I have recently been subjected to a thoroughly unpleasant experience with an accountant.
I needed my limited company accounts calculated and submitted early for the purposes of my partner's immigration submission, so I spoke to an accountant that was recommended to me by a friend.
I am the sole director and employee and it makes under £100,000 p/a. No bookkeeping had been done but the accounts weren’t desperately complicated (12 invoices, some cash withdrawals and some receipts for taxis and office rent).
I stupidly didn’t agree a fee before the process began, however half way through the process (initial accounts took 5 solid days apparently) I received a quote of £1000 for bookkeeping, submission of abbreviated accounts and apparently for ‘advice’ – our only communication/advice had been in regards to documents needed to complete the accounts. This was far higher than I had paid for this in the past, but due to the last minute nature I reluctantly agreed.
Anyway we got to the deadline and the accountant asked for my ‘company login and password’ for HMRC in order to file the CT 600. I said I didn’t have any login as my previous accountant had done it for me and that it would take 10 days to get these from HMRC. He said that without these he couldn’t file. He was very apologetic so suggested sending over draft accounts and a paragraph explaining the situation which he forwarded. Sure enough he forwarded them I sent them off minutes before the last post. I returned home to find another email saying he had made a mistake had left out a section on the draft accounts. It was too late to fix.
Unfortunately the visa application was rejected due to no completed and submitted accounts. My partner lost her job as a result.
At this point the accountant sent over a pair of large invoices amounting to £1400. Most of it was for (in order of cost) bookkeeping, ‘advice’, preparing draft accounts, filing abbreviated accounts, requesting the company login and password to HMRC and the writing of the paragraph to immigration. At no point in the process had he informed me that any emails correspondence would incur an additional cost, nor for the letter and certainly not for the draft accounts (shouldn’t these be done before I submit accounts anyway for me to check) most of these were my replies to queries related to the odd receipt and dividends etc.
I was shocked by these charges, especially as they seemed to come under the scope of work of completing and submitting the accounts. I went about querying them.
Meanwhile I managed to negotiate an appeal with immigration and they set a new deadline. So I ordered a company login and password, as well as registering for filing corporation tax online, and received these in good time.
I agreed with the accountant that if they filed in time for the appeal that I would indeed pay the large fees.
When I gave the login and password to the accountant he said that no, in fact he needed to be authorised as an agent to submit my accounts. This was a total about turn, none of this had been mentioned to me and there was no longer enough time to do this before the deadline. I suspect they hadn’t known I needed to authorise them and only realised too late.
So the appeal failed once again.
At this point the accountant started chasing me for payment of the £1400. I said that they hadn’t submitted the accounts in time for 2 deadlines as had been agreed. I told my friend about this and it turns out the said accountant had just made a huge mess of their accounts and submitted them with multiple errors on – as a result HMRC were now investigating.
None the less my actual filing date was approaching and after many heated emails in which the accountant refused to accept any responsibility and refused to return my receipts and invoices. They knew that the visa was still in the balance and that my accounts were almost due so had all the power. I was forced to pay – on the condition that the account, receipts and books were returned to me.
I received a copy of the draft accounts, then 2 days later received another copy saying there were some mistakes on them that had now been rectified – and that I should check the figures in case of further mistakes! He also said I’d need to get someone to resubmit my abbreviated accounts etc (despite having paid him to do this) due to the different ammounts.
However my receipts were not included and no ledger was included for the bookkeeping. Upon contact he claims he sent my receipts months ago (despite agreeing a couple of days before that he would include them) and that the bookkeeping ledger was for his calculations only. He has flat refused to acknowledge that he has my receipts and will not send me the books saying he has no obligation to. He has now also said that any further communication on the matter will incur further charges!
I have now set about employing another accountant, but without the books and receipts I cannot check/redo the accounts.
I am thinking about legal action because I have paid £1400 for accounts that were repeatedly filled with errors, for bookkeeping that I can’t see, for wrongly submitted abbreviated account and for advice that I didn’t agree to pay for before it was given/asked. Unfortunately it turns out he is not registered with a UK regulatory body, so I’m not sure where to go from here.
Do I have any recourse? Do I have a case?
Sorry for the longwinded question, just didn’t want to miss anything out.
Replies (72)
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How could no bookkeeping have been done for a year with turnover of £100,000? How did you submit VAT returns?
Regarding the fee and scope of work - what did it say in your Letter of Engagement when you appointed the firm as your accountants?
Lien
it is a criminal offence under the Companies Act for anyone to hold a lien or similar on the statutory records (which includes the books and accounting records) of a limited company
Really? Are you sure about that!
