Legal Update re Rangers, Craig Whyte and the BBC – Will There Be Attempts To Stop Broadcast?

 

Craig Whyte Comments on the Resignations of John Greig and John McClelland

The Rangers website quotes from an interview Craig Whyte has given to the Express regarding the resignation of Messrs Greig and McClelland.

The newly resigned Messrs McClelland and Greig (in happier times)

The piece ends:-

Whyte told the Express: “I very much hope he stays in touch with us and comes to games. He is the greatest ever Ranger and will always be welcome at Ibrox. I also spoke with John McClelland at the weekend and again there was no indication that he was planning to resign. I suppose I shouldn’t be surprised about anything in football anymore but the timing of all this is odd.

I like the line about not being surprised about anything in football any more – after all, he has had an extensive five and a bit month’s involvement! Mind you, that probably is enough time to remove any illusions about the game.

 

Craig Whyte no longer surprised by anything in football

——————-

A Feast of Viewing – Craig Whyte on STV and the BBC Investigation into Rangers on BBC Tonight

The “exclusive” Craig Whyte interview with STV (well exclusive apart from the interviews given elsewhere such as to the Express) will be broadcast just before the BBC programme tonight. The BBC investigation goes out at 7pm on BBC1 Scotland.

It is described by Rangers as appearing “to be little more than a prejudiced muckraking exercise.

We shall see when the programme is shown, but one would imagine that if allegations were being made against Mr Whyte or his associates, that the BBC would have offered him a chance to respond.

The official statement referred to by Rangers continued “Efforts to ensure that reporting of the Club’s affairs should be balanced and fair appear to have been in vain.

This suggests that Rangers took exception to the questions they were asked.

So we will have an interview shown on STV where Mr Whyte will presumably “get his retaliation in first”.

Various commentators have speculated on Mr Whyte’s media strategy. So far his public pronouncements have been used against him and his companies. For example, it was his alleged statement, whilst Mr Bain was suspended, that the now former Chief Executive was never coming back to Ibrox which caused the resignation and consequent constructive dismissal claim.

In addition, Mr Whyte’s comments just before the Bain v Rangers arrestment hearing were taken into account by Lord Hodge in determining the outcome.

The Bain case is due back at the Court of Session tomorrow. One assumes Mr Whyte is well aware of that, and is restrained in what he says as regards the executive who served as right hand man to Sir David Murray, John McClelland and Alastair Johnston in their times as Chairman of the football club.

If anything inappropriate is said, then I am sure that Levy & McRae, who act for Mr Bain, will set their VCR to record it, and reference will be made to it tomorrow before Lord Menzies.

It strikes me that Mr Whyte’s tactics pose a certain risk for him. After all, his interview on STV might prompt people who were unaware of the BBC programme to watch it, or it may pique the interest of those who did not intend to do so.

Roll on this evening!

Mark Daly - presenter of the BBC Inside Story on Rangers

 

——————-

Can Rangers Stop the BBC Programme Being Shown?

Turning to the documentary itself, is there a possibility that Mr Whyte and Rangers might seek to prevent it being shown?

If it was considered that the programme was harmful to Rangers and/or Mr Whyte by being defamatory or libellous, and it was to be argued that the harm caused would not be assuaged by an award of damages at a later date (especially as the threat of insolvency swirls around Ibrox) then a court could be persuaded to interdict or injunct the showing of it.

I use both the Scottish and English terms as the programme, even when broadcast by BBC Scotland, will be available, by satellite or cable for example, in England.

I suspect that the BBC legal teams in both Glasgow and London are waiting for a call from the courts to advise that lawyers acting for Rangers have appeared in either, or indeed both, courts this afternoon seeking an order preventing transmission.

I claim no great knowledge of the English system, but in Scotland, the BBC will have a “caveat” lodged. This means that, if anyone applies to the court for an interim order, such as an interdict, the BBC is entitled to have its say before the order is granted. If there was no caveat, then if Counsel for Rangers appeared at the Court late this afternoon, they would possibly be granted an order banning the programme and the BBC would have no time to challenge it before transmission time. That is why caveats are lodged.

As the programme has been on the schedules for a couple of weeks however, if Rangers want to take such action, then they have to do so in enough time for the BBC to be able to be represented at court today, thus bringing forward their window for taking action.

