHANCING CLIMATE RELATED DISCLOSURES BY CERTAIN STANDARD LISTED COMPANIES: KEY ASPECTS | ||
|---|---|---|
| ISSUE | DETAIL | SOME POINTS TO NOTE |
| Who | Standard listed equity issuers excluding investment entities and shell companies. The FCA suggests this extension will capture a further 148 companies, with a total market capitalisation of around £1 trillion. | Feedback is also sought on whether to extend the reporting requirement to standard listed issuers of: debt and debt-like securities (LR 17); GDRs (LR 18); and shares other than equity shares. In relation to listed investment vehicles, the FCA notes that some of these will fall within the scope of its proposed TCFD-aligned rules for asset managers (CP21/17). |
| When | Applies in relation to reporting periods beginning on or after 1 January 2022. | This would mean that the first annual reports issued in compliance with the proposed new rule would be published in 2023. |
| Where | The rules would become new LR 14.3.27R and LR 14.3.28G – LR 14.3.31G. | |
| What | A standard listed company in scope should set out in its Annual Financial Report (AFR):
| The FCA proposes to directly mirror the structure and wording of the LR for premium-listed companies. As the FCA does not propose to alter the nature of the rule or associated guidance for standard listed issuers from that which applies to premium-listed issuers, this means, for example, that reporting will have the benefit of a limited "comply or explain" approach. The impact of the new listing rule will depend significantly on the nature of a company's operations and the extent of its existing engagement with climate-related issues. As the proposed guidance states – "..a company in scope should carry out its own assessment to ascertain the appropriate level of detail to be included in its climate-related financial disclosures, taking into account factors such as: (1) the level of its exposure to climate-related risks and opportunities; and (2) the scope and objectives of its climate-related strategy, noting that these factors may relate to the nature, size and complexity of the listed company’s business". |
Other proposals in CP21/18 worth noting include:
Updated TCFD guidance. The FCA notes that the TCFD has published consultations on forward-looking financial sector metrics and on metrics, targets and transition planning. Assuming the final versions remain broadly consistent with the consultation versions, the FCA proposes to incorporate them into the FCA Handbook guidance when it finalises its policy position – both in chapter 9 for premium listed issuers and chapter 14 for standard listed issuers.
FCA encourages companies to use SASB metrics. The FCA notes that the TCFD’s framework falls short of a corporate reporting standard and that additional specificity and granularity may be necessary to meet investors' needs. It notes that existing voluntary frameworks can complement the TCFD’s recommendations and, in this context, mentions the Sustainability Accounting Standards Board (SASB) standards. The SASB standards, which seek to guide corporate disclosure of financially-material sustainability information, comprise 77 industry-specific disclosure topics and metrics (the SASB metrics). The FCA will encourage listed companies to consider the SASB metrics for their sector when making their TCFD disclosures, although it does not propose to include anything specific in the listing rules or guidance. See the SASB website for more - https://www.sasb.org/.
No change yet to the "comply or explain" basis of reporting. The FCA had previously said that it would review the compliance basis for its climate related reporting rules (in LR 9 and for the proposed LR 14 rule). While noting its strong support for a pathway to mandatory climate-related disclosures, the FCA does not believe that now is the right time to consult on moving to a mandatory compliance basis or away from the current limited comply or explain model. Moreover, it notes that the speed with which the International Financial Reporting Standards Foundation seems to be progressing with its plans to create an International Sustainability Standards Board means that a draft of a common international reporting standard for sustainability, starting with climate change, could be issued in the first half of 2022 (see part 3 below for more on international sustainability developments). In turn, this is likely to have an impact on the FCA's approach to reporting.
ESG integration in UK capital markets. In chapter 4 of CP21/18, the FCA states that it has been considering the integration of wider ESG matters in UK capital markets as part of its review of the effectiveness of primary markets. To inform its policy work in this area, it is looking to generate discussion as regards issues related to: (i) green, social or sustainability labelled debt instruments; and (ii) ESG data and rating providers. The FCA expects to issue a Feedback Statement on this discussion chapter separately from the rest of CP21/18.
