Martin Bain v Rangers – Settlement Agreed? All Friends Again?

News broke yesterday which rather surprised me.

“Martin Bain Drops damages action against Rangers” stated the BBC.

I wonder if the settlement of this case, as I discuss below, is a prelude to Mr Bain throwing his hat into the ring with one of the bidders, perhaps with the Blue Knights?

————-

Mr Bain’s statement, issued through his lawyers, Levy & McRae, included the following:-

“Everyone close to Rangers Football Club knows that I am, and always have been, totally committed to the club and that remains my position. As chief executive and part of the independent board, our job was to assess and highlight to all stakeholders if we believed there was uncertainty over the future financial viability of the club under new ownership.

“Unfortunately, the independent board had no legal power to block the transaction and Sir David Murray made it plain that he wanted to sell.

“I strongly recommended on more than one occasion that Craig Whyte should not be allowed to buy the club. Unfortunately that forceful representation was not accepted and when he took over I was suspended and my contract ripped up.

“With what has subsequently transpired, it is quite obvious why he disposed of me in the manner he did. I was further vilified in the press and continue to be subjected to endless rumours and attacks.

“I had no option but to pursue a claim based on Craig Whyte’s actions – the litigation was a response to his actions and not those of Rangers Football Club.

“I firmly believed it was important to make sure he would have to explain everything he did in a court of law.

“Because of the legal process it has not been possible or appropriate to make public comment, which has been extremely hard given the flow of misinformation and falsehoods both myself and the club had been subjected to.

“In light of the club’s current position I instructed my lawyers to advise the administrators that I am willing to discontinue the legal action. Subject to recovering the costs associated as a result of this action, I will give over to the administrators the remainder of the money that was arrested as part of my case in an effort to help the club.

“I always have done, and will continue to do, everything I can to help the club in these difficult times.”

————-

 

Advertisement

Levy & McRae v Rangers – Back In Court – 9/11/11 – But Only To See If The Bill’s Been Fully Paid

On Wednesday November 9th November Lord Hodge is to deal with a By Order calling of the case brought by Rangers’ former solicitors for non-payment of fees.

When the case called before, there were the undertakings about payment, and accusations that Levy & McRae were being unfair in pursuing the action and not accepting the pledge that they would be paid.

This delay, which was admitted by Craig Whyte as having been caused by his annoyance at Levy & McRae deciding to act for Mr Bain despite what the Court was told,  will have cost Rangers several thousand pounds in legal fees, but infinitely more in terms of cost to its reputation.

The judge continued the case till Wednesday between 930 and 10 am.

As long as (a) Rangers have paid the full sum due and (b) paid full costs as demanded by their former agents, then the calling will be purely formal, and Lord Hodge will have the action brought to an end.

If Rangers have not paid the legal costs of the case, or these have not been agreed, then the remaining issue would probably be referred to the independent Court official whose job it is to decide the fair level of costs.

There is little prospect of there being interesting legal argument in this case next week.

It means one down, but how many more to go? As even Mr Whyte himself admitted, when interviewed by Tom English for the Scotsman, he did not know how many there were!

 

LORD HODGE – D. Morrison, Clerk

Wednesday 9^th November

 

By Order

between 9.30am and 10.00am

 

1

CA100/11 Levy & McRae v The Rangers Football Club

Balfour + Manson LLP

Warners

Did Craig Whyte and Rangers Mislead the Court of Session?

 

Earlier this year, the respected law firm Levy & McRae, sued Rangers for payment of a £35,000 bill for representing the club in UEFA disciplinary hearings.

The case called in court for a couple of procedural hearings before it was finally resolved and the bill paid.

At the time it was reported that “Judge Lord Hodge was told that Rangers’ new owner, Craig Whyte, wanted to check the details as the claim dated back to when Sir David Murray controlled the club.” – BBC Website 9^th September 2011

A Rangers spokesman is quoted in the same piece as saying “”The remarks in the Court of Session today made by McRae & Levy with regard to their concerns about the club’s solvency are unfounded and unwarranted and these are nothing more than scaremongering tactics. The club is extremely disappointed and angry that this action was taken when there were categorical assurances from the club’s lawyers that the money was on its way and it is regrettable that those assurances were not deemed sufficient.”

It is quite in order for a party presented with a bill to delay payment where they have any doubts about it, with the risk of having to pay extra costs, as indeed Rangers did in this case. It is however inappropriate at best to refuse to pay because the other party has annoyed you, and much worse if you instruct your lawyers to defend the case on the ground that you are “clarifying” matters when in fact you are doing so for no legal reason whatever.

If a client tells his lawyers to take action on one basis, but is not being truthful in the instructions he is giving, then this can create a very difficult position for the solicitors and counsel involved, especially as Counsel has to appear in court to put forward the client’s position.

In an extraordinary interview printed in the Scotsman today Tom English spoke to Craig Whyte. There is much to look at in the article, but there is one piece in particular to focus on now.

