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

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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

 

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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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Goodwin v News Group Newspapers – Contempt of Court – 23rd May 2011

http://www.bailii.org/ew/cases/EWHC/QB/2011/1341.html

The above links to the judgement of Mr Justice Tugendhat following a hearing on 23 May. Oddly the parties actively participating were neither of those named in the case title above.

Instead the matter called in connection with an application by the woman with whom Sir Fred Goodwin is alleged to have had an affair. In light of an article in the Daily Mail on 20 MAy, which followed a hearing in court on 19 May, the un-named lady sought to have the judge refer the publisher of the article to the Attorney General because publication of the article was” conduct impeding the purpose the court sought to achieve in making the order against the Defendant”.

The judge ultimately refused to refer the case to the Attorney General. This has already been reported as being a decision in favour of the Mail, but seems to ignore what was actually said in court.

The judge commented that the article made a number of factual statements about the lady in question, but the MAil submitted that “The effect of the false information… was that it would tend to make a reader less likely to identify the lady.”

The judge responded by saying that “another effect of the false information is that it would tend to mislead the reader into believing that it would be in the public interest for the identity of the lady to be disclosed.”

An allegation was made that the ;lady had been promoted when Sir Fred had been in charge at RBS, though nothing in support of that accusation had been put forward at court on 19 May.

Tugendhat J commented “If ANL (Associated Newspapers Ltd) had had evidence of a misuse of corporate power by Sir Frederick Goodwin then that might have been a very powerful argument for discharge of the injunction”.

The Daily Mail in question also had an article by our favourite MP, Mr John HEmming, where he stated it was in the public interest for these matters to be raised and that the injunction had prevented the regulatory authorities investigating matters. Perhaps Mr Henning was unaware of the terms of the court’s judgement the previous day when he wrote his article.

However the judge had made it clear in open court, when representatives of ANL were present, that these statements were incorrect.

Having considered all matters, Mr Justice Tugendhat decided not to refer the matter himself. He did make clear that it was open to the Applicant to do so herself. The Attorney General is capable of determining further procedure in such circumstances himself. “If the Attorney-General does decide to consider this matter, the contents of this judgment will be available to him”.

It can’t be said that the newspaper has been at all successful when it appears that it has published information about the party in question which was clearly against what the Judge said in court the day before.

Here seems to be another example of the press seeking to stretch the boundaries of what they are allowed to publish, and without the Applicant here doing something about it, who knows what action, if any, might have been taken.

It is noticeable that certain of the parties who are alleged to have so-called “superinjunctions” (even though they are actually anonymised injunctions) have been featured in newspapers in what appear to be light and almost substance-less pieces. Clearly the papers know who they can’t talk about, and they deliberately try, it seems, to get them in the papers anyway, especially with fulsome references to their spouses or families.

But perhaps it has been always thus.

Will the Applicant here refer the matter to the Attorney General – we can only wait and see.

Will There Be Any Action Against Mr Hemming MP?

For all that various MP’s such as Tom Harris have deplored Mr Hemming’s conduct, we saw when the Speaker let the Met Police in to the Palace of Westminster how defensive MP’s get when they think people are “going after them”.

Even the various expenses fraudsters and thieves who are now guests of Her Majesty tried to argue that their crimes were protected by privilege (though unsuccessfully).

I see no chance that the House takes any action which would open Mr Hemming up to court action, and I suspect it is unlikely the Attorney General would give the go-ahead for any such proceedings against a fellow MP. (Not, I hasten to say, simply because he is a fellow MP.)

If CTB sought to proceed against Mr Hemming for breaking the injunction (a) does that require the AG’s approval and if not (b) how would a judge view Mr Hemming’s comments.

Would privilege hold or would this fall in to one of the grey areas described by the Master of the Rolls last week?

I don’t know, but suspect those questions will now be academic, at least in this case anyway!

Super Injunctions, CTB and Ms Thomas

There is clearly a debate to be had as regards so called “super injunctions”, privacy and prior restraint issues. However the CTB case is not the one to have as the battleground if the press want things to go their own way.

Here, as in all of the published judgements in anonymised injunction cases on privacy, the courts have carried out the relevant balancing test. On one hand, they have the right to privacy and on the other the right to free expression. The judges did not invent these – instead they are in the law as laid down by Parliament. It is quite clear that each case turns on its own merits and the judges have not been afraid to refuse or withdraw interim injunctions (in the John Terry case, for example).