Next steps. Following the close of the CP21/18 on 10 September, the FCA will consider the responses. It aims to publish a Policy Statement with the finalised rules by the end of 2021.
FCA CP 21/17 - Enhancing climate-related disclosures by asset managers, life insurers and FCA-regulated pension providers. CP21/17 proposes a climate-related financial disclosure regime for asset managers, life insurers and FCA-regulated pension providers consistent with the TCFD’s recommendations. It aims to increase transparency and enable clients and consumers to make considered choices, while remaining proportionate for firms.
3. Sustainability developments - domestic and international
The UK Green Taxonomy and Green Taxonomy Advisory Group. In June 2021, the Government announced the establishment of a new group, the Green Technical Advisory Group (GTAG). It will oversee the delivery of the UK's “Green Taxonomy” – a framework which, like its European equivalent, will determine whether investments can be defined as environmentally sustainable through the use of technical screening criteria. The launch of GTAG is a critical step towards achieving a UK Taxonomy by the expected date of the end of 2022. For more, see our June 2021 client briefing – "UK Taxonomy is go go go".
The FCA publishes a new webpage focused on climate change and sustainable finance. In April 2021, the FCA published a new webpage incorporating resources and information on the FCA's strategic approach to sustainable finance and climate change, noting that climate change and sustainability are increasingly affecting listed companies, regulated firms and consumers. It follows the March 2021 letter from the Chancellor to the FCA which stated that the FCA should consider the government's commitment to achieve a net-zero economy by 2050 when working to advance its objectives and performing its functions as a regulator. The FCA's sustainable finance strategy is based on three themes as set out below.
| FCA SUSTAINABLE FINANCE STRATEGY: THREE THEMES | |
|---|---|
| Transparency | Promoting good disclosures along the investment chain. |
| Trust | Ensuring that the market delivers sustainable finance instruments and products that genuinely meet investors' sustainability preferences. |
| Tools | Government, regulators and industry all working together to share experience, develop guidance and tools, and provide mutual support as the challenges of climate change are addressed. |
New climate reporting requirements for occupational pension schemes. In June 2021, the Government published a further response to the consultations it carried out to improve reporting standards and governance by occupational pension schemes in relation to climate-related risks and opportunities. The government's response was accompanied by new draft regulations, which have now been laid before Parliament.
The purpose of the regulations is to implement new reporting standards aligned with the TCFD recommendations. The draft regulations, which are accompanied by statutory guidance, will come into force on 1 October 2021 for very large schemes (with assets over £5bn), and then in staged intervals for smaller pension schemes. When the new framework is in place, trustees of occupational pension schemes will need to comply with additional reporting and disclosure requirements, and ensure that they have the requisite knowledge and understanding of climate-related issues, while also taking care that, when setting their scheme's investment strategy, they consider climate-related issues in the context of their general fiduciary duties to invest in members' best financial interests.
Glass Lewis position paper on say on climate votes. In April 2021, Glass Lewis issued a position paper noting that a number of both management and shareholder proposals dealing with a 'Say on Climate' are being put to shareholders during the 2021 AGM season.
Whilst Glass Lewis strongly supports more disclosure, particularly when it is aligned with the TCFD recommendations, it is concerned at the potential unintended consequences of offering a shareholder vote on a climate plan or strategy. It is concerned that it could lead to some investors, who may not have the capacity or technical ability to analyse these plans, providing a rubber stamp for climate strategies that are out of alignment with broader climate goals. Given these concerns, Glass Lewis will look closely at the proposals being put to shareholders and will:
- generally recommend voting against management and shareholder proposals requesting that companies adopt a policy that provides shareholders with an annual Say on Climate vote on a plan or strategy; and
- when companies bypass that step and place their climate plans up for an advisory vote, Glass Lewis will evaluate those plans on a case-by-case basis. The paper sets out some issues that Glass Lewis will look for, including instances where it believes that plans insufficiently address issues related to climate change, in which case it may, instead of abstaining, recommend that shareholders vote against such plans.
