Clyde news can reveal Rangers Chief Executive Charles Green and Director Imran Ahmad are considering issuing a writ for damages against Craig Whyte for defamation of character.
It’s reported the former Rangers owner is poised to start court action against them, claiming he was working alongside Charles Green in the Sevco takeover of the club.
Craig Whyte has given a newspaper recordings of conversations he had with the pair in London before the deal was done, but we understand they believe he has not released the content in full as that would reveal the true detail of their negotiations.
Can Messrs Green and Ahmad sue Mr Whyte, and if so, to what end?
First of all neither of them could sue for defamation for anything which is said in court papers. Court actions are privileged and cannot found an action for defamation. That does not mean that one can say what one likes in court actions as the court, in Scotland anyway, has the inherent power “to delete scandalous averments”.
Secondly fair reporting of court proceedings is also covered by privilege, although less so than the court proceedings themselves.
It is unlikely that a newspaper could be sued successfully for defamation where it was reporting that a court action had been raised and describing the content of that action. In Scotland there are rules relating to when the precise content of court papers in a civil case can be disclosed, but in general, as court proceedings are public, in the absence of a court order prohibiting publication, these matters can be reported.
So that would seem to leave Mr Green and Mr Ahmad with court action against Mr Whyte for his comments in the press which are not taken from his court application.
Normally of course an action for damages would be taken against the publisher of the comments, being the newspaper or TV or radio channel, as well as against the person who makes the allegedly defamatory remarks. In fact there is no need to sue the maker of the remarks personally, as a right to claim damages lies against the publisher in his or its own right.
However an action against the Sun would prove problematic. The Sun could say that it was reporting fairly on a matter of public and commercial interest. Even more than this, it could plead that it had given Mr Green a right of reply and, from what I have seen, Mr Green’s reply to Mr Whyte’s charges was more prominent than the charges themselves.
Whilst giving an aggrieved party a right of reply does not excuse a libel or defamation, it greatly mitigates any loss. If Mr Green was to take the Sun to court for repeating Mr Whyte’s allegations, then the newspaper’s actions in allowing Mr Green to state his case would lead, in my opinion, either to his claim being dismissed, or else to him being awarded no damages at all.
None of the above, by the way, is to be taken as endorsing the views expressed either by Mr Whyte or by Mr Green.
If there is to be a court action, then the courts will determine the rights and wrongs.
If the Ibrox duo are therefore not going to sue the media, then why take Mr Whyte to court?
As we know Mr Whyte is claiming that he is entitled to part ownership of Rangers (a claim I will address later). He is however subject to court action for many millions of pounds by Ticketus. How likely is it that Mr Whyte would have funds to meet a damages award, or funds within the jurisdiction with which to do so?
There would appear therefore to be two reasons for pursuing Mr Whyte.
First of all, if Mr Green and his colleague can get their case up and running swiftly, it could well come to a full hearing before Mr Whyte’s claim, or could lead to Mr Whyte’s claim being delayed so that the actions can be dealt with together. They might hope that, by moving quickly they could persuade a judge to make an order restricting the parties from publicly discussing the issues in the case, thus preventing Mr Whyte repeating his allegations till the case is dealt with, which could be a couple of years down the line.
Secondly an action might be intended as a warning shot to Mr Whyte that, if he pursues his claim, he will face heavier guns in response.
This would be particularly so if any action was to be pursued as a libel claim in the High Court in England rather than a defamation claim in Scotland.
English damages awards, whilst much less than they have been as a result of reforms to libel law, are still generally higher than those in corresponding Scottish cases. In addition costs are significantly higher.
The prospect of Mr Whyte having to fund the defence of two High Court libel claims could be enough to persuade him to reach some form of deal. I speculated about whether or not the action he has, apparently, raised against Rangers/Mr Green would be on a “no win, no fee” basis. Even if it is, it is very difficult to make it economically viable to defend a claim on such a basis!
If proceedings were to be raised, then Mr Whyte would need deep pockets.
The nature of defamation litigation is such that the quicker action is taken, including interdicts to prevent repletion of the allegedly defamatory material, the better. The longer a claimant sits and waits, the more likely a court will view the matter as less than serious.
Making it known that one is considering suing for defamation is, frankly, a waste of breath. Either one sends a pre-litigation letter seeking damages, apologies, retractions etc immediately, or else one goes straight to the court.
From what Mr Green has been quoted as saying, the allegations of Mr Whyte are not news to the blunt Yorkshireman. He therefore may well have been able to have his lawyers briefed for quite such an eventuality.
However it would be far more conniving for his team’s supporters if he announced that court papers had been served. In that case, as with Mr Whyte’s own claim, there is a clear sign of commitment.
My prediction is that there will never be a defamation or libel action raised by Mr Green or Mr Ahmad against Mr Whyte. This is not because I have decided which side is telling the truth, but a reflection (a) of the practical matters stated above and (b) the necessity of the claimants themselves having to appear in court as witnesses.
No one proceeds to court willingly. It is, or ought, always to be a last resort. The risks to witnesses in going into the witness box and being comprehensively dismantled by a top QC are very clear. In fact Mr Whyte went through that very same process at Glasgow Sheriff Court!
Mr Green is unlikely to want to be in a witness box answering questions on oath about Mr Whyte. Such questioning is likely to include Mr Green’s apparent attitude to the truth, as quoted in the Sun. A PLC CEO will not come well out of such questions.
So we are left with sabre-rattling, which will continue until a court makes up its mind on the issues between Messrs Green and Whyte or until one party backs down.
We do have a situation, it seems, where Mr Whyte has nothing to lose and Mr Green everything at risk! In those circumstances, there is more chance of the matter getting to a court hearing, as neither party feels able to reach what otherwise might be a fair settlement.
Posted by Paul McConville