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The BBC and Craig Whyte: The Legal Fallout from the Documentary

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So we have now seen the BBC documentary about Mr Whyte, and his pre-emptive interview on STV. Where does this leave matters?

Will Craig Whyte Sue the BBC?

Mr Whyte has promised to sue the BBC for the programme. Although the specific areas where he alleged he has been wronged have not been identified. One wonders if his threat to sue is in the same tone as the Rangers’ pledge to appeal against the decision of Lord Hodge to grant Martin Bain an arrestment of £480,000 over Rangers’ assets. As far as I am aware no such appeal has been lodged, and indeed when Donald McIntyre came to court with a similar application this week, Rangers were not even represented.

I had actually expected Rangers to seek an interdict or injunction against the BBC, either at the Court of Session in Edinburgh or the High Court in London (as the programme would have been visible in England too). I anticipated that they would seek such an order a short time before the programme was due to air and, along with allegations that the commercial interests of Mr Whyte and Rangers were being damaged, would seek to argue that there was a breach of Mr Whyte’s Article 8 rights under the European Convention on Human Rights to privacy. In such cases, as for example in the High Court cases about Sir Fred Goodwin and Ryan Giggs, the courts are more likely to decide that the normal remedy for defamation – namely an award of damages – is inadequate and that publication should be restrained. This is the argument that one cannot get the toothpaste back in the tube.

However, that did not happen and if he is going to sue this will be on the basis that he has been defamed or libelled by the BBC.

It was easy to tell that the BBC reporter Mark Daly had done his research extensively (even if some of it seemed to build upon what the esteemed Mr Muirhead of this very site had published some months ago). Mr Daly had an extensive bundle of papers from various court cases to justify and back up his points.

In addition, the Head of Investigations for the UK Insolvency Service strikes me as a reliable witness!

The programme also made clear that, in connection with the convicted fraudster Sykes, Mr Whyte’s connection with him ended early this century, but the implication is clear. Quoting from court documents was a good idea as a fair report of court proceedings will usually attract qualified privilege and thus cannot form the basis of a legal action for damages, unless malice can be proved.

The Disqualified Director?

Whilst the alleged disqualification as a company director ended in or about 2007, and thus would have had no direct effect on Mr Whyte’s takeover of Rangers, there are substantial issues raised by this.

Some have already asked if he could be prosecuted for the alleged offence of acting as a “shadow director” when disqualified. As this is a statutory offence, there is only a limited time for bringing such charges.

He was not prosecuted however. This might be (a) because there was not considered to be enough evidence to give reasonable chances of a conviction (b) that it was decided not to be in the public interest to prosecute or (c) that there was little point in pursuing such a prosecution where the accused was resident in Monaco.

Again Mr Daly sourced these allegations from the court papers in relation to the winding up of Re-Tex Plastic Technology plc and L & S Registrars Ltd. See this link for further details regarding the winding up, though there is no mention of Mr Whyte in this brief report.

What reaction would there have been from the Rangers’ faithful if they had known this prior to the takeover? What reaction indeed from the Scottish media?

I am unaware of any reports prior to today that Mr Whyte had been disqualifies from serving as a company director. That might have made the press search into the background of the billionaire venture capitalist more thoroughly.

For the avoidance of doubt, business failures per se do not make him a bad person, but if there is a standard modus operandi, it might have raised concerns.

However, a seven-year disqualification does not generally come about for a minor lapse!

What about Mr Whyte’s Strategy in Response?

Once again, there are substantial questions regarding the Rangers’ PR plan.

The BBC indicated that Mr Whyte was advised of the allegations last week, but that he refused to answer them. Instead, five days later, the official statement came from Rangers withdrawing co-operation with the BBC on the grounds of its “prejudiced muck-raking”. Whilst the allegations about Mr Whyte’s unpaid staff in the 1990’s are of little relevance, the rest of the comments concerning disqualifications etc are very serious charges for an apparently respectable businessman to face.

Whilst he doesn’t like the allegations, “muck-raking” is almost defamatory in its turn.

The STV interview seems very odd in light of the subsequent BBC programme and according to the BBC he was well aware of the allegations by that stage.

Was it a good idea simply to ignore the allegations completely? I don’t think so. He could have used the STV interview to give some basic information about the allegations, whilst at the same time laughing them off as nonsense. He could have mentioned that, for example, he had been a disqualified director, but that he had worked very hard to get over those setbacks to put himself in the position he now held – a phoenix from the ashes as an example for Rangers?

However, he did not, and simply proceeded with the same generalisations covered in his meeting with the Rangers Supporters Trust, leading to many more questions than answers.

I am not a highly paid PR expert (and perhaps my analysis of this explains why) but I fail to see how the path he has taken helps him.

Stop Press – Carter Ruck Appointed to Act for Mr Whyte

Carter Ruck is one of England’s foremost libel firms. I think it is worthwhile quoting at length from its website.

“Where consulted before publication under its MediaAlert service, Carter-Ruck is often able to persuade a publisher or broadcaster to change its intended story or even to decide not to publish it at all. If this does not prove possible then the option of obtaining an injunction to prevent publication will be considered. The firm has an excellent record over recent years of securing injunctions prohibiting publication, particularly of private information. We are often able to secure injunctions in a matter of hours. We also have considerable experience of working (often alongside PR agencies) for blue chip corporations and other clients facing sustained and hostile media interest. Where defamatory or intrusive material has already been published Carter-Ruck has vast experience in providing swift and clear advice on the legal options available. Our forceful approach and reputation in both the libel and privacy fields commands the respect of editors and programme makers, which in turn means that claims are often resolved by negotiation and without the need for formal action. If, however, litigation is necessary this is pursued in a robust and determined manner with a constant focus upon our clients’ ultimate objectives.”

It would appear, if lawyers were instructed in sufficient time, as follows.

The BBC did not bow to pressure to stop the programme (if indeed such was brought).

Mr Whyte’s lawyers did not pursue an action to obtain an injunction or interdict.

Carter-Ruck is prepared to act in suitable cases on a “no win, no fee” basis. Thus Mr Whyte might not need to be dipping into his pockets to fund a very expensive case.

As Carter-Ruck is based in London, one can expect proceedings, if raised, to be brought on the High Court there, rather than in the Court of Session in Edinburgh.

Either Mr Whyte is going after the BBC, or he is engaged in a massive bluff.

What Now?

The possible case of Whyte v BBC might add to the list of actual and threatened litigation. Martin Bain and Donald McIntyre have already raised proceedings. John McClelland might do so.

HMRC have Rangers’ appeal against the EBT assessment to be heard and concluded in November.

Sir David Murray’s company which sold Rangers to Whyte could sue to enforce the undertakings contained in the agreement.

I hope that Mr Whyte and Rangers have a sufficient budget for legal fees – they seem to be on a crusade to refinance the legal profession on their own!

Written by Paul McConville | http://scotslawthoughts.wordpress.com

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