David
No professional body
There won't be any special rules that can be applied to accountants not registered with a professional body.
Imagine you had a rogue builder make a mess of your house. Whatever course of action you might take would equally apply to the dispute with your accountant.
@mrme89
Exactly. The op makes no mention of the accountant belonging to any particular body
.
Exactly. The op makes no mention of the accountant belonging to any particular body
"Unfortunately it turns out he is not registered with a UK regulatory body"
Bookkeeping
That's an interesting one.
If the accountant was appointed to, amongst other things, prepare the company's bookkeeping for the year you ought to have something to show for it. You should be provided with the records because they belong to you, they support the year-end accounts that have been prepared and they would include balances to be carried forward to the next year.
However, if the accountant was appointed to prepare your accounts and he charged extra because of deficiencies in your bookkeeping or an absence of complete records then those workings belong to him.
That isn't bookkeeping
He said:
“The bookkeeping records that I produced from your Data were purely for my own purposes in order to produce the Accounts requested; I do not disclose such schedules to clients.”
That's working papers that form part of the accounts preparation process.
No extra should have been made for these!
Bookkeeping, as referred to above, means keeping the books of the business. These should be available to you, especially if you have paid the accountant to do it!!
To me this sounds like he doesn't know what bookkeeping is and that is very, very worrying!
Companies Act 2006
It sounds like a subtle difference. No bookkeeping had been done (as I said there weren't too many receipts and just 11 invoices), so that was what was agreed to first. Bookkeeping had its own invoice and it makes up almost half of the overall cost. So rather than being an incidental I consider it the bulk of the job (especially as the accounts were never actually filed). Obviously it was done so that he could then prepare the accounts, hence why it seems a grey area.
He said:
“The bookkeeping records that I produced from your Data were purely for my own purposes in order to produce the Accounts requested; I do not disclose such schedules to clients.”
give the company/directors legal ownership of any accounting papers necessary for them to carry out their fiduciary duties, therefore any working papers that are key links between basic records and final accounts belong to the company, not the accountant, and in law the accountant has no right to retain these (even if there are unpaid fees). To do so means they are preventing the directors from carrying out their statutory duties which is a criminal offence.
Therefore, the statement above is meaningless in law and the accountant cannot use it as an excuse to provide the information you need if the records produced are intrinsic to the books and accounts of the company.
In practice what you do is not so clear and could be costly!
"Can I take action against my
"Can I take action against my accountant for incompetence" was the byline of your question.
You need to take legal advice from a qualified solicitor in practice as without access to all the information an accountants' website cannot properly advise you. There are too ramifications wrapped up in your question including possible consequential losses
This is from ACCA guidance ...
Accounting records of companies
In DTC (CNC) Ltd v Gary Sargeant & Co [1996] 2 All ER 369, it
was held that a lien cannot be asserted over accounting records
within section 221 of the Companies Act 1985 (now section 386
of the Companies Act 2006). This is because section 388(1)
of the 2006 Act (section 222(1) of the 1985 Act) requires the
accounting records to be kept at the company’s registered office,
or at such other place as the directors think fit, and must at
all times be open to inspection by the company’s officers. Lord
Justice Lawton’s general statement as to the accountant’s right of
lien, quoted above, must be read subject to this qualification.
It should be appreciated that ‘accounting records’ within the
meaning of section 386 cover a wide range of documents. They
are not limited to double entry ledgers and journals. In the DTC
case, ‘accounting records’ were held to include sales invoices,
purchase invoices, cheque books, paying-in books, and bank
statements. It seems to have been assumed that all documents
that are accounting records fall within sections 386 and 388. If
this is so, the accountant’s lien has little practical value in relation
to corporate clients.
The full document is here
http://www.accaglobal.com/content/dam/acca/global/PDF-members/2012/3435213.pdf
Are there more recent cases that change this view then David?
Criminal ?
Accounting records of companies
In DTC (CNC) Ltd v Gary Sargeant & Co [1996] 2 All ER 369, it
was held that a lien cannot be asserted over accounting records
within section 221 of the Companies Act 1985 (now section 386
of the Companies Act 2006). This is because section 388(1)
of the 2006 Act (section 222(1) of the 1985 Act) requires the
accounting records to be kept at the company’s registered office,
or at such other place as the directors think fit, and must at
all times be open to inspection by the company’s officers. Lord
Justice Lawton’s general statement as to the accountant’s right of
lien, quoted above, must be read subject to this qualification.
