Jessica Sutherland has been named Barrister of The Week by The Lawyer, published on Friday 3rd September 2021.
Barrister of the week: 7KBW’s Jessica Sutherland By Adam Mawardi
The Financial Reporting Council’s recent decision to slap EY with a multimillion-pound penalty for its Stagecoach audit failures was reached not through adversarial advocacy, nor a written war of words, but instead what Jessica Sutherland describes as a conversational approach to investigations.
According to the 7 King’s Bench Walk barrister, who served as sole counsel on the case, the watchdog’s enquiry demanded drafting skills different to those used when writing contentious submissions.
7KBW’s Jessica Sutherland
“You’ve got to be meticulous in your preparation and like in any case, you have to think through every conceivable angle. But you have to be prepared to move,” she explains. “It was not a case of FRC saying: ‘We are right in everything put in the initial investigation report.’ It was very much a dialogue with EY and taking on board their representations in order to come to an appropriate and fair decision.”
Across the two year document-heavy investigation, EY is said to have fully cooperated with the regulator’s in-house team of lawyers and forensic accountants, advisers from Orrick, and with Sutherland — who was instructed by FRC’s executive counsel and director of enforcement.
At the heart of the dispute were issues in auditing Stagecoach’s East Coast Mainline franchise, as well as failures over its pension scheme and insurance obligations.
In the FRC’s financial decision notice issued last week, the accountancy giant was given a severe reprimand and fined £3.5m, which was discounted to £2.2m due to mitigation, early admissions and early disposal.
The case, which is one of many FRC mandates that Sutherland has on the go, concludes a year after the regulator called upon the Big Four to ringfence their British auditing operations from their consultancy work. This came in response to widespread criticism for their collective role in the collapse of construction outfit Carillion, retailer BHS and travel agency Thomas Cook.
As one of the first cases under the FRC’s new investigation and enforcement powers, the Stagecoach decision exemplifies the level of scrutiny accountants now face. “But that doesn’t necessarily result in sanctions or adverse findings – it’s part and parcel of working with the industry to improve the audit culture and how the public perceives it,” says Sutherland.
7KBW’s involvement in the matter fits with its reputation in dealing with auditor disputes. For example, members Jonathan Gaisman QC and James Brocklebank QC have a history of advising Big Four firms, while Rebecca Sabben-Clare QC is known for her work against auditors – and introduced Sutherland to FRC when working together on an earlier matter.
Outside of her auditory work, Sutherland splits her time across a broad commercial caseload, with recent highlights spanning from international arbitration over a €400m superyacht to coverage issues born out of the forex scandal.
Beyond this, Sutherland is heavily involved in the set’s mentoring scheme for underrepresented groups, which also involves top members of London’s commercial Bar.
“I wish I had that kind of mentoring scheme when I was looking at the legal profession. I’m a comp kid from Newcastle and none of my family are lawyers. My first exposure to seeing barristers work was doing work experience at a criminal court,” she says.
Through mentoring undergrads and graduates, state-educated Sutherland hopes to show that it’s possible to juggle a busy practice with family life — particularly speaking from her experience as a mother and military wife whose husband has spent most of the year serving in the Middle East and Africa.
“I think it’s something really important, especially as a way of getting more women to the commercial Bar,” she says.