Here we have a case where, as seems to be standard in recent cases, including Fred Goodwin, the press do not advance any public interest argument at all. Still the judges carry out their balancing test, but the absence of a public interest (rather than of interest to the public) makes it far more likely that an interim injunction will be granted.

It should also be noted that these orders, at this stage, are interim orders pending a full trial where each side would be able to argue its case and put forward witness evidence in support.

It is also noteworthy that, from what I have seen, the recent tack of the press is not necessarily to oppose an interim injunction, but not to consent, thus allowing them to say that they have been “gagged” by the evil celebrity plaintiff.

One stated reason for the anonymised injunction and the strict rules applicable, is to stop jigsaw identification. In more than one of the recent causes celebres there have been articles in the press or on newspaper’s websites which, standing alone, seem to be there for little or no reason, but are in fact one way of the paper to creep round the orders by way, for example, of gushing references to someone being a “family man” and to his glowing spouse etc. The editor clearly knows what he is doing, but there is nothing actually in the article to break the order. In fact CTB and his family have recently been prominent in the press for, I am sure, this very reason.

Turning specifically to CTB and to Ms Thomas, there are four matters which seem to have been ignored by the media as she has travelled round the press and TV studios weeping into her hankie. (1) She was represented at the hearings in this case, as she is one of the named parties. (2) She did not oppose the granting of the interim injunction against herself. (3) She failed to produce to the court a statement or any evidence to contradict that of CTB, thus allowing the court to form a view that there may well have been a sort of blackmail afoot here. (4) The presence of photographers referred to at the hotels where Ms Thomas arranged latterly to see CTB suggested to the court that there was some sort of sting operation in effect.

In addition, neither the newspaper nor Ms Thomas have appealed against the granting of the interim orders, which they could have done if it was felt by their advisers that the court had erred in making the order.

If this were a libel case for false accusations, then the courts have for many years worked on the basis that a finding in favour of a plaintiff and an award of damages will suffice.

However in connection with privacy matters, there needs to be a system of prior restraint open to the courts, though it ought not to be granted automatically. Once the toothpaste is out of the tube, then it can’t go back in. A later award of damages for breach of privacy, as per Mosley, is not sufficient.

We now turn briefly to the failure of the agents for CTB to obtain a relevant order here in Scotland because, in the absence of such, the Sunday Herald felt free to publish yesterday. But already publications in Spain, USA and elsewhere had printed the name. The lack of any application to the Court of Session however left the door wide open for a publication of the type which took place, and this has been known to be the case since the days of Spycatcher, when the book could be bought in Gretna but not in Carlisle, for example.

So, in this case, where we have, allegedly, the newspaper in question working, whether innocent or not, with an apparent blackmailer (as stated by the judge but not specifically alleged by CTB) for the financial gain of one, other or both defendants, the brave Mr Hemming felt it appropriate to jump in today and name CTB.

This was, apparently, to stop the secret imprisonment of thousands of twitterers, notwithstanding that the Attorney General had stated, minutes before, that no such proceedings (and whether or not in secret) were presently in contemplation.

This effort to link the issue with secret imprisonment smacks of the campaign by Mr Hemming re the Family Courts (referred to in detail at http://www.head oflegal.com) and where he was shown to be spouting arrant nonsense.

It is quite clear that Mr Hemming’s disclosure today has only been in the interest of News International, an alleged blackmailer, and Mr Hemming himself. He has abused the privilege he has as a Parliamentarian, and to what end?

As far as the wider argument goes, all the good generated by the “outing” of the Trafigura injunction has been lost as a result of the case of CTB being seen as the present battle ground.

The only people frankly to emerge from this mess with any credit are the judges – they have applied the law as given to them by Parliament – have applied the tests laid down in the legislation – and have tried to uphold the Rule of Law, despite the efforts of others such as Mr Hemming to determine what the outcome should be.

Do we want to be in a situation where the papers are the ultimate judges as to what private mistakes are aired for the prurient interest of some members of the public? The same fine and upstanding press who seem to have done more bugging than even MI5 as described in Spycatcher!