It should be appreciated that ‘accounting records’ within the
meaning of section 386 cover a wide range of documents. They
are not limited to double entry ledgers and journals. In the DTC
case, ‘accounting records’ were held to include sales invoices,
purchase invoices, cheque books, paying-in books, and bank
statements. It seems to have been assumed that all documents
that are accounting records fall within sections 386 and 388. If
this is so, the accountant’s lien has little practical value in relation
to corporate clients.
The full document is here
http://www.accaglobal.com/content/dam/acca/global/PDF-members/2012/3435213.pdf
Are there more recent cases that change this view then David?
I couldn't find any reference to criminal offence in there. This seems to be a civil case.
guidance
You may say you believe in all their actions, I couldn't possibly comment I believe they also have a of code of ethics.
Just out of interest....
You mention in the context of a CT600 'my previous accountant had done it for me'. Why didn't you use them for this?
Legal Action
To suceed you would have to prove that you have suffered a loss because of accountants actions.
The accountant may well defend the action and say that you did not provide correct information.
It is likely to be a very expensive operation and from the information that you have given with limited chance of success.Apart from anything else company directors have a duty to maintain records that can provide accurate information at all times not just the end of the year.
You say that you made a £100K even if you mean that your turnover as opposed to profit was a £100k you should have been vat registered and have records to support the vat claims.
This is meant as a reality check and implies no slur on you in fact there are certain aspects of your posting that makes me certain that you have met a "cowboy". The problem is proving it.
IMHO
Suing 'one man band' cowboy outfits, whether they are accountants, solicitors, builders, car repairers, just ain't worth it. There will be legal fees, court fees up front, you may win, you may lose. If you win, you then have to actually recover the money, this is usually another mountain to climb. No indemnity insurance, declared bankrupt, disappeared etc etc. The process will take longer than you would believe, cause you all sorts of worry and stress and more importantly detract you from running what sounds like a very profitable business.
In the unlikely event that you get your money back, legal fees paid and £1,000 on top it will still be the hardest 'fee' that you will have ever earned!
With regards to the loss of your 'records', this does not sound to be too great an issue. You no doubt have copy sales invoices and have or can get bank & credit card statements to work out most costs and expenses and a bit of finger in the air for taxis and any other cash expenses (diaries, memory and pattern of working helps here).
Move on (and good luck with your next accountant!).
@:OGA
presumably you can exercise a lien if your address happens to be the ro given the circumstances that you describe. That is the advice given by the ICAEW tech bods re statutory books
Criminal?
What perturbed me was the assertion that attempting to / purporting to exercise a lien would be a CRIMINAL OFFENCE.
It is one thing to say that a lien would be ineffective / unlawful - quite another to suggest that it would be a criminal offence!
The difference is that if you do something which is unlawful a court can order you to stop doing it and (in this case) to hand over the records.
If, on the other hand, you commit a criminal offence you are liable to prosecution with the risk of a fine and (in many cases) imprisonment.
I do not believe the ACCA (or any other authority) suggest that purporting to exercise a lien on company records would be a criminal offence.
David
A Touch of Larceny?
What perturbed me was the assertion that attempting to / purporting to exercise a lien would be a CRIMINAL OFFENCE.
David
My apologies David; as OGA mentioned, holding a lien on the company's accounting records would cause the director to commit the criminal offence (under s387 CA 2006). But, as you rightly point out, no direct criminal offence (at least under the CA) by the accountant himself.
I was trying to give the OP something a bit more practical to arm his (contemplated) solicitor with - the damages (to his third party partner) would seem a little remote for the forseeability test; as others have pointed out a tort action for negligence would seem unlikely to bear much fruit.
In any event, I've re-read the posts and see that there's no unpaid bill, which I guess means that lien would not be the applicable action anyway. Trespass to goods, perhaps, on a civil basis? Or I wonder whether a solicitor might view this as an encroachment into the Theft Act or some other such fraudulent behaviour by the accountant retaining possession of the company's accounting records, in spite of having been fully paid? Might I again enquire of the OP just how the narrative on his invoice describes the "bookkeeping" work.
@Basil
I think you may have been watching a little too much television - you know the stuff where the Districk Attorney & the Feds bring the perp in front to the judge who keeps banging his little wooden hammer?
On this side of the Pond it would be thought more than a little unseemly to behave in that manner!
We were discussing an accountant exercising (or purporting to exercise) a lien over company accounting records. I really cannot see that getting an accountant into the dock facing the wigs & gowns in the Crown Court.
But I like your style . . .
David
@I'msorry . . .