QCA practical guide to ESG. The Quoted Companies Alliance has published a practical guide to ESG for small and mid-sized quoted companies. The guide outlines how company boards and senior management teams should take ownership of their ESG story and start the conversation with their investors and then details five steps that companies can take to further develop their approach to ESG. (The guide can be purchased from the QCA website. It is free for members).
IFRS Foundation sustainability reporting project progresses. International efforts to improve sustainability reporting have been on-going for some time. Of particular note is the work of the International Financial Reporting Standards (IFRS) Foundation, which is planning to create an International Sustainability Standards Board (ISSB) alongside its existing International Accounting Standards Board.
In April 2021, the IFRS Trustees published two documents as part of their sustainability reporting project. The first, a Feedback Statement, summarises the significant matters raised by respondents to the September 2020 Consultation Paper on Sustainability Reporting. A total of 577 responses were submitted from organisations and individuals from around the world, with feedback indicating growing and urgent demand for global standards and broad support for the creation of a new sustainability standards board under the IFRS Foundation's governance structure. Steps taken to set up the ISSB include the formation of the Technical Readiness Working Group (which consists of amongst others, the TCFD and the Value Reporting Foundation) and the setting of the strategic direction for the ISSB (see the table adjacent for more).
| PROPOSED INTERNATIONAL SUSTAINABILITY STANDARDS BOARD: STRATEGIC DIRECTION | |
|---|---|
| Investor focus for enterprise value | The ISSB will focus on information that is material to the decisions of investors and other participants in the world’s capital markets. |
| Sustainability scope, prioritising climate | Due to the urgent need for better information about climate-related matters, the new board will initially focus its efforts on climate-related reporting, while also working towards meeting the information needs of investors on other ESG matters. |
The second document issued by the IFRS Trustees is an Exposure Draft that outlines proposed targeted amendments to the IFRS Foundation Constitution to accommodate the proposed new ISSB. The proposed amendments are open for comment until 29 July 2021.
While next steps are uncertain, a final determination may be made in November 2021, possibly to be announced at the 2021 United Nations Climate Change Conference (COP 26) being held in Glasgow.
IOSCO report on sustainability-related issuer disclosures. In June 2021, the International Organisation of Securities Commissions (IOSCO) issued a report on sustainability-related disclosures. The report concentrates on the work of IOSCO's board-level Sustainable Finance Taskforce in particular in relation to corporate issuers’ sustainability-related disclosures. The report notes IOSCO's encouragement for, and deeper collaboration with, the IFRS Foundation sustainability reporting project and the setting up of the ISSB. IOSCO notes that the report is a crucial part of its engagement with the IFRS Foundation and that it demonstrates: (i) investor demand for sustainability-related information and evidence that this demand is not being properly met; and (ii) the need for improvements in the current landscape of sustainability standard-setting.
Investors call for better environmental disclosures from more than 1000 high-impact companies. In June 2021, the Climate Disclosure Project (CDP) announced a campaign to put pressure on some of the globe’s highest impact corporations, who do not currently voluntarily disclose to the CDP on one or all of its key themes of climate, water and forests. Investors involved in the 2021 campaign include Aviva Investors, HSBC Asset Management, Legal & General Investment Managers, M&G Investments and Schroders. Several UK companies are among those that are targeted.
Value Reporting Foundation. In June 2021, SASB and the International Integrated Reporting Council announced that they had merged and are now known as the Value Reporting Foundation.
