1.1 STAYING OUT OF TROUBLE

In this book, we do not explain the aptitudes demanded for a career in forensic accountancy. Nor do we provide a technical analysis of accounting and auditing requirements. In short, this book is not a text on how to become a forensic accountant, but instead it is about how to avoid needing a forensic accountant. Therefore, our purpose is practical and directly relevant to the work of accountants and auditors in public practice, the lawyers who act for them when trouble threatens and, of course, the insurers who underwrite their obligatory indemnity policies.

In compiling this text we have extracted the essential lessons that the circumstances hold for the generality of practising accountants. These lessons are distilled from hundreds of cases, in all of which accountants/auditors have found themselves in the legal or disciplinary firing line. For many years we have been personally involved in assessing the merits of claims brought against accountants for the benefit of the legal advisors of either defendants or claimants. Indeed, most of the cases that feature in this book, all of which are taken from ‘real life’, have been drawn from our own extensive case-book. All names used in these cases are, for obvious reasons, fictitious!

From the above it will be clear that this book is not a theoretical treatise. It is a first-hand account of the consequences, for accountants, of the myriad types of mistake that would have been eminently avoidable ‘if only they had . . .’ whatever! After a combined experience of some 40 years in the business of forensic accountancy the authors have several enduring messages to pass on to professional colleagues everywhere.

Although most of the litigation described in this book is UK-based, there are no territorial barriers to allegations of negligence where accountants are concerned. Financial statements are universally required to present an entity’s financial results and position ‘fairly’ or to ‘give a true and fair view’ ; and the methodology whereby auditors put themselves in a position to append their imprimatur is increasingly standardised and globally adopted.

This text is divided broadly by reference to subject matter. However, there are no neat boundaries to the areas in which accountants can find themselves in difficulty. For example, issues that we have included in Chapters 2 and 3 on auditors’ negligence may equally arise in the disciplinary context (Chapter 6), and claims arising from fee disputes, dealing with chaotic clients and failure to maintain adequate file documentation will give rise to lessons under several headings. Similarly, allegations of negligence may arise when accountants undertake specialist share valuations and when auditors are instructed to value shares held by parties in dispute - in this book such instances will be found in Chapters 2 and 3 on auditors’ negligence and Chapter 4 on accountants’ negligence. The apparent overlap of subject matter should therefore be understood in this context.

1.2 THE FORENSIC ACCOUNTANT’S ROLE

Although this book is not about how to become a forensic accountant, it would not have been possible to write it if the authors had not spent so many years in the roles of forensic accountant and expert witness, principally in the area of accountants’ negligence and disciplinary transgressions.

The book is aimed primarily at practising accountants, their legal representatives and insurers. Although it is bound to be of interest to forensic accountants and expert witnesses, that interest is incidental and this section of the introductory chapter merely sets the scene by describing the rigorous disciplines that the authors have been subject to in the course of their long involvement with accountants’ litigation. It is this experience that informs the subject matter of the chapters that follow.

The term ‘forensic’ is derived from the Latin ‘forum’, or meeting place. The modern term has been coined to connote a relationship with the forum of the Courts or with legal matters generally. Thus, forensic accountancy means the use of accountancy knowledge to assist the Courts, or in seeking otherwise to resolve legal disputes.

It is obvious that the technicalities of accounting, auditing and other specialisms within the accountant’s skill-set are not widely understood by non-accountants. If, therefore, in the context of a legal dispute, the conduct of an accountant is in issue, the parties, their legal advisers and, ultimately, the Court will require ‘expert’ evidence from one or more independent accountants. This is why forensic accountants are frequently called upon to act as ‘expert witnesses’.

Not all accountants practise auditing, although most will, on qualifying as accountants, have gained (through their training, experience and examinations) an entitlement to undertake audits, subject to obtaining ‘responsible individual’ status. Since the auditing discipline clearly demands a comprehensive grasp of accounting and financial reporting standards, regulation and general professional practice, the term forensic accountancy should be taken to include expertise in the key sub-discipline of auditing.

1.3 MAINTAINING IMPARTIALITY

Although expert witnesses are usually appointed by one or other of the litigating parties, it is essential that such witnesses maintain a detached and independent stance at all stages of the litigation process. Expert witnesses may choose to measure success in terms of the number of cases in which the decision of the Courts has favoured their clients. For us, however, just as critical a measure has been the number of cases in which we have prevailed upon an indignant client (and his or her lawyers) to desist from pursuing litigation that lacks sufficient merit to withstand the spotlight of objective courtroom scrutiny.

