What Has Happened to Craig Whyte’s Threatened Court Action against the BBC?

 

The Sunday Mail today has reported that the BBC has refused to apologise to Craig Whyte in connection with the “Inside Story” programme last month. They report that Mr Whyte had earlier ordered his solicitors, Carter Ruck, to sue on his behalf, and that, as they have no right of audience in Scotland, they have engaged Bannatyne Kirkwood France to pursue the matter in this jurisdiction.

 

I find it very interesting that no action has yet been raised by Mr Whyte, despite the threats to do so immediately. As he was quoted as saying to Tom English in the Scotland on Sunday three days after the programme, “It’s outrageous. I actually can’t believe that they went with the allegations they went with. We told them. We sent lawyers letters all week, warning them that these things aren’t true and warning them what would happen if they ran with these allegations.” There was also comment from a spokesman for Mr Whyte that action was being raised immediately.

 

Interestingly, when Martin Bain won his arrestment order against Rangers, a Rangers spokesman was quoted as saying that they would be immediately appealing this “outrageous” decision. Nothing happened.

 

In connection with the Rangers dispute with former solicitors, Levy & McRae, Collyer Bristow (the London law firm in which Gary Withey, Rangers company secretary, is a partner) lodged a complaint with the Scottish Legal Services Commission on Rangers’ behalf. Levy & McRae alleged that this was done deliberately ignoring significant evidence produced by them to Collyer Bristow to the effect that they were perfectly entitled to act for Mr Bain, despite previously acting for Rangers, this being advice from two QC’s and from the Head of Professional Practice at the Law Society! Mr Whyte, in the same discussion with Mr English last month said, “Levy & McRae acted for Rangers previously and under Law Society rules they shouldn’t be acting against their client so when they represented Bain we complained about them to the Law Society…” This is despite Levy & McRae, about two months ago, asking the Court of Session to overturn the SLCC decision even to accept the complaint as irrational. Rangers, despite clearly being a party to the case, as the complainer, have not entered appearance and therefore, despite Mr Whyte’s noises, do not seem to be pursuing this issue now.

 

As far as the libel proceedings against the BBC go, Carter-Ruck has a well earned reputation as one of the most aggressive, and best, plaintiff’s firms. They generally do not wait prior to raising court action. One demand for a retraction or apology and then they are off to court. Indeed, with the rights of privacy under the Human Rights Act, there is often a case for seeking an interdict or injunction to stop publication of the article or programme complained of in advance.

 

As this is a case where, according to Mr Whyte the BBC knew his complaints prior to broadcast, then once the credits had rolled, one would have expected a writ to follow by return. In addition, there would have been no doubt that this action would have been raised in the High Court in London. People with even the most tangential connection with England try to get their cases heard at the High Court in London. They are known as “libel tourists”. Notorious cases where publications with only minuscule circulations in England have been successfully sued there have led to demands to change the laws, and in the USA for example, moves to make English libel awards unenforceable there. Why is England a good place to sue for libel? Firstly, even though awards of damages have been restricted from years past, they are still much higher than in other jurisdictions, including Scotland. Secondly, it makes far more financial sense for the client, and for his lawyers, to pursue a libel case in London, rather than a defamation action in Edinburgh. The BBC programme was shown, or was available to be seen, in England, and the BBC is based in London. There is no jurisdictional reason not to pursue the case in London.

 

High Court libel proceedings in London are far more costly than defamation proceedings in the Court of Session. Although presently subject to review, “no win-no fee” agreements are very common in libel cases in England, and Carter Ruck are one of the main users of them.  No win no fee agreements save the client funding the claim up front, and also protect them against costs if unsuccessful. The successful lawyer can also recover an enhanced fee from the defendant, increasing their recovery by up to 100%.

 

In Scotland, cases can be pursued “no win, no fee”.  The costs payable to the successful lawyer are far less, and whilst there can be uplifts of fees; they are far less than in English cases. There is little point in pursuing a defamation case in Edinburgh, if you can sue in England. Firstly any damages awarded will be higher, and secondly the greatly inflated costs make it far more likely that the defendant would settle.

 

He clearly has the best advice he can get, but it seems an interesting tactic to look to sue in Scotland. If the case goes ahead, there might be some interesting discussions about the jury. (In Scotland a defamation case is normally heard before a jury of 12 members in the Court of Session in Edinburgh.) After the verdict in John Wilson’s trial for allegedly assaulting Neil Lennon, there was some cynical comment about Scottish juries. One can only imagine what would be said about a jury which found in favour of Mr Whyte or one which found against him.

