To follow on from my post re the Tixway case, which concluded yesterday, and regarding which I will pen a few more thoughts later, I wanted to write about the other personal court actions in which Mr Whyte is involved or has threatened.
However, almost three months after the BBC Inside Story programme about Mr Whyte, and his threats to sue, it does not appear that any action has been raised.
As Mr Whyte said to Tom English in Scotland on Sunday following the programme in October:-
“I’m suing and maybe the BBC are going to be paying the (HMRC) tax bill.“
One assumes the second half of the quote was intended in jest, or was that the master plan?
All of his public utterances were to the effect that a writ was heading to Pacific Quay (BBC Scotland HQ) immediately.
As I mentioned in the piece linked to above, I see no reason why he would sue in Scotland, if his intent were to win compensation for damage to his reputation. That suggested to me (and I accept this deduction may be entirely wrong) that he had received advice to the effect (a) that there was, in reality, no case at all or (b) the prospects of success were such that his lawyers, Carter-Ruck, were not prepared to act on a “no win, no fee” basis. Looking to pursue a claim like this on that basis is not a sign of impecuniosity on the part pf the claimant by the way; many rich and famous claimants have pursued libel actions under those rules, the reason being that, if successful, the client keeps most, if not all, of the damages, and the defendant has to be an inflated fee to the successful lawyers (inflated but in accordance with the rules).
However, these cases are expensive and on that basis, if a client has to funs d it himself, that can be a significant drain, even on a Billionaire’s resources!
One of the main reasons for campaigns for reform of the law of libel in England, as there seems little pressure to change Scotland’s defamation laws, is the way in which rich and powerful people use court actions, or the threat of them, to cow the media.
Notorious litigants, such as the late Robert Maxwell and Jeffrey Archer, were known for their hair-trigger response to negative stories, or even hints thereof. Carter-Ruck, as it was generally that firm acting for the plaintiff, would fire off a writ or a letter threatening court action.
In many cases the threat alone would work – the article would not be published and the lawyers would have again been successful in heading trouble off at the pass.
Media companies do not have the time, and do not wish to risk the resources, in contesting these claims, unless very sure of their ground. Papers like the News of the World, and in a different way, Private Eye, viewed litigation s an occupational hazard. The NotW had deep pockets, and viewed litigation sometimes, I am sure, as a way of keeping its name in the headlines.
Private Eye, on the other hand, whilst not having deep pockets, was prepared to face up to legal “bullying” and to deploy the reply given in Arkell v Pressdram (NB the link is from the excellent Jack of Kent Blog – well worth a read re legal and related matters.)
Most other organisations would fold. The editors did not want their reporters having to spend time closeted with lawyers preparing a defence and executives were always looking at the cost argument. It was easiest to move on to something else, and if a story had been published, to print a small apology and spike any follow up planned.
The above is not to say that Messrs Maxwell and Archer, amongst others were never libelled – of course they were, but biographies of Mr Maxwell make it clear how he viewed these writs as a way of successfully gagging the whole press.
Therefore, if a writ, or the threat of one, is floating about in the air, it would not be surprising, especially now when newspapers are far less profitable than before, if indeed at all, for an editor to ignore a story and move on.
Whether by accident or design, the threats by Mr Whyte to raise an action, and repeated mentions by his spokesman of the threat, and indeed on one occasion mention of “ongoing proceedings” has successfully gagged the main stream press from looking too far into various issues about Mr Whyte, or at least publishing them.
Therefore, whilst some nuisances like me point out that the promised “immediate” court action is becoming rather stale, it has actually been a very economical way of stifling discussion (as I said, whether by accident or design). It is a lot cheaper to make a threat, and to use PR spokesmen to keep the threat visible, than to pay a lawyer to raise proceedings!
There are rumours that the BBC still expects to receive a writ. I cannot see the point of it being raised now, and if proceedings are commenced, then this, bizarrely, gives the press more right to discuss the story. Fair reporting of court proceedings is allowed, and therefore media outlets who just now do not want to delve too far into the details of Mr Whyte’s phoenix like rise from the ashes, would be allowed to report on the BBC allegations, and further matters put up in their defence, which they are reluctant to do now.
Will this action ever be raised? I very much doubt it!
The Matrimonial Case
As I mentioned recently Mr Whyte has been taken to court by his estranged wife.
Mr Whyte is represented by Harper MacLeod, one of the most eminent Scottish law firms. One assumes that, with Rangers’ recent history of litigation by unpaid solicitors, Mr Whyte has paid them a substantial sum to account (which might be an entirely unfounded comment, and if so, I apologise to him).
As I mentioned before, this is only of interest to me in the context of how the financial aspects of the case affect Mr Whyte and Rangers.
In November 2010 the Daily Record reported that “Whyte, 39, has split from his wife Kim – who still stays in the Highland village in a mansion bought for her by the wealthy financial investor.”
Last week the Sun reported that the action was not a divorce, but instead an action for aliment. Aliment is the Scottish term for maintenance. One wonders how matters between the estranged spouses have reached the stage where Mrs Whyte is suing for maintenance, especially if it is true, as the Daily Record said in November 2010, that Mr Whyte had bought his wife her home in Grantown-on-Spey after the separation, at a price believed to be in excess of £400,000.
The case is listed on the court rolls for 26th January before Lord Tyre.