EU sustainability measures. In April 2021, the European Commission adopted a package of measures designed to help improve the flow of money towards sustainable activities across the EU. The package includes:
- Political agreement being reached on the text of the EU Taxonomy Climate Delegated Act (the Act), which introduces a set of technical screening criteria to define which activities substantially contribute to two of the environmental objectives under the Taxonomy Regulation - i.e. climate change adaptation and climate change mitigation. The Act currently includes sectors such as energy, forestry, manufacturing, transport and buildings but it will continue to evolve over time. The Act was formally adopted in June 2021 and will apply from 1 January 2022.
- A proposal for a Corporate Sustainability Reporting Directive, which aims to make sustainability reporting by companies introduced by the Non-Financial Reporting Directive more detailed and consistent. It will also extend the EU's sustainability reporting requirements to all large companies whether listed or not.
The UK has decided not to implement the EU Taxonomy Regulation, instead choosing to work on its own taxonomy (see the article above on the UK Green Taxonomy)). It remains to be seen how closely the UK Government chooses to align its taxonomy regime and its narrative reporting requirements with those of the EU.
4. Government response to the Listings Review
On 21 April 2021, HM Treasury (HMT) released a statement setting out how it intends to take forward each of the relevant recommendations made in Lord Hill's UK Listings Review (the Review), published in March 2021. The Review proposed a modernisation of the Listing Rules and a reframing of the prospectus regime in a post-Brexit landscape. See our Q1 2021 newsletter for a summary of the Review or our detailed April client briefing - UK Listings Review Report.
Of the six key recommendations which were directed at HMT, three concerned prospectuses – a review of the prospectus regime, consideration of whether prospectuses prepared in foreign jurisdictions can be used in the context of secondary UK listings and facilitation of the use of forward-looking information in prospectuses. The next article deals with the consequential HMT consultation on the UK prospectus regime.
Among other steps to be taken by the Government in response to the Review, the statement confirmed that the Chancellor will present an annual "State of the City" report to Parliament, with the first of such reports being delivered in 2022, and that a group of experts will be convened to review how to improve the efficiency of further capital raisings.
By way of reminder, the FCA welcomed the recommendations which were directed towards it in the Review, responding with particular alacrity to Lord Hill's proposals relating to special purpose acquisition companies (SPACs). As a result, it is aiming for its new rules and guidance on SPACs to be implemented by early summer.
5. Prospectus regime consultation
On 1 July 2021, HMT published a consultation on the UK prospectus regime (the Prospectus Consultation). As set out in section 4 above, one of Lord Hill's principal recommendations in the Review was a re-evaluation of the UK’s prospectus regime in a post-Brexit landscape.
In the Prospectus Consultation, the Government sets outs how it proposes reviewing and potentially replacing the UK prospectus regime. By way of reminder, under the current regime, a prospectus must be published before: (i) an offer of transferable securities is made to the public in the UK; or (ii) a request is made for the admission of transferable securities to trading on a UK regulated market, unless, in either case, an exemption applies. The Prospectus Consultation proposes an overhaul of this regime, suggesting that public offers and admissions should be treated separately.
Among other proposals, the Prospectus Consultation also sets out proposals: (i) to give the FCA the discretion to recognise overseas approved prospectuses such that more secondary listings would be encouraged; and (ii) suggested amendments to the prospectus liability regime to facilitate the inclusion of forward-looking information in prospectuses.
The Prospectus Consultation closes on 24 September 2021.
Also on 1 July 2021, HMT published Consultation Paper: Wholesale Markets Review as part of its broader proposals in respect of capital markets reform.
6. Primary Markets Effectiveness Review
On 5 July 2021, the FCA published Consultation Paper: Primary Markets Effectiveness Review, comprising a consultation on a series of proposed reforms and a broader discussion which seeks views on the overall structure of the listing regime to ensure the UK remains an attractive and dynamic listing venue.