A preview of later today, as Rangers' solicitor strolls to the court?

In addition, as the programme has been on the books for a couple of weeks, a last minute application to the courts might be seen as an effort to force the court’s hand, and could fail on the grounds that it could have been brought earlier.

Perhaps this explains why Rangers were unrepresented earlier this week when Mr McIntyre’s case against them called – their lawyers are tied up framing the interdict application for today!

One point a judge, if asked to consider the point, might find relevant, is that Mr Whyte is due, as I have mentioned, on STV earlier this evening. A judge, who will have no time to carry out detailed analysis of any allegations Rangers might make (though the reference to prejudiced muck raking suggest that they have some to put forward) might consider that the viewing public can make up its mind about each version, and if a damages action is pursued, the court can, at its leisure, assess the position fully. It would be ironic if Mr Whyte’s scheduled appearance on STV resulted in an interdict being refused!

The courts are reluctant to grant orders prohibiting publication in advance, but the advent of the Human Rights Act and the incorporation onto Scots Law of the European Convention on Human Rights under the Scotland Act have added an extra test for the courts.

The right to privacy enshrined in Article 8 of the ECHR states “Everyone has the right to respect for his private and family life, his home and his correspondence.”

As Max Mosley argued in his case against the News of the World, this right should be taken as paramount, unless the specific factors mentioned in Article 2 as being qualifications, being such measures as are “in accordance with the law and [are] necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” applied.

If for example Mr Whyte seeks to argue that in some way the BBC is infringing his rights, the argument is that the toothpaste cannot be out back in the tube – once the privacy is breached, then no award of damages can set things right.

Of course, none of this might happen, and the BBC can broadcast the programme unhindered. Alternatively, one of the judges at the Court of Session, or at the High Court in London, will find themselves wrestling with a knotty legal issue when they would rather be going home for their tea!

Perhaps, when the Whyte team got wind of the BBC programme, they could have sought an anonymised injunction in the English courts – I think it is too late for that to happen now however! If the BBC do not show the programme, that can only be because a court has barred them from doing so.

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Will Rangers Face Court Action from the BBC?

A short comment on this just now – a piece in the Sun (and I cannot get the link back up just now – sorry) speculates that the BBC will take Rangers to court in respect of their refusal to co-operate with the broadcaster, announced earlier this week, on the basis that this contravenes the contract with the SPL for media coverage.

Apart from the fact that the Sun piece is hedged with even more qualifications than I put in a piece, I wonder if the BBC has a case against Rangers at all.

Depending on the terms of the contract with the SPL, it might be that the BBC’s case would be against the League, rather than the club. This depends on whether or not the SPL acts as an agent for all its member clubs, in which case a contract is enforceable against the Club, or as an entity itself, where the BBC’s remedy for breach is against the SPL. It would be interesting to know (1) if Rangers consulted with the SPL before taking their action and (2) if the SPL intend to fine Rangers or otherwise penalise them if the club is in breach of its agreement. For example, I understand that the English Premier League fined Manchester United for the refusal of Sir Alex Ferguson to speak to the BBC.

Sir Alex Ferguson calmly explaining why he did not co-operate with the BBC for many years

More thoughts on this to come, perhaps.

 

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10 Comments

Filed under Bain v Rangers, BBC, Civil Law, Courts, Football, Human Rights, Injunctions, McIntyre v Rangers, Rangers

10 responses to “Legal Update re Rangers, Craig Whyte and the BBC – Will There Be Attempts To Stop Broadcast?

  1. John Johnston

    It really is brilliant having guys like yourself informing us Proles on what is actually (or potentially) going on, more power to you.

    Must be great to live in a country where a free and unbiased press would keep you informed.

    • Thank you John.

      Just doing my bit in a small way to try to explain some of the issues. At least the press seem to be going with the story now, and we need to thank various reporters and bloggers for bringing ther issues to light.

  2. Good work, Paul.
    It’s hard to get an insight into what Whyte expects to achieve by giving an interview to STV to counter the points raised in a BBC programme for which he has chosen not to be interviewed!

