Comment on Bad Money? by John Clark.

    Today's proceedings in Court-room 6, Parliament House.

    Before Lord Bannatyne,

    David Grier v Chief Constable

    Mr Smith QC for the Pursuer, David Grier

    Mr Duncan QC for the Defender (The Chief Constable )

    Mr Smith QC : My Lord, at the previous hearing 5 points were identified for action.

    These were: the need to identify the issues;the date for a hearing [Proof?];the question about Lord Mulholland; the report should be issued [?]; and the disclosure of documents. I shall deal with them in that order. I should add that another point is to be considered, the request that the Pursuer should specify the documents.

    Lord Bannatyne: Has a joint statement been provided…?I think it would be helpful ..

    Mr Smith : I agree.. I'm sure a draft joint statement of the issues  could be prepared…I think that could be done very quickly.

    Lord Bannatyne: Within a week..? 

    Mr Smith: Yes, m'Lord. I think my Junior has been ..[lost the rest]

    Lord Bannatyne: Within a week? …. 

    Mr Smith : [mumble']………

    Lord B: within hours?

    Mr Smith: ………. [mumble] … to procedural..

    Mr Duncan: I would ask that we keep a decree motion as a backstop, and I invite your Lordship to ordain ..

    Lord B: Can I leave it to Parties to arrange a date?

    Mr Smith:…..further specification of various matters, Scott Schedule questions…

    Lord Bannatyne; It's worthwhile….on the issue of causation and what your approach is? Can I leave it to you to set out a factual and legal note, re witnesses.Are there statements already?

    Mr Smith: I would prefer a detailed submission. If m'lord makes an order that I should answer…[missed the next bit] ..and it could end up that I am accused of not answering a point and therefore not being able to get summary decree..

    There are untrue statements made by two principals, Robertson and [Neil?]

    Lord B: I'm sure these points will arise very shortly…Can I speak to Mr Duncan…Mr Duncan, do you accept what Mr Smith says?

    Mr Duncan: No. Issues 3 and 4 (that it was the police driving the prosecution ) and (2) the seriousness of the allegations of criminality on the part of the Police)

    Lord B: How could this have got o a proof?

    Mr Duncan: Exactly. Pursuer had not a single witness. In my earlier submission at para 10 my friend avers that the Crown Office relies on the police. I couldn't take those non-specific averments and would like to know the basis for these averments. If there  is no evidence to support these averments, then we're back to how to proceed.

    Lord B: I wonder if.. how would it be if I ordain Mr Smith to deal specifically with each of the questions at 9 and 10 of your Note. If I say he has to deal with those points, does that deal with the issues? Then summary decree is the best way?

    Mr Duncan: As long as I have the opportunity to respond in writing m'Lord?

    Lord B: Yes, yes of course. If Mr Smith sends a note, you reply, he can amend, and you might revise yours, so that I have a complete idea of what I need to consider.

    Mr Duncan: That would be helpful. It would need more than one day.

    Lord B: Yes

    Mr Duncan: Yes.

    Lord B: This seems the best way. It means I have a full idea. So, do you agree 2 days, Mr Smith. I know that both Parties have their diaries electronic. 20th and 21st of August fit in?

    Mr Duncan: No.

    Lord B: 21st and 22nd?…….And Mr Smith, could you lodge note quickly..

    Mr Smith: As regards ordaining us to answer certain points, I wouldn't want that to mean that I couldn't later…

    Lord B: I wouldn't treat it like that. Mr Duncan?

    Mr Duncan: I broadly agree.

    Mr Smith: On the point of the Scott Schedule, at para 13 (a) (b) (c) and (d), the search of 100 000 emails, we saw Robertson's search was answer to identity of a person named by Robertson and no answer to the identity of the wife of [ lost that! But I think it might have been a sheriff].

    What's the [basis of?] …I'm advising the Court that in the Whitehouse case there is reference to something the Chief Constable knows. If your Lordship wants to know more the first thing is to require the Defender to answer the other matter about Lord Mulholland, and my observation at the previous hearing. It was said that Lord Mulholland personally directed the investigation, and that “we[the police] were 'just obeying orders'.”

    But Lord Mulholland had given a precognition that he did NOT do so, and COULD NOT constitutionally do so.

    This is not going away, the question of Lord Mulholland, m'Lord. All we get from the defender is 'we don't agree with anything that is not in the pleadings'

    Mr Duncan ( jumping to is feet); My Lord that is simply incorrect!

    Lord B: Can I let Mr Smith…?

    Mr Smith: I was accused of behaving outrageously….

    Mr Duncan: I cannot accept allegations against Lord Mulholland.

    Lord B: Can you go outside, gentlemen, and see if you can agree, avoid an unedifying argument…?

    Mr Duncan: I have no more to say. I cannot accept these averments.