The conduct of civil litigation is governed by the 1999 Civil Procedure Rules (CPR). These rules were introduced to ease pressure on the Courts by weeding out cases that would be more cost-effectively dealt with by recourse to alternative methods of dispute resolution such as arbitration, expert determination or, in particular, mediation.

1.4 THE DISCIPLINES OF EXPERT WITNESS WORK

Those giving expert evidence, although invariably bound to observe the standards and codes of conduct of their own professional bodies, are equally bound to adhere to those sections of the CPR that relate specifically to the role of experts, whether party-appointed or, in an increasing number of cases, appointed by the parties jointly or even by the Court.

Experts whose evidence, whether as presented in their formal reports or given orally under cross-examination, appears to the Court to be biased in favour of those instructing them, risk the disapprobation of the Court and of having their evidence totally discredited.

In the specific field of professional negligence the Courts are bound to rely, in the context of accounting, tax or audit work, on evidence submitted by the professional peers of those whose conduct is alleged to have fallen below the requisite ‘standard’. The latter is an objective test applied by the Courts, although it relies in particular cases on the subjective assessment of experts in the relevant field. Such an assessment may, in key respects, differ substantively as between one expert and another - which is obvious, since if the respective parties’ experts found themselves to be in complete agreement on the issues, there would be little scope for expensive litigation!

1.5 CONDUCT THAT IS ‘REASONABLY COMPETENT’

The requisite standard referred to in the previous section is, of course, the standard of work that would have been undertaken by a reasonably competent accountant, auditor or tax adviser, as the case may be. If, for example, a company’s audited balance sheet includes assets that are shown subsequently to have been materially overstated, the Court will wish to hear expert evidence on whether a reasonably competent (not the most competent auditor in the land) would, in the ordinary course of the audit, have performed tests that had a reasonable expectation of detecting that overstatement.

The expert accountant or auditor engaged to provide an opinion on a fellow professional’s work brings to bear not only technical expertise on the specific issues, but also a wealth of experience gained in comparable cases, and is thus able to inject a crucial measure of objectivity into often fraught proceedings. Claimants are understandably indignant at having lost money, while their auditors may be instinctively over-defensive, even deeply offended, at the very idea of being sued. Yet the most cost-effectively sensible resolution, which will often have the backing of the auditor’s insurers, is usually for the claimant to seek compensation for the consequences of perceived wrongs through the process of a negotiated settlement. The impartial input of an independent expert can be the catalyst for achieving this aim.

1.6 THE DISCIPLINARY ARENA

The majority of practising accountants, like members of most respected professions, are required to comply with codes of conduct developed and periodically updated by their professional bodies to keep pace with changing circumstances. The Code of Ethics published by the ICAEW in 2006 is one example. These codes are laid down either as guidance on best practice or as mandatory rules with which all members must comply. These strictures are supported by disciplinary sanctions that are applied in instances of proven non-compliance.

The emphasis in the non-mandatory guidance is on the need for members to conduct themselves in such a manner that their professional integrity is seen to be maintained and not impugned, and will relate to such matters as keeping the client informed of the scale of charges being incurred, responding to correspondence within a reasonable timescale or putting in place an appropriate complaints procedure.

More serious issues are addressed in the codes of mandatory conduct and concern, for example, matters such as the following: competence with which the accountant’s work has been performed; the need to avoid conflicts of interest when, say, acting for both parties to a transaction; preserving independence when acting in an auditing capacity and ensuring that such independence is perceived to be in place; undertaking work in a ‘reserved area’ in which the accountant demonstrably lacks proven competence; and, more generally, not performing any action that might bring the accountant, the firm, the professional body or the profession of accountancy into disrepute as a consequence.

For the disciplinary machinery to be set in motion, a formal complaint needs to be registered with the professional body, and there are designated procedures for assessing the weight and the seriousness with which complaints should be taken. Since adverse findings in a disciplinary forum may prove to be a preamble to litigation, accountants and their insurers clearly need to view any such complaints with the utmost seriousness. Complaints considered by the professional body to be frivolous, mischievous or otherwise unworthy of further consideration will be given short shrift. Others, which clearly demonstrate that there is a case to be answered, will be dealt with in accordance with a disciplinary process that is thorough but often hugely time-consuming for the accountant and his or her firm. Complaints that concern matters with a prominent public profile, either because of the sums of money involved or because of sensitivities due to the high profile of the parties/entities involved, or because of widespread interests such as in a public offering of shares, will normally be dealt with in the more public arena of the Joint Disciplinary Scheme or the Accountants and Actuaries Discipline Board.