The proposals build on the recommendations of both the UK Listings Review Report and the Kalifa Review of UK FinTech and aim to remove barriers to listing, ensure the listing regime continues to uphold the highest standards of market integrity and improve the accessibility of the FCA rulebooks. They include the following:
- allowing a targeted form of dual class share structures within the premium listing segment;
- reducing the amount of shares an issuer is required to have in public hands (i.e. free float) from 25 per cent to 10 per cent;
- increasing the minimum market capitalisation threshold for both the premium and standard listing segments for shares in companies other than funds from £700,000 to £50 million; and
- making minor amendments to the Listing Rules, Disclosure Guidance and Transparency Rules and the Prospectus Regulation Rules to simplify the FCA's rulebooks and reflect changes in technology and market practices.
In relation to the above proposals, the consultation closes on 14 September 2021, with the FCA aiming to make relevant rules before the end of 2021. In relation to the discussion areas, the FCA will provide feedback and, if appropriate, may consult further on wider listing regime changes in the future.
7. Market abuse regime updates
On 29 April 2021, the Financial Services Bill 2019–2021 received Royal Assent, becoming the Financial Services Act 2021 (the Act). By way of reminder, the Act aims to ensure that the UK's financial services regulatory framework continues to function effectively following the UK's departure from the EU. The Act covers a broad range of areas including benchmarks, money laundering and market abuse, amongst others.
In respect of market abuse, the Act makes the following amendments to the UK Market Abuse Regulation:
- Insider lists - the Act clarifies that issuers and any person acting on their behalf or on their account are all required to maintain an insider list; and
- Managers' transactions - the Act adjusts the timeframe within which issuers are required to disclose to the public transactions by their PDMRs (or persons closely associated with them) from the current three business days after the transaction to within two working days of receipt of the relevant notification.
The above provisions entered into force on 29 June 2021.
The Act also increases the maximum sentence for insider dealing offences under the Criminal Justice Act 1993 and market manipulation offences under the Financial Services Act 2012 from seven to ten years. The commencement date for these increases has not yet been announced.
8. New workers' watchdog for employment rights and modern slavery
In June 2021, BEIS issued its long-awaited response to its July 2019 consultation on "Good Work Plan: establishing a new single enforcement body for employment rights".
BEIS confirms that it will bring together certain existing organisations to create a new workers’ watchdog to protect the rights of UK workers. The new body will take over responsibility for tackling modern slavery, enforcing the minimum wage and protecting agency workers, among other things.
In particular as regards modern slavery reporting, the new body will be able to impose financial penalties for non-compliance with the Modern Slavery Act 2015 (MSA) reporting regime.
"This body will not just protect workers, it will also help to provide a level playing field for the majority of employers who respect the law, and who also lose out when unscrupulous businesses cut corners and exploit workers." BEIS RESPONSE STATEMENT, JUNE 2021
By way of reminder, we wrote in our Q3 2020 newsletter about the government's September 2020 response to its consultation on transparency in supply chains. In the response, the government confirmed its intention to strengthen reporting under the MSA by, among other things, mandating the current six suggested areas of disclosure for modern slavery statements and also by setting up a central online registry for the filing of modern slavery statements.
There is no set time for any of these changes to be brought into force, many of which will require primary legislation. See our client briefing - A new one stop shop employment watchdog is on the horizon: what does this mean for employers - for more on the new enforcement body generally.
9. FRC publications
In the last quarter, the Financial Reporting Council (FRC) has published the following publications which are worthy of note:
| title | summary |
|---|---|
| Workforce engagement lies at the heart of good corporate governance (May 2021) | The FRC has published research on reporting on engagement with the workforce, which found that many FTSE 350 annual reports appear to downplay the importance of their workforce engagement. Key takeaways include that:
(See our Ashurst Governance & Compliance update - Issue 1 for more). |
| Interim reporting (May 2021) | The FRC has highlighted examples of good practice in companies' interim reporting and areas where further improvements are required. It reviewed the reports of 20 quoted companies across a range of industries to assess the quality of interim reporting. |
| Corporate Governance Code increases reporting on remuneration practices (May 2021) | The FRC has published research which assessed a sample of FTSE 350 companies to determine the extent to which they have applied requirements set by the updated UK Corporate Governance Code in 2020. Headline findings include that:
(See our Ashurst Governance & Compliance update - Issue 1 for more). |
10. Stamping and filing documents
HMRC announces end of physical stamping. In June 2021, HMRC announced that it will discontinue all physical stamping in relation to stamp duty with effect from 19 July 2021. This affects all transfers and instruments that stamp duty arises in connection with, or is payable on.