 

The Sunday Mail quotes his spokesman as saying “This legal action against the BBC is not about money.” I was told a long time ago that if a client tells his lawyer “It’s not about the money” you should run away very fast! The courts deal with monetary damages, not fixing reputations. And clients who say it is not about the money when a case starts become very concerned about it when the case ends unsuccessfully.

 

The Carter-Ruck website still states that they are “advising” both Mr Whyte and Rangers in connection with the programme. I’m not aware of any criticism of Rangers per se in “Inside Story”.

 

As far as the no win, no fee arrangement is concerned via Carter Ruck they state that the following are the factors they consider:-

  • The claim needs to be of a sufficient value or involve a fundamental right or important principle;
  • We need to be satisfied as to the merits of the potential claim; and
  • We need to be satisfied as to the opposing party’s ability to pay any damages and/or costs orders.

If we do not feel able to offer a CFA, we may be prepared to consider offering a differential fee arrangement, whereby we will charge reduced hourly rates as the litigation progresses and enhanced rates if, and only if, the case is won.

 

Presumably Mr Whyte’s solicitors think the claim is worth enough money – after all, accusations of criminality against a prominent businessman would seem to be material. In addition, the BBC can pay an award of damages.

 

Does this suggest therefore that Carter Ruck is not satisfied as to the merits of the claim? As I have commented before, the programme seemed to me to be framed very carefully, making accusations against Mr Whyte which come from public documents, such as court records. In addition, as far as accusations such as that of being a “shadow director” go, this appears to have come from court documents concerning the winding up of Re-Tex Ltd, and qualified privilege applies to reporting of court matters without malice. Proof of malice is extraordinarily difficult.

 

To conclude, does this look at the history of Mr Whyte’s threatened litigation since he took charge at Ibrox, show a pattern emerging of threats and bluster, but no concrete action?

 

 

 

 

Advertisements

14 Comments

Filed under Bain v Rangers, BBC, Courts, Damages Claims, Football, Rangers

14 responses to “What Has Happened to Craig Whyte’s Threatened Court Action against the BBC?

  1. TheBlackKnight

    Perhaps The Whyte Knight has been advised that he himself is “Carter Rucked” with regard to his own foolish comments.

    (in referring to The BBC The Whyte Knight said) “They’ve run with things that are totally, completely and utterly untrue. It just proves the case that they are a biased organisation, biased against Rangers. They’ve done it several times this season. They’re completely biased.”

  2. I am still amazed that the Rangers support can’t see through this man. The spin campaign started with a heavy handed approach, but they soon realised that they would buy anything, so any lie from Whyte will buy him time and support.

  3. john

    considering they never dwelt on Rankers dealing solely on his business history … I was amazed that Radio Clyde made all references to the TV programme and him where quoted as Sub Judice (” before the court; under judicial consideration”) just goes to show that infact the media based in scotland tow the line.. no discussion, no investigation, no information… infact no surrenduuuur….

  4. Steviemac

    But yet RFC and Whyte do so seem to love a day in court. Or at least you’d think so by the way they attract cases. Maybe their 1st appearance with current lawyers will be about an overdue bill.

  5. Night Terror

    While I’m sure you didn’t mean it this way, whenever I see the words “interesting” I read it as “totally mental”.

    Just me, I’m sure.

  6. Michael

    Where’s Adam’s (from RTC) comment/question?

  7. Michael

    TheBlackKnight
    November 13, 2011 at 11:21 pm

    are you the Random Thoughts polis 😉

  8. hector

    What a load of nonsense this pm lark stop, hiding behind pms ffs!!!!!!

  9. Brogan Rogan Trevino and Hogan

    I wonder what has happened to the threatened legal action in the course of the last couple of weeks, and whether Carter Ruck are continuing to instruct Bannatyne Kirkwood and France on behalf of Craig Whyte?

    In an interesting twist of fate, I would have to observe that much of Bannatyne Kirkwood and France’s reputation and expertise in this field was built up a number of years ago by one of their partners– One Alastair Bonnington– a very able lawyer and a thouroughly nice man in my limited experience.

    Alastair, is no longer with the firm alas, and as I understand it he left to become the inhouse solicitor—– to BBC Scotland!!!!!!

    • We are still waiting for that court action which was going to be raised immediately.

      The Carter-Ruck website still lists this as a matter where they are “advising” Mr Whyte.

      I suspect we would have heard from a “spokesman” if an action had been raised!

      I never dealt with Alastair Bonnington in his Bannatyne Kirkwood days, but I did when he was at the BBC, bizarrely in connection with a hotel bill left unpaid by BBC staff! I found him to be very pleasant and courteus (and the case settled too.)

      I understand he has now retired from the BBC, though pops up every wee while with articles for the BBC website.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s