Although the conduct of disciplinary procedures is less formal than in a Court of law, there are obvious parallels in the way evidence is heard, and the tribunal hearing a particular case may well include a lawyer and a lay member. This is clearly another area in which the services of suitably experienced expert witnesses will be critical.

1.7 LITIGATION IN THE CURRENT CLIMATE

The current economic crisis, which began in 2008, is global in its sweep, and yet there is no consensus on the apportionment of culpability to each of its contributing elements. Several such elements have been publicly cited, including: inept governance; ‘light-touch’ regulation; negligent audits; procyclical financial reporting standards that exacerbate distortion; outdated computer modelling by rating agencies; and the bonus culture that has blinded banks to the precariousness of their own crumbling balance sheets.

What is certain, however, is that this lethal cocktail of self-serving deception has led to the loss of vast amounts of money, in respect of which restitution will continue to be sought via civil Courts in many countries, but most notably in the UK and USA.

Shareholders in financial institutions whose holdings have effectively been destroyed by ‘rescue’ rights issues, shot-gun ‘mergers’ with other investment houses or banks or, more simply, by the discovery that an apparently healthy, audited, balance sheet is in reality crippled with worthless assets, may well feel encouraged to test the conduct of the management and the auditors in the objective forum of the Courts.

Even if the factors contributing to the 2008/9 credit crisis are set aside, it is an historic fact that an inverse relationship exists between the severity of any economic downturn and a rise in disputes requiring recourse to law. When times are tough overdrafts are called in, staff are laid off, suppliers are more demanding, and businesses that in their own commercial terms are unquestionably viable are suddenly faced with having to call in the receivers.

Whenever money is lost, compensation is sought; and professional advisers, notably accountants and auditors, are consistently perceived as having deep insurance-backed pockets. The question of merit is often relegated to the status of an afterthought.

Many claimants, desperate for recovery of at least some of their losses, will adopt a scatter-gun strategy in a legal framework that still incorporates joint and several liability, in anticipation that professional defendants (and their insurers) will prefer to settle a claim rather than face the risks, trauma and expense of a full trial.

We live in such times.

To assist readers in forming a coherent grasp of the multi-faceted subject matter, at the conclusion of each chapter we restate the key lessons to be gleaned from the pitfalls described in that chapter’s cases.

Auditors’ Failure to Detect Theft, Embezzlement and Financial Crime

2.1 SUMMARY OF TYPES OF FRAUD

The following list provides a summary of some different types of fraud:

• Theft of cash through:

• Skimming: removal of cash from an entity before it enters the accounting system. The most common skimming techniques are:

• failing to record sales;

• understating sales;

• theft of incoming cheques.

• Larceny: stealing funds belonging to an entity.

• Fraudulent disbursements: These frauds include:

• preparation of fraudulent cheques for personal benefit;

• diversion of cheques intended for a third party for personal benefit ;

• fraudulent refunds and void entries on a cash register;

• submission of fraudulent invoices to cause an entity to buy non-existent, overpriced or unnecessary goods or services, for example, the creation of shell companies, overbilling by apparently legitimate vendors or use of company funds to meet personal expenditure.

• Sales/debtors ledger frauds, which provide a mechanism for the theft of cash and usually involving:

• teeming and lading (see glossary of terms);

• setting up fictitious accounts in the sales/debtors ledger to disguise fictitious sales;

• recording false credit entries as discounts, returns or write-offs.

• Stock frauds, which involve the misappropriation of stock for personal use, stealing stock or scrap, or charging funds misappropriated to stock.

• Theft or unauthorised personal use of fixed assets is a common type of fraud, particularly if the assets are easily removable from the entity’s premises.

2.2 INTRODUCTION

The discovery of any long-running corporate fraud invariably triggers questions concerning the failure of auditors to detect it. Even when the auditors themselves bring the fraud to light, they will be challenged on why they did not do so in the course of earlier audits.

Were they asleep on their watch? How could they have attached their ‘true and fair’ imprimatur to accounts that failed to disclose the fact that serious fraud had depleted corporate assets and profits?