From 19 July, the electronic procedure, namely submission of the relevant stamping documents by email, that had been introduced as a temporary measure in response to COVID-19 will be the only valid method of stamping. HMRC's updated guidance on completing a stock transfer form and getting it processed is available here.
Companies House resumes same day filing service for changes of name and incorporation. In April 2021, Companies House updated its Coronavirus guidance to confirm that it had resumed its same day filing service for the electronic filing of a change of company name or to incorporate a company (software filing only).
Applications must be made before 11.00 am for the same day service to be available. Filings made after 11.00 am will be processed on the next working day.
All other same day services remain suspended until further notice.
11. Law Commission papers on corporate criminal liability and digital assets
Law Commission discussion paper on corporate criminal liability. In June 2021, the Law Commission (set up to promote the reform of law) published a discussion paper on corporate criminal liability with options for future reform. It seeks responses by 31 August 2021.
The paper reviews the law on the criminal liability of non-natural persons, including companies and limited liability partnerships. It notes that the current position is that such legal persons usually may only be convicted of a criminal offence if they are: (i) guilty of an offence without any fault element, sometimes known as a "strict liability" offence; or (ii) guilty of a fault offence in accordance with the "identification doctrine", where an individual or group of individuals who are very senior within an organisation (being the "directing will and mind" of the organisation) has the necessary fault element.
The paper also looks at: criticisms of the current law; some specific examples of legislation such as the Corporate Manslaughter and Corporate Homicide Act 2007; the "failure to prevent" offences of the Bribery Act 2010; deferred prosecutions agreements; and criminal liability of directors and other individuals for corporate misconduct.
Questions that the paper asks include:
- Is the identification doctrine a satisfactory basis for attributing criminal responsibility to non-natural persons? If not, is there merit in other approaches? These might include: where the acts of others can be attributed to the company, eg senior management or an employee, representative or agent acting in the scope of their employment or agency; or where there is a corporate culture that directed, encouraged, tolerated or led to non-compliance with the relevant law.
- Should there be "failure to prevent" offences (akin to those covering bribery and facilitation of tax evasion) in respect of fraud and other economic crimes?
- Is there merit in extending the powers of authorities in England and Wales to impose civil penalties, and in what circumstances might this be appropriate?
- What principles should govern the individual criminal liability of directors for the actions of corporate bodies?
- What principles should govern the sentencing of non-natural persons?
Law Commission call for evidence on digital assets. In April 2021, the Law Commission published a call for evidence on digital assets. Responses are requested by 30 July 2021.
The paper notes the increasing importance of digital assets (assets that are represented digitally or electronically) in modern society and their use for an expanding variety of purposes, including as a means of payment or to represent other things or rights. The paper also notes that the law of England and Wales does not currently provide certainty as to the legal status of digital assets and that legal certainty would lay a strong foundation for the development and adoption of digital assets and also incentivise the use of the law and jurisdiction of England and Wales in transactions concerning those assets.
The Law Commission digital assets project aims to ensure that property rights - by which it means the consensus between people as to how digital assets should be held, used and exchanged - receive full and consistent recognition and protection under the law. As a result, the paper asks for information on the below and will use responses to inform its proposals for law reform in a subsequent consultation on digital assets:
- how digital assets are used, treated and dealt with by market participants;
- how the law might accommodate digital assets now and in the future; and
- where the law might be inhibiting particular use cases, innovation or development.
