Bain v Rangers – Back In Court Friday 30th September

It has been confirmed that the case of Martin Bain v Rangers is due to have a further airing in the Court of Session next week.

It is intended to call at 2pm on 30th September and this is understood to be for the hearing of a motion lodged by Mr Bain’s Edinburgh solicitors, Balfour & Manson. This relates to a procedure known as “Specification of Documents.”

When a party to a court action wishes to get their hands on documents which are held either by the other side, or by a third party, then a “Specification” is lodged listing all the kinds of paperwork required.

If the other side in the cases agrees to produce them, then there might be no need for an order, but if this is opposed there will be  a hearing at court to determine what, if anything, the person lodging the “Specification” will be entitled to.

As this is due to call next week, the implication is that the application has been opposed by Rangers’ new solicitors, Anderson Strathern. Such opposition might simply be because they need to get up to speed on the case, having replaced Warners, who formerly acted, or, more likely, that their clients, Rangers, do not wish to hand over the paperwork.

In open court counsel for Mr Bain, Nick St John Ellis QC, will explain to the Judge why the particular documents are necessary for the case and how they are legally relevant to it. A party cannot go on a “fishing expedition” in the hope that something will turn up, but requires to identify specifically what they are looking for.

Clearly Mr Bain will have been able to discuss with his lawyers what details are needed to support his case, and what documentation exists to assist him.

It is understood that the Specification may be seeking papers in connection with the Independent Board Committee (IBC), set up by the former Board to safeguard, if possible, the interests of Rangers’ 26,000 minority shareholders. That Committee was tasked with assessing many factors regarding the takeover, including the ability of Mr Whyte and his companies to fulfill their promises.

As Mr Bain’s court papers state, the IBC had a difficult relationship with Mr Whyte. In addition the IBC, chaired by Alastair Johnston and including Mr Bain, issued a statement when the takeover concluded expressing doubt regarding certain of Mr Whyte’s plans

As it is understood that Rangers have made an issue of Mr Bain’s involvement on the IBC, this seems to have opened the way for the papers submitted to it to be relevant in the case. These may include details of opinions expressed to the IBC by people with past dealings with Mr Whyte.

If the information in question was helpful to Rangers, then Mr Bain’s legal team would not be looking for it.

If however it is unhelpful, either to Rangers or to Mr Whyte personally, then it would appear that somewhere in Rangers’ legal team, headed by their Company Secretary, London solicitor Gary Withey, there has been a further error, potentially opening a can of worms for Mr Whyte.

As Rangers’ new lawyers are recently instructed, they could seek a continuation of the hearing to allow them to consider matters. However, bearing in mind that Rangers seem to have been slow in progressing their defence and counter-claim, I would be very surprised if Mr Bain’s legal team did not push for a decision on Friday.

If the case drops off the court lists before then, that would suggest an agreement had been reached on what was to be handed over. On the previous form in this case, I would be surprised if the respective parties will agree on what day it is, never mind important matters like this!

It may well be worth a trip to Edinburgh on Friday to see the next chapter unfold.