The business - Patrick Hosking finds fat cats thriving still

Companies will stop giving failed executives big pay-offs only when a shareholder sues the non-execu

Students of boardroom fat-cattery - a subject surely worthy of an entire university department - can see two strangely contradictory trends developing. On the one hand, shareholders are undoubtedly pushing harder to curb rewards for failure. Big institutional investors protest volubly about bonus schemes they don't like and routinely vote against company remuneration policies.

Yet at the same time, those ill-deserved rewards just keep getting bigger.

Thus it was that this month Sir Peter Davis, the former chairman of the supermarket group J Sainsbury, walked into the sunset with a £3.6m farewell package. I can't bear to calculate how many centuries it would take one of his checkout operators to earn that much. (OK, I can: three, give or take a decade.)

It's hard to find anyone in the City, the retail trade or J Sainsbury itself who now thinks Sir Peter did a good job and deserved the pay-out. But his contract and his bonus shares package were written exceedingly generously. The performance targets he had to achieve were risibly undemanding ("1. Turn up for work. 2. Er, that's it" is only a slight exaggeration).

By the time his fellow directors fully understood that he was heading for a jackpot to beat all jackpots, it was all much too late.

The story again underlines the lesson that rewards for failure are created at the time executives are hired and their contracts agreed, not when they are booted out. The problem is compounded by the complexity of these contracts and bonus schemes. The formulas are mind-boggling and the terms run on for pages. Remuneration consultants who devise these schemes have much to answer for. It's fitting that Towers Perrin has since been fired by Sainsbury.

Sainsbury's non-executive directors who approved Sir Peter's shares package in the first place have to carry the can. Two resigned on 17 September, but three remain. They did show some backbone in refusing to cough up at first; by going to mediation they got £1m wiped off the bill. Lord Levene, one of the directors who resigned, wanted the dispute to go to court rather than settle. But the board, under the new chairman Philip Hampton, didn't want the ongoing distraction.

Companies in these circumstances are almost always in trouble and therefore find it hard to justify ongoing litigation for comparatively small sums. Besides, non-execs will usually not be blameless so will prefer to settle, too.

One day, one of these disputes will doubtless end up in court. A big business leader will suffer the humiliation of being cross-examined in open court on his or her questionable record. But the real breakthrough - in terms of encouraging better behaviour in future - will come when a shareholder decides to sue the non-executive directors who are ultimately responsible.

Speaking of rewards for failure, Luqman Arnold, chief executive of Abbey, stands to walk away with up to £5.15m if the takeover by the Spanish banking group Santander goes through, as now seems likely.

Arnold hasn't exactly failed. When he was parachuted in a couple of years ago, Abbey was in a dismal state. In the coffers was a vast array of complex derivative assets that no one understood and which were of unknown toxicity. Meanwhile, the core savings and loans business had been horribly neglected.

Arnold offloaded tens of billions of pounds' worth of murky assets. As for turning round the core business, not much has yet been achieved. The name change, the image revamp, the product pruning and the efforts to regain customers' trust and respect have so far achieved little.

Arnold is not alone in striking gold. His finance director gets up to £2.1m, the customer propositions director (sic) gets up to £907,000, the personnel director up to £602,000, the IT director up to £1.1m and the operations director up to £846,000.

Joining a listing ship isn't necessarily a bad choice.

One thing that big pay-offs enable bruised businessmen to do is hire expensive lawyers. No one else can stomach their £400-an-hour charges.

Sir Philip Watts, the ousted executive chair of Shell, can afford a little expertise from his lawyers at Herbert Smith as he launches a legal challenge to the Financial Services Authority. He claims it treated him unfairly in its report into Shell's reserves mis-statement scandal. Shell misled shareholders for years, the FSA found, by overstating its reserves of oil and gas.

With his £1.05m pay-off and his £585,000-a-year pension, Sir Philip has the means to tie the FSA in legal knots for years. And perhaps to delay an FSA investigation into his conduct.

Patrick Hosking is investment editor of the Times