12. Supreme Court - duty of care owed by a professional adviser
In June 2021, the Supreme Court gave its judgment in a case (Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20) which considered how to ascertain the scope of a professional adviser's duty of care and hence whether a particular loss falls within that duty. The case should be read with another case decided by the court at the same time also on duty of care (Khan v Meadows [2021] UKSC 21). In coming to its judgment, the court looked at the previous leading case of South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 (SAAMCO).
The facts of the case centred around professional advice given by accountants to a client building society. The accountants wrongly advised that the society's accounts could be prepared according to the "hedge accounting" method and that accounts prepared using that method gave a true and fair view. As a result, the society entered into long-term interest rate swaps. When the accountant realised its error, the society had to restate its accounts, showing substantially reduced assets and insufficient regulatory capital. To remedy the situation, the society closed out the interest rate swap contracts early at a cost of over £32 million. The court held that the accountant was liable for the loss suffered by the society in breaking the swaps early, although subject to a reduction in damages of 50 per cent for contributory negligence.
As regards the scope of the duty of care assumed by a professional adviser, the court held that it is governed by the purpose of that duty, judged on an objective basis by reference to the reason why the advice is being given. One should look to see what risk the duty was supposed to guard against and then whether the loss suffered represented the fruition of that risk.
Here, the purpose of the accountant's advice was to establish whether the society could use hedge accounting within the constraints of the relevant regulatory environment. The accountant negligently advised that it could. As a result of the negligent advice, the society entered into swap transactions and was exposed to the risk of loss in breaking the swaps when it was realised that hedge accounting could not in fact be used. This exposed the society to regulatory capital demands which the use of hedge accounting was supposed to avoid. The loss suffered by the society therefore fell within the scope of the duty of care assumed by the accountant, in light of the purpose of the advice.
As regards the previous leading authority of SAAMCO, the court held that the distinction that was made in that case between 'advice' cases and ‘information’ cases should not be treated as a rigid straitjacket, since in reality most information given by a professional adviser is "usually a specific form of advice" and that "most advice will involve conveying information". Rather, the focus should be on identifying the purpose to be served by the duty of care assumed by the defendant. Related to this, the court said that the SAAMCO counterfactual test, which applies in "information" cases and asks whether the claimant’s actions would have resulted in the same loss if the advice given by the defendant had been correct, is simply a tool to cross-check the result given pursuant to an analysis of the purpose of the duty. It is subordinate to the purpose analysis and should not supplant or subsume it.
Ashurst publications in the second quarter of 2021
Ashurst has published a number of client updates and podcasts in the second quarter of 2021, a selection of which are set out below.
Corporate, Finance and Restructuring
How boards should be thinking about climate change
Ashurst Governance & Compliance update - Issue 1
Ashurst Governance & Compliance update – Issue 2
The Governance Agenda - Priorities for boards in 2021
Temporary restrictions on winding-up petitions and business evictions extended again
UK National Security and Investment Act receives Royal Assent
Corporate Insolvency and Governance Act 2020: One year on
Contracts: What's Hot, What's Not
Digital Economy
Funds Insider (including articles on Crypto M&A; red flags from green investors; and investing in technology)
Dispute Resolution
UK Bribery Act turns Ten: Looking back at the past decade, and at the future of ABC enforcement
Reshaping the UK's law on corporate criminal liability? Law Commission consultation announced
Modern slavery enforcement watchdog announced
Thought for the Week: NCA's Strategic Assessment 2021 - key takeaways for businesses
The UK's Global Anti-Corruption Sanctions: key points to note
No-go for Lugano? European Commission recommends against UK accession
ESG Litigation: spotlight on human rights
Employment, Incentives and Pensions
A new "one stop shop" employment watchdog is on the horizon - what does this mean for employers?
Equality Act: Choosing a suitable comparator - two recent cases
The Supreme Court rules on the national minimum wage entitlement for "sleep-in" shifts
Tax
Global tax reform – some key questions
Upper Tribunal finds in taxpayer's favour in Ashurst instructed case