LORD TYRE – L Sexto, Clerk
Thursday 26th January
In terms of Rule 49, a proof has been allowed in the following action
|1||F145/11 Kim Whyte v Craig Whyte||bto||Harper MacLeod|
This is purely procedural. It simply means that the court has put in train the procedures to be followed for parties to get to a final hearing of evidence. Very few aliment actions ever make it to a hearing – settlement is the order of the day.
Why is such an action relevant to the matters I am looking at? A large part of the decision regarding aliment relates to the respective resources, in terms of income and capital (where the capital is capable of generating income) of the parties.
Mr Whyte’s present income therefore from Rangers and his various other successful companies, could fall under scrutiny if no agreement is reached.
As Mr Whyte said in the Tom English interview:-
“Good effort but I’m not going to name the companies because that’ll create a level of scrutiny for them and I don’t want to have that.”
If bto, who act for his wife, come looking for details of the companies, and Mr Whyte’s income from them, he will not get away with the same answer he gave to Mr English.
One of the interesting legal connections between Mr and Mrs Whyte (other than the rather important one of them being married) is that she was the director of Tixway UK Ltd on their return from Monaco, until after his director disqualification ended. In such circumstances, an inference could be taken, unfairly, that the disqualified director might have been a “shadow director” until legally allowed to step in. However, as Mr Whyte is an experienced man in corporate affairs, one would doubt very highly that he would have made such an error in full knowledge of the position.
If a divorce action were to follow, then this too would have the potential for forcing disclosure of details of Mr Whyte’s background which for business reasons and modesty he prefers to remain silent about.
Aliment actions are only in respect of the spouse, and not the children. Should there be any issue about maintenance for children in a separation, and this cannot be resolved by agreement, then the courts cannot decide that point. Instead the Chills Support Agency is tasked with obtaining declarations from the parents of their respective financial positions and deciding on maintenance accordingly. Unlike the court proves which, in general, would be in public, and CSA dealings are private, only becoming public where a party fails to abide by the order made by the CSA in which case the Child Maintenance and Enforcement Commission can take steps to recover sums due in court and to, effectively, punish the non-payer.
There is no suggestion that the CMEC is involved in this particular case, nor would I expect any issue to get within a million miles of its front door, but I thought a little bit of background might be useful.
The Insolvency Service
In the Tom English interview in October Mr Whyte had this exchange:-
“Question – They had a government official – Robert Burns, head of investigations at the Insolvency Service – saying that you could, potentially, have faced a two-year jail sentence for your involvement in a company, Re-tex Plastic Technology while disqualified. Is that true?
Answer – I’m not going to comment on specific allegations other than to say on the basis of what I’ve heard the Insolvency Service said last night, I’m looking into the possibility of suing them personally.
Question – Another law-suit?
Answer – For what he [Burns] said, he deserves to be sued personally. Because it’s a lie. If he said what I’ve been told he said, it’s a lie. The question to be asked here is if I’m being accused of something then why didn’t they pursue it, why didn’t they do something about it? The reason is because it’s not true.”
I am not aware of any court action having been raised against either Mr Burns or the Insolvency Service to date.
Carter- Ruck, in its statement on its website stating that it was advising Mr Whyte and Rangers FC “in connection with the BBC programme”. That does not exclude reference to a case against Mr Burns or the Insolvency Service, but it does not specifically say that it was going to happen either.
As with the BBC, if the allegations made are contained in court records, as was implied by the reporter, Mark Daly, holding a bundle of court documents during the programme, then as long as these are reported fairly, and without malice (and malice in a legal context is very hard to prove) then there is immunity from court action.
Mr Whyte did tell the Vanguard Bears supporters group at the end of October that he was:- “still being advised by Carter Ruck with regards to allegations made on the BBC Programme “Rangers – The Inside Story”, its researchers and contributors. Those who have repeated said allegations may also be pursued.”
I am unaware of any action having been taken against researchers, contributors or people who have repeated the allegations.
I suspect too that these threatened actions will not see the light of day either.
Along with the above, there were murmurings about action being taken against HMRC regarding the alleged leaking of confidential information regarding Rangers’ tax affairs. No such action has been taken, or at least publicised.
As Mr Whyte discussed with the Vanguard Bears:-
“I decided when I took over the club, that while I would address media imbalance, I would start with a clean slate, and expect the same in return. After seeing Mr Spiers’ involvement in the BBC Documentary, we were considering whether to withdraw all press privileges, but decided against it, as we were of the view that his influence and readership is not significant enough to trouble us. That said, when we took that decision we only considered “The Times’” reach in Scotland, not their reach in England and beyond.
It is too late to reverse that decision. If Mr Spiers appears on our radar again for the wrong reasons, we will take a more holistic view. In football terms he’s on a retrospective yellow card.”
This goes alongside the bans on the Herald and the BBC for their alleged unfair reporting.
To End, A Case Which Will Never Be Needed
It is always good to end on a positive note.
On Twitter recently, there was some speculation about whether or not Mr Whyte’s PR representatives, Media House, with the redoubtable Jack Irvine at the helm, might find themselves left short, should there be an insolvency event at Ibrox.
Mr Irvine himself was kind enough to chip in to reassure readers that there would never need to be a case of Media House v Rangers or Whyte.
Or as the man himself put it:-
“Jack always gets paid!”
More to come re Companies Issues etc etc