I would suggest that the OP steers well clear of any suggestion that the accountant (former accountant?) has committed any criminal offence. To threaten the accountant with criminal action would be pure bu****it and is an obvious bluff which might be called!
Do you really think the boys in blue would come tearing round to 'sort out' the accountant? Don't hold your breath . . .
David
All Huff and no Puff?
I would suggest that the OP steers well clear of any suggestion that the accountant (former accountant?) has committed any criminal offence. To threaten the accountant with criminal action would be pure bu****it and is an obvious bluff which might be called!
Do you really think the boys in blue would come tearing round to 'sort out' the accountant? Don't hold your breath . . .
David
No more than I can see them come tearing round to 'sort out' the OP for his s387 criminal offence :)
I hope the comments above have been of some assistance.
With regards to taking acting for incompetence I would say have a look at http://en.wikipedia.org/wiki/Professional_negligence_in_English_law and contact a solicitor (your company's insurance may offer free legal advice), but as those before me have said this can be costly and ultimately result in nothing.
In the future I suggest you:
don't go with a friend of a friend for accountancycheck your accountant is registered and has the right qualificationsmake sure you have a written contract or letter of engagement setting out what is to be donedon't give accountants original records - copy or scan receipts and invoices (same goes for solicitors, etc.)keep your books up to date - if you only have 12 invoices and a few receipts could you not do this yourself rather than get your accountant to do it?
In hindsight it may have been better to seek legal advice before paying the £1,400.
I would agree with David's comments above. The relationship between the company and the accountants is that of a principal and agent. The offence is purely a civil one if the agent hasn't performed. The agent cannot be booked under any of the provisions of the company laws because the directors cannot outsource their obligations under the CA/06 - as the directors remain liable always (the line is the company and/or every officer who is in default). Whether or not the agent has performed would depend on what terms the accountant was engaged - regardless of whether there existed a written or oral contract.
Professional duty of care, negligence etc applies only in the case of qualified accountants by virtue of the code of conduct enforced by the professional body. I would compare this case to someone taking his car to a mechanic who sits by the roadside and fails to perform- what claims you have?
Spot the Analogy
I would agree with David's comments above. The relationship between the company and the accountants is that of a principal and agent. The offence is purely a civil one if the agent hasn't performed.
It's not so much the matter of non-performance under scrutiny, but rather the former accountant's actions of refusing to hand over what we think might constitute the company's "accounting records".
Professional duty of care, negligence etc applies only in the case of qualified accountants by virtue of the code of conduct enforced by the professional body.
I would have thought anyone holding themselves out as an expert, whether a hairdresser or an accountant, has a professional duty of care and may be liable under the tort of negligence.
I would compare this case to someone taking his car to a mechanic who sits by the roadside and fails to perform- what claims you have?
That sounds just like the AA. Join the RAC instead!
You miss the point ...
I would agree with David's comments above. The relationship between the company and the accountants is that of a principal and agent. The offence is purely a civil one if the agent hasn't performed. The agent cannot be booked under any of the provisions of the company laws because the directors cannot outsource their obligations under the CA/06 - as the directors remain liable always (the line is the company and/or every officer who is in default). Whether or not the agent has performed would depend on what terms the accountant was engaged - regardless of whether there existed a written or oral contract.
Professional duty of care, negligence etc applies only in the case of qualified accountants by virtue of the code of conduct enforced by the professional body. I would compare this case to someone taking his car to a mechanic who sits by the roadside and fails to perform- what claims you have?
... the criminality is not the creation of misleading or false accounts, no one is arguing they are not the responsibility of the directors who cannot outsource their obligations - the criminality is in preventing the directors carrying out those obligations by withholding essential information from them. So yes, in my view the agent is in breach of CA2006, and therefore by breaching a law is committing a criminal offence, albeit one where there is zero likelihood of a conviction.
Some Outside the Box Thinking...
Staying with the theme of criminal offences, something the OP mentioned in his original post suggests that his (former) accountant isn't registered for money laundering purposes (specifically, that accountant was unable to file the first accounts with HMRC because he didn't have the client company's online log in details, which were lodged with a previous accountant. Now, were he a bona fide registered with HMRC agent, the former accountant could have filed via his own practice's log in codes - all he would have needed would be his client company's UTR).
We're also told that the former accountant was a friend of a friend. A moonlighter, perhaps? Someone with no MLR registration or supervision? Now THAT would be a criminal offence, and a very handy stick to beat him with for (a) the company books; and (b) a sizeable refund. Always assuming my suspicions are well founded, what David might be the potential outcome for an unsupervised accountant? Or have I too been watchin' too much Perry Mason?