When, in the USA in the mid-1970s, the massive Equity Funding fraud became public, a frequently heard refrain was offered by apologists for the auditing profession to the effect that routine auditing procedures are simply not designed to detect fraud. As Raymond Dirks and Leonard Gross, authors of The Great Wall Street Scandal (McGraw Hill, 1974, p. 272), put it: ‘If routine auditing procedures cannot detect 64, 000 phony insurance policies, $25 million in counterfeit bonds, and $100 million in missing assets, what is the purpose of audits?’

Over 35 years later this question remains relevant and continues to be asked whenever serious fraud is discovered. It is of course correct that auditors instructed to focus specifically on fraud detection would have to adapt their work programmes and their skills to this rather different, and somewhat narrower, target. But that fact will not serve as a defence to a negligence action in circumstances when normal audit procedures should have detected material misstatements in the accounts as a consequence of a fraud that raided the corporate coffers.

Auditors are always perceived by outsiders as the primary independent safeguard against fraudulent abuse by management or employees, a role that saddles them with a tremendous burden of expectation. Moreover, they are a soft target because their professional indemnity insurers will invariably prefer to negotiate a settlement rather than risk the hazards of the litigation lottery - sometimes without due regard to merit.

Insurers’ statistics show that claims against auditors for ‘failure to detect defalcations’ exceed those arising from all other audit work - in terms of both incidence and monetary amount. It is therefore obvious that attempts, however reasonable they may seem, wholly to disclaim such a responsibility have little practical effect.

2.3 AUDITORS’ RESPONSIBILITY FOR FRAUD DETECTION

The principle here (supported by the Courts in past cases) is that the origins of auditing, as we now know it, are inseparably linked with the function of fraud detection. Although there would appear to be no positive prevention duties (it is hoped that the audit presence, per se, has that effect), the detection function has always, in the public mind, been associated with the audit. Although this detection function has gradually become subordinated to the principal aim of confirming (or otherwise) the truth and fairness of financial statements and their compliance with statutory requirements - hence endowing them with a degree of credibility they otherwise would lack - it is incorrect to deduce from this that the former role has been completely superseded by the latter: concern with the existence and consequences of fraud within the client organisation remains within the auditor’s sphere of responsibility in every practical sense.

It is a mistake to regard the two objectives in question (fraud detection and ‘true and fair’ reporting) as mutually exclusive; indeed, the chief virtue of an engagement letter is that it formulates a reliable and realistic synthesis between both of them. A well-drafted engagement letter would include a term to the effect that: ‘we shall endeavour to plan our audit so that we have a reasonable expectation of detecting material misstatements in the financial statements or accounting records resulting from irregularities or fraud’.

It is therefore imperative that, although not explicitly focusing on fraud detection, auditors maintain a sharp professional scepticism at all times and design procedures that will give them a reasonable opportunity to detect any material misstatements that may exist, regardless of how caused - including fraud.

It should of course be remembered that litigation always involves the question of burden of proof, including proof of loss and causation. In cases of negligence involving third parties, not only must financial loss be involved, but also it must be attributable to the negligence of the defendant accountant. In cases involving the claimant’s contributory negligence damages would be reduced accordingly. In other words, the Courts do not encourage third parties who have suffered loss to view auditors as convenient scapegoats, perhaps based on the presumption of insurance cover, even if there is a prima facie case of negligence. The further consideration of attributable loss must be proved to the Courts’ satisfaction.

Defendant auditors are understandably aggrieved when claims against them arise from issues that fall within the responsibility of others, such as directors of client companies. Yet the law is far from clear on the extent to which contributory negligence has relevance to cases brought in contract rather than tort, and the Courts will not necessarily take into account the negligence of directors in failing to impose effective internal controls when auditors are sued for failing to detect frauds by employees.

2.4 LIMITING LIABILITY

The law permits auditors to set a contractual limit (or ‘cap’) on their liability, based on the extent to which they have caused loss to the company. Such a cap must have regard to considerations of what is ‘just, fair and reasonable’ and must be approved by the company’s members. This statutory provision may be considered to be a step in the direction of proportional liability, rather than joint and several liability under which any culpable party may be targeted for recovery of the full losses suffered.

Auditors themselves could address this issue by adopting incorporation with limited liability, but this is hardly the whole answer. A proactive approach, that would pay long-term dividends, would be for auditors of public interest (and hence high-risk) entities, before accepting appointment or reappointment, to insist that the client’s directors be insured for at least as much cover as the directors would expect the auditor to carry.

