The curious incident of the regulator in the night time

In Blog by Ian Fraser4 Comments

9 February 2009

“The curious incident of the dog in the night time” is a phrase from the Sherlock Holmes detective story Silver Blaze. The dog’s failure to woof wasn’t seen as a clue by many. But it was by Holmes. He realised that the dog’s very silence spoke volumes. In this instance, he deduced it meant the criminal must have been known to the dog — indeed he turned out to be its master — and that the crime was therefore an Inside Job.

There are strong parallels with the two UK banks — HBOS and RBS — and their relationships with the FSA and with their institutional investors.

It strikes me as strange that the dogs who one would be expect to be barking the loudest right now — institutional shareholders, who have lost billions, and the Listing Authority (part of the Financial Services Authority), which is supposed to keep tabs on the veracity of the information in the prospectuses of listed companies — are so eerily silent.

Instead, we are having to listen the baying of a media pack incensed about bankers’ bonuses.

However, if there was a “crime” committed by either of these two banks it doesn’t relate to the payment of bonuses. It is more likely to be that on 30 April 2008 (in the case of the Royal Bank of Scotland Group PLC) and 19 June 2008 (in the case of HBOS PLC), the banks produced rights issue prospectuses which suggest that their boards of directors were either:-

(1)  Incompetent (in that they did not know what was going in inside their banks),

or

(2) Fraudulent (in that they knew, but chose to hide the information from shareholders).

Whenever a listed company seeks to raise capital by selling new shares in a rights issue, it must put together a legally-binding document known as a prospectus. For an institution the size of RBS or HBOS, these documents cost millions of pounds to produce and can stretch to several hundred pages. The legal requirement is to provide investors an accurate picture of the company’s likely future strengths and weaknesses (and not to gloss over the truth).

As a result of the effort and care that normally goes into the compilation of these documents, including lawyers grilling the board on the veracity of every claim, investors generally assume they can can be relied upon as dependable guides when deciding whether or not to subscribe to new issues.

The heart of any prospectus is the so-called “working capital” statement. In their prospectuses, each of the two Scottish banks made such statements — which, elsewhere in the documents, were said to be “unqualified by risk factors”. In the working capital statements, the directors of RBS and HBOS informed their investors who they were seeking to tap for £12bn and £4bn respectively that, subject to their rights issues being successful, they would have sufficient working capital to see them through the next 12 months.

Both the banks used ‘Magic Circle’ law firms as advisers (Linklaters in the case of RBS and Allen & Overy in the case of HBOS) when putting together these working capital statements, and City practice is to ensure the statements are 100% reliable by “stress-testing” under a range of scenarios including one sometimes known as financial “Armageddon”.

However, within a few months of making these unqualified working capital statements, after the bankruptcy of Lehman Brothers created a hiatus in the wholesale capital markets, both the Scottish banks were bust and needed billions of fresh capital from the UK taxpayer, as well as an even greater quantity of state-subsidized liquidity. Both banks remain on state-funded life support and both would expire immediately if this was switched off.

RBS published its rights issue prospectus on April 30th, 2008, raising £12bn from investors on June 9th. Yet by October 6th (four months later), the bank was in need of a further £20bn capital injection from the government. Sir John Gieve, deputy governor of the Bank of England, has indicated that by October 10th, even though shareholders had pumped in £12bn in June 2008, RBS was bankrupt.

In HBOS’s case, the £4bn rights issue was announced on April 29th and the prospectus published on June 19th. The process had flopped by July 21st — leaving underwriters Morgan Stanley and Dresdner Kleinwort obliged to stump up the cash after genuine investors ran for the hills. The investors were right to steer clear. By September 18th (less than three months later and despite the underwriters having injected £4bn of capital after the rights issue flopped) HBOS was bust and needed a government-brokered rescue takeover by Lloyds TSB. Less than four weeks later, it required an £11.5bn capital injection from the government.

So what should one to make of the directors’ assurances in their prospectuses that the banks would have sufficient working capital to see themselves through the next 12 months (conditional on the rights issue cash materialising)? As one of my lawyer friends puts it, they are on a bit of a sticky wicket here, as both their working capital statements have been “unequivocally disproved by the banks’ own subsequent actions.”

More importantly, what is the role of the two dogs who did not bark in all this? The institutional investors in both RBS and HBOS and the U.K. Listing Authority ought, by rights, to be barking like crazy by now. Having lost billions, one also might have thought institutional investors would be emitting more than the occasional whimper and doing a bit more than feebly claiming that they once sought to oust Sir Fred Goodwin and Sir Tom McKillop from their positions at RBS. Their silence is all the more deafening since, if the banks’ prospectuses did mis-state or omit the facts, investors who took up their shares have a statutory right to claim full compensation for losses accrued.

Did the U.K. Listing Authority and the FSA perhaps know the bank’s boards too well? (It is notable that Sir James Crosby, who resigned from the board of HBOS in July 2006 and is presumably still close to some of his former colleagues on the failed bank’s board, continues to serve as deputy chairman of the FSA, of which the Listing Authority forms part).

Tomorrow, the “fallible four” — Sir Tom McKillop, Sir Fred Goodwin, Lord Stevenson and Andy Hornby — appear before the Treasury Select Committee. I suspect that we’re going to witness a fair amount of grand-standing from the MPs on the committee. As on previous occasions I suspect these bankers are going to blame “unprecedented market turmoil” / “market disruption” rather than acknowledge any culpability for their banks’ collapses.

But isn’t this the equivalent of a sea captain blaming “unexpectedly bad weather” after his ship hits the rocks?

(minor corrections May 30th, 2013)

Comments

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  3. You’re right. It is astonishing that neither the Listings Authority (now part of the FSA) nor institutional investors seem to have batted an eyelid, despite the manifest deceitfulness of the banks’ board in recent months. Your postulation hat the regulator and institutional investors mightin some way be ‘accomplices’ to the ‘crimes’ of McKillop, Goodwin, Stevenson, Hornby etc. is highly credible. A radical shake-up of both corporate goverance and regulaton is imperative.

  4. Pingback: Ian Fraser - Business and Financial Journalist based in the United Kingdom Ian Fraser » Blog Archive » Why Foulkes’ questions about culture of fear at RBS must be answered

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