“Tom English – You seem to be constantly fighting people. The tax man, Bain, McIntyre, the BBC, various solicitors firms, all sorts of people. Levy & McRae took action over an unpaid bill of £35,000. Why is there so much hassle?

Craig Whyte – 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 and to be fair we were a bit bloody-minded when we said we weren’t going to pay them because they started acting for Bain against us. That was the reason we didn’t pay them. They took us to court and with hindsight it would have been easier just to pay them.”

I have highlighted the relevant words – Mr Whyte is stating, in public, that the reason for defending the case was not that stated by Rangers’ counsel to the court, but an entirely different one – indeed a “bloody-minded” one! The court was given no indication that the “defence” to the action was to do with any conflict issue.

I have written about this case, and the conflict of interest point before here. I suspect that Levy & McRae might want to politely have Mr Whyte reminded that they took extensive advice prior to acting for Mr Bain, and that Mr Withey of Collyer Bristow, who is on the Board of the company controlling Rangers, failed, allegedly, to advise the Scottish Legal Complaints Commission that Levy & McRae had explained this in detail to him when he lodged his complaint.

Mr Whyte, potentially, will stand up in the Court of Session to give evidence next July in the Bain case. He may well stand up in court in the Court of Session or elsewhere in connection with his threat to sue the BBC. He may be require to attend court as a witness in other cases.

I suspect that Counsel cross examining him in any case will be referring to what I have mentioned above as a way of questioning Mr Whyte’s credibility as a witness.

And as Lord Hodge, the Commercial Judge, is likely to have an involvement in further cases involving Rangers, whilst His Lordship will not of course be affected by newspaper stories, it might lead him to view with an added pinch of salt submissions being made to him.

I am sure however that this is all in fact a misunderstanding, and that Counsel for Rangers got his instructions wrong in some way when appearing in September, or else Mr Whyte has in some way been misquoted.

Surely a prominent businessman would not have admitted in an interview to having effectively misled a court.

 

 

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.

——————-

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.

 

Bain v Rangers – Back In Court Friday 30th September

It has been confirmed that the case of Martin Bain v Rangers is due to have a further airing in the Court of Session next week.

It is intended to call at 2pm on 30th September and this is understood to be for the hearing of a motion lodged by Mr Bain’s Edinburgh solicitors, Balfour & Manson. This relates to a procedure known as “Specification of Documents.”

When a party to a court action wishes to get their hands on documents which are held either by the other side, or by a third party, then a “Specification” is lodged listing all the kinds of paperwork required.

If the other side in the cases agrees to produce them, then there might be no need for an order, but if this is opposed there will be  a hearing at court to determine what, if anything, the person lodging the “Specification” will be entitled to.

As this is due to call next week, the implication is that the application has been opposed by Rangers’ new solicitors, Anderson Strathern. Such opposition might simply be because they need to get up to speed on the case, having replaced Warners, who formerly acted, or, more likely, that their clients, Rangers, do not wish to hand over the paperwork.

In open court counsel for Mr Bain, Nick St John Ellis QC, will explain to the Judge why the particular documents are necessary for the case and how they are legally relevant to it. A party cannot go on a “fishing expedition” in the hope that something will turn up, but requires to identify specifically what they are looking for.

Clearly Mr Bain will have been able to discuss with his lawyers what details are needed to support his case, and what documentation exists to assist him.

It is understood that the Specification may be seeking papers in connection with the Independent Board Committee (IBC), set up by the former Board to safeguard, if possible, the interests of Rangers’ 26,000 minority shareholders. That Committee was tasked with assessing many factors regarding the takeover, including the ability of Mr Whyte and his companies to fulfill their promises.

As Mr Bain’s court papers state, the IBC had a difficult relationship with Mr Whyte. In addition the IBC, chaired by Alastair Johnston and including Mr Bain, issued a statement when the takeover concluded expressing doubt regarding certain of Mr Whyte’s plans

As it is understood that Rangers have made an issue of Mr Bain’s involvement on the IBC, this seems to have opened the way for the papers submitted to it to be relevant in the case. These may include details of opinions expressed to the IBC by people with past dealings with Mr Whyte.

If the information in question was helpful to Rangers, then Mr Bain’s legal team would not be looking for it.

If however it is unhelpful, either to Rangers or to Mr Whyte personally, then it would appear that somewhere in Rangers’ legal team, headed by their Company Secretary, London solicitor Gary Withey, there has been a further error, potentially opening a can of worms for Mr Whyte.

As Rangers’ new lawyers are recently instructed, they could seek a continuation of the hearing to allow them to consider matters. However, bearing in mind that Rangers seem to have been slow in progressing their defence and counter-claim, I would be very surprised if Mr Bain’s legal team did not push for a decision on Friday.

If the case drops off the court lists before then, that would suggest an agreement had been reached on what was to be handed over. On the previous form in this case, I would be surprised if the respective parties will agree on what day it is, never mind important matters like this!

It may well be worth a trip to Edinburgh on Friday to see the next chapter unfold.