2.5 PERSPECTIVES ON FRAUD - RESPECTIVE RESPONSIBILITIES OF MANAGEMENT AND AUDITORS

Attempts have been made over many years to clarify the respective responsibilities of management and auditors, including the requirement for financial reports to incorporate clear statements of such responsibilities. Since the outcome of so many cases rests on the question of how blame should be apportioned, it may be helpful to provide an objective view of the current perception of where responsibility lies:

• Management responsibility. The prevention of fraud, error and comparable irregularities lies firmly within the province of management supervision and other internal controls. Management cannot validly rely on the audit function as a substitute for internal controls, and to attempt this would be an unwarranted abrogation of one of management’s most important responsibilities.

• Management letters. Auditors, acting in an advisory capacity (a distinction that the engagement letter should make clear), may offer recommendations for the enhancement of management controls based on their and their staff’s observations in the course of an audit. This is usually provided in the management letter. It is obligatory to communicate such matters either in writing or at a meeting with the client, followed by a letter.

• Essential and non-essential matters. In making any such recommendations, auditors are strongly advised to distinguish (and to evidence such distinction in the audit files) between (i) those that they regard as essential from their point of view and (ii) those offered gratuitously under the previous point, which the client is at liberty to implement or not as the directors see fit. Once auditors are aware of weaknesses, however, they are expected to perform procedures that take those weaknesses into account. Simply reporting them to management cannot be regarded as the end of the story.

• Disregard by management. Recommendations regarded by the auditor as essential would relate to controls without which internally originated evidence would lack adequate support, such as evidence that goods purchased have been received before suppliers’ invoices are passed for payment. Such matters might, in the face of persistent disregard by management of their importance, result in a qualified audit report, especially if no other means are available to verify the authenticity and completeness of liabilities.

• Investigation by management. The occurrence of irregularities such as defalcations (and errors) represents a failure of internal control and, as such, its detection is again the responsibility of management. Management, being responsible for the establishment of controls in the first place, is logically responsible for the detection of lapses in control, investigating their causes (such as their inherent ineffectiveness or the failure of subordinates to apply them) and instituting improvements designed to ensure their non-recurrence.

• Effect on financial statements. The prime audit duty of reporting within the terms of the Companies Act cannot, however, be fulfilled without a proper consideration of the possible effect of the irregularities in question on the truth and fairness of the financial statements being audited. In this regard the responsibilities of auditors and management overlap.

• Measuring materiality. The irregularities in question may be either individually or cumulatively material in relation to the view presented by financial statements. For the purpose of determining whether this might be so, it is necessary for auditors to have a general materiality measure available. Without this it is not possible for audit work to be said to have been satisfactorily completed or, by the same token, a reliable opinion given.

• Satisfying the engagement letter. The auditor is expected to undertake to plan the audit so as to have a reasonable expectation of detecting material misstatements in the financial statements resulting from fraud. The use of the word ‘material’ creates a specific and complementary duty to consider how, in each circumstance, materiality should be assessed for the purposes of substantive testing, and reflected in ensuing audit procedures. The use of materiality criteria also protects the auditor from unreasonable claims based on non-discovery of minor defalcations below the auditor’s materiality threshold.

2.6 DISCLOSURE OF MANAGEMENT FRAUD

The Courts and other government regulators have made it clear that when auditors discover or suspect serious management fraud they should regard its disclosure as a duty to be exercised ‘in the public interest’, and that any such disclosure by auditors would, if made in good faith to the appropriate authority, entitle them to immunity from any subsequent action in respect of breach of duty of confidentiality or other legal obligation.

In this regard the auditing standard on ‘fraud and the auditor’ goes somewhat further than any earlier advice and deals specifically with the question of disclosure of fraud (actual or suspected) to third parties in the public interest, and the protection that the law would provide if such disclosure is properly made. It also gives guidance on the criteria to be used when considering whether disclosure is justified in the public interest, including:

• the extent to which the fraud is likely to result in material gain or loss for any person or to affect a large number of persons;

• the extent to which non-disclosure of the fraud may enable it to be repeated with impunity;

• the gravity of the matter;

• whether there is a general management ethos in the entity of flouting the law or regulations;

• the weight of evidence that a fraud has actually been committed.

The drastic step of reporting suspicions of management fraud to a third party regulator is by no means the only option available to auditors in circumstances where they believe that internally-sounded warnings would fall on deaf ears. A more effective instrument may in some cases lie in the auditors’ right to resign, since this will require them to issue a statement of resignation circumstances if they consider these should be brought to a shareholders’ or creditors’ attention. They also have the right to require the directors to convene an extraordinary general meeting of the company, for the sole purpose of airing the auditors’ concerns.