    Regarding the privacy issue – you wrote, ‘The right to privacy enshrined in Article 8 of the ECHR states “Everyone has the right to respect for his private and family life, his home and his correspondence.” ‘

    Does that actually mean anything in the context of investigating somebody’s business credibility?
    What is the definition of respect? Would it be ‘disrespectful’ to evaluate somebody’s general trustworthiness?
    Is it contrary to this Law to consider that a businessman or woman who supposedly does deals in good faith should be seen to be honourable in all other domains?
    What reliable, legal distinction is there between business confidentiality and personal privacy?
    Is the Article designed to discourage the suggestion that someone’s character might have a bearing on his professional integrity?

    I would think that investigations which look at considerations such as these aren’t what the Article is intended to address. Would a court consider an analysis of a businessman’s personal background to be fair game in the context of investigating his general character in the bigger picture?
    Not to put too fine a point on it, is it legally defensible for an investigative journalist to report that someone might come across as a generally shifty person from whom you wouldn’t want to buy a second-hand car, far less a business with a multi-million pound turnover?

    • I think that the Human Rights angle is important if trying to stop publication before it happens. Arguing that the damage is too great to be fixed by an award of compensation is a difficult one for a judge to decide at short notice. The “balance of convenience” argument would probably swing in the pursuer’s favour if there was a stateable case.

      But you are right that, in the long run, these matters are highly relevant, especially when they are matters of public record!

      The rich and powerful will use every angle at their disposal to protect themselves, whether morally justifiable or not.

      That said, I don’t think Mr Whyte will go to bed a happy individual tonight!

  3. John Johnston

    Not many hiding paces left after the BBC documentary, pretty much shredded Whyte’s reputation (if he had one).

    I’m currently watching BBC’s Watchdog programme, the crooks under investigation on that at least have the decency to run away.

    Seriously, would any trader with business at Ibrox continue in a trustful fashion?

    • John,

      If I was a supplier to Rangers, whether of goods or services, I’d be very wary about credit terms.

      It was an excellently sourced program, and as I wrote at Scotzine.com tonight, one which makes Whyte’s strategy look even more strange.

  4. Yo Big Lad.

    The programme revealed that before becoming chairman of Rangers, Craig Whyte had been disqualified from being a director of any limited company. While revelations like this are almost guaranteed to put Rangers’ minority shareholders off their dinner, there didn’t seem to be any evidence that Whyte did anything other than comply with the terms of his disqualification order. The wonderfully named Robert Burns of the Insolvency Service seemed to indicate that CW’s name had come up on the radar, yet was he ever investigated? That didn’t seem to be the case. Was he ever prosecuted for acting as a director while disqualified? Doesn’t seem to have been.

    I can see why he’s threatening to sue, because this programme shouldn’t have been shown. It was all very Eric Idle, nudge, nudge, wink, wink.

    • Martin, I’m delighted to see you venturing over to my dry and sparse uplands of legal blogging from your own ever fertile plains!

      I think the BBC position is that the Insolvency Service raised the issues re Mr Whyte as part of their petition to wind up Re-Tex (which was in 2003, if I recall).

      Reporting from court documents, as long as not done maliciously, attracts qualified privilege under the Defamation Act.

      At the time this was coming to a head, Mr Whyte was resident in Monaco. (I am not suggesting that the two factos are anything other than co-incidental.) Perhaps if the matter was reported to the CPS, they decided that there was no point in seking to pursue him in this regard. Perhaps the allegation was binned the second consideration was given to it.

      As you know, I am not one to take what the media say without a large dollop of salt – but the whole thing reminds me of a scene from “Yes Minister”. Bernard mentions something to the Minister, saying “There’s a rumour that ….” (I can’t recall the specifics). The MInister asks if it is true. Bernard replies “Oh yes”. The Minister asks “So you mean that….” Bernard says ” I don’t know”. When challenged he says “it’s true that there’s a rumour!”

      Can’t think why that came to mind!

      Hope you are well!

      Paul

  5. Pingback: What Has Happened to Craig Whyte’s Threatened Court Action against the BBC? | Random Thoughts Re Scots (and Other) Law

  6. Pingback: Rangers, Sevco and the Law – Threatened Court Actions – Duff & Phelps v BBC | Random Thoughts Re Scots Law by Paul McConville

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