GBH?
a very handy stick to beat him with
Now that is a criminal offence. Don't get caught.
Duty of care v criminal conduct
I am an accountant not a lawyer but my understanding is that a person who describes himself as an accountant & agrees to do accountancy work in return for a fee has a duty of care towards the customer / client as a consequence of the (written or unwritten) contract between them.
So I would say that the OP has the option of suing his (former) accountant for negligence and / or breach of contract.
I do not think the right to sue depends upon whether the accountant is regulated or is a member of a professional body.
Whether suing would be advisable, cost effective, etc is a different issue!
If the accountant is a member of a professional body then the customer / client has the additional option of making a complaint to that body.
It may be the case that the (former) accountant has committed some criminal offence - for example by practising without being registered with any supervisory or professional body under MLR 2007. However it seems to me that that is not directly relevant to the issue of whether the accountant has discharged his contractual responsibilities to the customer / client. I would myself be very cautious about raising this issue with the accountant.
David
First up, I don't support these types of unprofessional elements being part of the profession. However, my take on the issue at hand is as follows:
1. Officer who is in default under CA/06 doesn't include his agents/associates
2. I'm not too sure how holding on to the receipts etc proves a criminal intent. The agent is holding on to something the directors have given him. He hasn't illegally taken possession of anything. All that he is doing is refusing to return it. How that's a criminal offence is beyond me - I'm not a lawyer though??
MLR etc may apply but the key issue is whether the agent has committed a criminal offence by holding on to the receipts etc. If he has, then the police should be involved, surely?
In the same way ...
2. I'm not too sure how holding on to the receipts etc proves a criminal intent. The agent is holding on to something the directors have given him. He hasn't illegally taken possession of anything. All that he is doing is refusing to return it. How that's a criminal offence is beyond me - I'm not a lawyer though??
... flashing your lights to warn oncoming drivers about a speed trap ahead of them is a criminal offence.
If he wasn't registered with an accountancy body then there is no recourse for complaining to anybody. Did he hold himself out at being qualified with any accountancy body, as practicing with no license would be an issue. Did you sign an engagement letter which detailed any lien of information?
I think Small Claims court is your best route, anything else is likely to be very expensive. In that you can claim for the return of all records.
He will be asked to provide any evidence
However in the meantime, copies of bank statements , invoices, etc will reconstruct your accounts.
I am naive regarding visa applications
The procedure seems rather tight on time scales.
I am surprised that draft accounts were admissible for visa purposes in the first place. What was missing from the accounts to have the accounts rejected, and why is the CT600 submission critical to the visa application, especially when he was trying to submit the tax before the accounts had been finalised.
I am curious how it works as the sequence of events doesn't seem logical.
May be I'm old fashioned, ...
... or too simplistic, but as far as I am concerned if it breaks the law (i.e. a national statute enacted by parliament) it is criminal, if not (eg breach of contract) it is civil.
But as has been said by those worthier than I, I am not a lawyer, I am an accountant - but if you were willing to pay a lawyer enough to explain it they would probably enlighten you.
However, a cursury research shows the SFO handbook agrees with me and the maximium penalties are 2 years imprisonment and/or a fine - sounds like criminal to me! In the case in hand, taking the one-sided view given as true, the directors have reasonable excuse and the criminality passes to the accountant for obstructing the law.
Other Companies Act Offences
Accounting Records
In most cases where the conduct of the company's affairs is fraudulent, it is likely that in order to conceal the fraud the company's records would have been falsified or there had been a failure to keep records which accurately display the state of the company. For that reason s386 CA 06 requires that all companies should keep records which:
• Disclose with reasonable accuracy, at any time, the financial position of the company at that time, and;
• Enable the directors to ensure any balance sheet or profit or loss account complies with the CA 06 requirements.
In particular the records should contain details of the daily income and
expenditure of the company; its assets and liabilities; and where the company deals in goods, the state of the stock of the company: s386(3) and (4) CA 06.
If a company fails to comply with the requirements, any officer of the company in default is guilty of an offence unless he can show that he acted honestly or the default was excusable: s387 CA 06. The maximum penalty on indictment for such an offence is two years imprisonment and/or a fine, and 6 months imprisonment and/or fine up to £5000 in the Magistrates' Court.
Civil or Criminal
... or too simplistic, but as far as I am concerned if it breaks the law (i.e. a national statute enacted by parliament) it is criminal, if not (eg breach of contract) it is civil.
No, that's not right, OGA. Nor has it ever been so.
directors
The CA states that any director who knew, or by virtue of his position should have known=====. What happened to the Ranger's directors?