The auditors’ statement must be filed at Companies House and must be circulated to everyone entitled to receive copies of the company’s accounts. The auditors can require a similar statement to be circulated prior to the meeting at which their terms of office would have expired. Any director who fails to take all reasonable steps to ensure that the requisitioned extraordinary general meeting is convened is guilty of an offence.

Therefore, even in the case of a closely-held company, auditors can, if circumstances warrant it, deploy the armoury provided to them under company law to make life exceedingly difficult for dishonest senior executives. This is quite apart from the possibilities afforded by the professional duty to provide any nominated successor with all information considered relevant to their decision whether or not to act.

When solicitors realise that they have made a mistake that may give rise to loss or damage, they immediately disinstruct themselves and inform the client that a different firm may need to be engaged. Auditors are also in a potentially conflicting situation whenever they discover fraudulent conduct by an employee that may have been going on in earlier periods and which, had it been discovered earlier, might have saved the client company material sums and might also have materially affected the accounts for those periods.

When such distasteful realities are first brought to light, the client’s natural reaction is shock followed by a desire to know the full extent of the damage. And who better to undertake this exercise than the auditors? Yet, understandably, such an assignment is often the precursor to a serious claim against the auditors who, having now explained the fraud’s mechanics and its full dimensions, are less able to justify the failure of their own procedures to detect it in its infancy. Auditors seldom recover their fees for preparing ‘fraud reports’ in such circumstances!

2.7 MONITORING THE CLIENT’S REGULATORY CONDUCT

Accountants and auditors can easily become implicated if they fail to detect, consider or disclose the consequences for the client company’s accounts of the transgressions of the company itself via the acts or omissions of its principal officers.

The context in which the relevant auditing standard applies is the legal framework within which the entity conducts its business and where non-compliance may reasonably be expected to have a fundamental effect on the present or future operations of the entity. Under this standard it is necessary for the auditor to carry out the following:

• obtain a general understanding of the legal and regulatory framework applicable to the particular entity and industry;

• inspect correspondence with any relevant licensing or regulatory authorities;

• enquire specifically of the directors whether they are on notice of any such possible instances of non-compliance;

• obtain formal written confirmation from the directors that they have made the auditors aware of any possible non-compliance of which they themselves are aware, together with the actual or contingent consequences which may arise therefrom.

Controversially, the standard requires auditors to familiarise themselves with the legal framework in which the client entity operates and to examine correspondence between the entity and any relevant regulatory authorities. This onerous duty goes further than merely seeking representations from directors regarding known or suspected regulatory transgressions, and there is therefore the implication that auditors’ reporting responsibilities are widened by the standard.

The following extract is taken from a public address given by one leading underwriter on the subject of ‘Insurance of environmental risks’ :

When preparing Annual Reports accountants should obviously include all liabilities; yet horrendous potential exposure to pollution liabilities appears not to have been addressed in the past. Companies which appear solvent could very well be insolvent if such matters had been investigated. Any annual report which totally ignores the effect that pollution and its liabilities could have on the balance sheet could produce massive claims against accountants for professional negligence.

Of particular concern to auditors, including those acting for clients in a wider capacity, are, for example:

• pollution and environmental transgressions by the client;

• consumer protection legislation;

• maintenance of proper accounting records;

• VAT legislation breaches;

• PAYE and NI liability of subcontractors or freelance workers;

• health and safety at work;

• fire regulations;

• all client money regulations;

• capital adequacy regulations for financial services providers;

• vehicle licensing regulations;

• licensing laws for hotels, pubs and restaurants.

The cases outlined in the rest of this chapter carry their own, individual warning message, but they have a single common feature: in each case the auditors failed to meet the requisite standard of giving themselves a ‘reasonable opportunity’ to detect the fraud or other irregularity.

2.8 FRAUD BY EMPLOYEES

Despite the idea in the minds of many auditors that detection of employee fraud does not fall within their area of responsibility, claims under this heading are the highest in the auditing category. Furthermore, since these claims are brought in contract the claimant has no difficulty in establishing legal proximity.

The number of fraudulent gambits in this claims category that culprits exploit is too numerous to describe here, but based on the authors’ own case files as independent expert witnesses, they can typically include such things as the following:

• The clerk who cashed his own cheques with his employer but did not bank them, covering the shortfall by ‘teeming and lading’ remittances from debtors.

• The misappropriation of funds by

• theft of cash sales; or

• inserting dummy names on payrolls.

• The requesting of signatures from directors on blank cheques claiming that they are intended for HM Revenue & Customs (HMRC) for PAYE and/or VAT, stating that ‘I have not worked out the amounts yet!’.

(Note that throughout this book, the term HMRC is used as a general term to cover all references to the tax authorities, both before and after HM Customs and Excise were merged with HM Inland Revenue in April 2005.)

• The company secretary who, after being made a cheque signatory, paid his personal bills with company cheques and entered the payments against the directors’ loan accounts. They all shared the same creditors, such as Amex, Visa and Telecom, not to mention the same wine merchant, travel agent and petrol filling station - thus by spreading his own payments evenly between four directors’ loan accounts, the chances of detection were much reduced.

• The charity treasurer who controlled all accounting functions ‘to economise on payroll costs’, but more than made up for it by creating fictitious petty cash expenses, employing nonexistent casual staff, emptying most collection boxes before their official unsealing, and selling programme advertising space and pocketing most of the proceeds, recording the loss as ‘discount’.

• The accounts clerk and her husband who were totally trusted by the directors and relied upon by the auditors for producing the accounts. The auditor issued a warning letter to the directors regarding excessive dependence on the clerk, but no paid cheques were examined in the course of successive audits. The clerk perpetrated a sustained fraud over five years by using company funds to meet her personal debts.

Where were the auditors? What did they do - or not do? Such questions always arise following discovery of fraud. It is therefore essential that engagement terms are set out clearly and agreed in advance. There is never a need for auditors to accept a general responsibility for fraud detection. If a fraud is so material, however, that its non-discovery affects the truth and fairness of the published accounts it would be difficult for the auditors to deny any responsibility.

A. Failure to carry out basic procedures

There is a tendency for auditors to reach their conclusions chiefly by reference to analytical procedures and directors’ representations, and by reviewing accounts from a risk-related standpoint. Yet, as the cases described below demonstrate, certain basic procedures remain indispensable.

Case A.1

The audit client was a subsidiary of a large UK plc conglomerate producing components for the English East Midlands motor manufacturing industry. Despite having a turnover in excess of £45 million the audit of the subsidiary was left to a small team of six.

The national audit firm adopted a ‘high level’ audit approach that relied almost exclusively on IT and systems reviews of the client’s accounting processes. No detailed examination of the underlying records took place. Although continuing to rely on the results of the systems reviews in the second and subsequent years of their audit, the auditors failed to update these and consequently relied on controls that were in fact no longer in place.

Over a period of at least five years Mrs Beatrice Lovewell, the company’s financial director, systematically filled key positions in the accounts department with members of her own family or her in-laws, and managed to defraud the company of at least £2.4 million, probably a good deal more.

Her methods, initially carefully concealed but increasingly brazen as the uselessness of the audit became apparent, included:

• paying herself and/or her creditors using company cheques and entering false payees on the counterfoils, and then making the relevant ‘corrections’ by highly creative use of the company’s journal;

• using the company’s ‘private’ cash book to clear her substantial personal expenses incurred with the use of a company Amex card, including first class transatlantic flights, Fifth Avenue shopping and ‘weekend break’ hotel bills;

• misappropriating large amounts of cash sales from the trade counter and then using the journal to ‘rectify’ matters, usually by debiting ‘discounts allowed’;

• making unauthorised ‘loans’ to herself and other members of her accounts department ‘family’, which were reversed by journal before the year-end and re-reversed shortly thereafter;

• paying bogus wages and crudely amending the pink copies of the BACS sheets with white-out fluid and a typewriter.

The auditors’ ability to defend themselves against allegations of negligence was somewhat compromised by the fact that most of Mrs Lovewell’s ‘weekend breaks’ were spent amorously with the audit manager and, bizarrely, the case files include certain lascivious exchanges, sent by postcard, some of which were tucked into the back of the cash book - presumably because that was considered the last place the audit team would look!

Had the auditors departed even briefly from their policy of studiously avoiding any contact with company records, and merely opened the so-called ‘private cash book’ at any page, they would have detected the fraud immediately - so blatant was the evidence. The private cash book, originally designed solely to record directors’ emoluments, had no fewer than 58 separate columns, most of them including fraudulent entries of one variety or another.

Mrs Lovewell even cocked a deliberately supercilious snook at the auditors by passing a single £75 million journal entry (crediting sales, debiting discounts) and triumphantly reversed it after the audit!

The matter was eventually settled through mediation at an undisclosed sum, subject to a confidentiality agreement.

Lessons to be noted

• In this case the client managed to negotiate a spectacularly low fee for the audit of its Midlands subsidiary, and budgetary constraints dictated the audit approach from the outset. Auditors should not allow such constraints to restrict the scope of necessary audit work. Failing to perform an effective audit cannot be justified on the basis that the fee budget does not allow for it. This has been a particular problem with larger firms, who may negotiate low fees for subsidiary audits in anticipation of covering any losses with more lucrative charges for other services.

• In this instance the audit firm was less concerned with the results and financial position of the subsidiary than might otherwise have been the case, because the subsidiary, in accounting terms, fell below the level of what might legitimately be regarded as ‘group materiality’. The listed parent company was a conglomerate with holdings in a wide range of entities in several related industries, from IT to utilities. It should, however, be remembered that the auditors of every company, irrespective of its size in relation to the group, have an obligation under company law to express an opinion on its financial statements, and this work must meet exactly the same auditing standards as apply elsewhere.

• When relying on a review of IT or other internal control system with a view to limiting the scope of substantive testing, the controls must be checked for each year of the engagement to ensure that they are still applicable and can be relied upon. The original audit file conclusion, on which subsequent audits were based, was that the audit risk was ‘low’ and client internal controls were ‘highly effective’ !

• Patently, the company’s management disregarded their own responsibilities to institute a modicum of internal control by ensuring that reciprocal accounting functions did not overlap. For example, employees who open the post should not be responsible for banking cash received; nor should anyone responsible for keeping the cash book up to date also participate in recording receipts and payments in sales and purchases ledgers.

• In this instance, however, Mrs Lovewell had so successfully managed to ingratiate herself with the directors (one of whom was a main board director) that the integrity of her work was never subject to query, still less independent review. She had filled all the key positions in the accounts department with friends and relations, including her husband, none of which was hidden. Even if senior management remains impervious to the obvious risks of such a state of affairs, the auditors are bound to view the set up with far greater circumspection and enhance their testing accordingly.

Case A.2

A further example of the necessity for the most basic procedures not to be overlooked concerns a high street general insurance broker whose dishonest bookkeeper was caught out when a newly installed computer system detected that she had failed to transmit certain premiums received from clients to the relevant insurance companies, leaving the clients uninsured.

Further investigation uncovered a host of irregularities and misappropriations that had been going on for years. The simplest yet most pervasive of these was perpetrated in the following manner:

1. The bookkeeper accurately recorded premiums receipts from clients in the manual cash book.

2. The manual cash book was then cast (i.e. added up) and an understated daily total was recorded, and this sum was then banked.

3. The bookkeeper relied on ‘pipeline’ delays between receipt of premiums and their onward transmission to insurers to facilitate such teeming and lading as was necessary for her purposes.

Lesson to be noted

• The auditors performed every test their auditing system prescribed, except checking the casts in the manual cash book. If they had done so, the fraud would have been discovered at the outset. Even the most basic checks can at times provide evidence of wrongdoing.

Case A.3

The claimant company was a distributor of sports goods based in Leeds. Pepper & Smart had acted as company auditors since 1992. The December 2005 accounts, which showed a trading loss, were both prepared and audited by Pepper & Smart, whose report was qualified due to doubts regarding the company’s ability to continue to trade as a going concern and its dependence on the company’s directors for financial support.

Although the directors were aware of the company’s financial problems, they were of the opinion that these were temporary and that a return to normal levels of profitability would follow. Ten months later, however, despite having achieved turnover and gross margins comparable with the previous period, the directors were forced to cease trading through pressure from the bank.

Investigations showed that substantial stocks of sports equipment had been systematically stolen from the company’s warehouse by two trusted employees working in collusion over an 18-month period. For the purpose of preparing the 2005 accounts the auditors had relied on the company’s book stock records. Although there had been a physical stocktaking at the year-end, which the auditors did not attend, the inventories listed merely corroborated the book stock records.

The directors’ investigations showed that both the book stocks and physical inventory lists had been deliberately inflated by the employees concerned in order to mask their thefts. Had the 2005 accounts reflected the losses due to theft, the result would have been a loss of approximately £160,000.