    Mr Smith [moving on] : M'Lord, on the issue of disclosure of documents, we will park the question of the 100 000 emails [I didn't catch the rest]

    Lord B: Mr Duncan, can you come back to your para 9(b)-can you undertake to advise Mr Smith?

    Mr Duncan: [ missed exactly what he said, but it was about which version of whatever}

    Lord B: The iteration of the Scott Schedule as identified as the most up-to-date with the amendments to it made by Mr Smith today.



    Summary decree motion on 21st and 2nd August,

    detailed note within 7 days, 14 days for Mr Duncan to respond, 7 further days for amendment.

    Would Parties put documents that are to be relied upon by them into a single paper, one singe bundle. And a list of case references, and a Note from Mr Smith on 10(8)(d)?

    Mr Duncan: Could we make it 14,14 ,7 and 7, m'Lord? That would give me more time immediately I return from holiday.

    Lord B: Very well. Is there anything else parties wish to raise? No?

    Then thank you, gentlemen.

    The Hearing began at 12 noon, and finished at about 12.50.

    James Mulholland , journalist, was present [ no connection to Lord Mulholland!]; and two holiday makers from Australia were the only members of the public present other than me.

    John Clark Also Commented

    Bad Money?
    Life is full of more or less remarkable coincidences. 

    looking at the High Court of Chancery rolls list for tomorrow I came across this entry:

    "The Rolls Buildings,

    Hearing Room 2


    Tuesday 16 July 2019

    At 12:00 PM


    BL-2018-002250 DESMOND v Whyte and another "

    Please someone tell me that these are not Dermot Desmond , majority shareholder and Board member of Celtic ,  and Craig Whyte last owner of the original Rangers Football Club of 1872?

    That really would be a coincidence!


    Bad Money?
    "Always being honest, that is the most important thing."- so says that diving, cheating Neymar, who no more would understand the concept of fair play in sport than our unprincipled  SFA.

    But at least he's only a player, not the Governance body of a sport.

    Bad Money?
    easyJambo 13th July 2019 at 23:49

    '..Is Edusport seeking to transfer its SFA membership to a new club/company?'


    Naughty, naughty, eJ!.broken heart

    I think it must simply be that while the Edusport Academy Ltd is an incorporated business  it's spin-off football club was an unincorporated body, which I believe is permissible. Certainly, it's as 'Edusport Academy' that the club will be playing its fixtures in the coming season.

    It presumably makes sense now to think about separating the football club from the Academy by becoming a distinct legal entity by incorporation ( as it did for many of our venerable clubs which played competitively for some lengthy periods of time before they wised-up to the desirability of becoming limited companies). 

    Since incorporation cannot be backdated, I imagine the club will seek incorporation as 'Edusport Academy' and simultaneously change its name. It would be the same club, and entitled to its full history and record of sporting achievements. 

    I wish it well, even if  I don't much like the new name!


    Recent Comments by John Clark

    Accountability via Transparency.
    Ex Ludo 24th June 2019 at 09:24

    '….I would not be surprised if FIFA get a bit jealous and also build a shiny new symbol of wealth '…


    Your post prompted me to have a look ( not that I'm anything other than almost completely financially ignorant!) at FIFA's Annual report for 2018 at this link


    They could quite easily afford to blow a couple of hundred million quid on a vanity building project!

    ( I suppose, incidentally, that all the senior bods are covered by some form of directors' indemnity insurance?)


    Accountability via Transparency.
    StevieBC 23rd June 2019 at 15:35

    "…..He is limited to Bosmans and loanees to improve his squad, and deliver silverware. ..'


    I wonder does he know and appreciate how financially strapped TRFC Ltd is? Does he know even as much as we on SFM know about the finances, thanks to the efforts of several posters who know about balance sheets?

    Would any one of us apply for a job at Ibrox,  in the knowledge that TRFC  is living from hand to mouth, and faces having to meet some serious damages claims, which might well swallow up such UEFA money that they might receive this coming season?



    Accountability via Transparency.
    Corrupt official 22nd June 2019 at 20:20

    '..Dead clever these lawyers….'


    Are we speaking of William McCormick QC, who appeared for  King and Murray ( and TRFC and Rangers Retail) before Mr Richard Millett QC(sitting as a Deputy Judge of the (English) High Court on 22 March 2017?

    Para 28 of the judgment after that hearing has this:

    "Even by this early point it ought to have been obvious to all Defendants that Mr King and Mr Murray's positions as directors of the Company were hopelessly conflicted. On the other hand, the positions of the SDI-appointed directors to the Company's board were more closely aligned with the interests of the Company. It may very well have been the case that the business of the Company relied upon relationships with other entities in the Sports Direct group which were disadvantageous to the Company. That is a point of which Mr King makes much in his evidence, and much was made by Mr McCormick QC in his submissions on behalf of the Defendants. However, even if that were so, it ought not to have disabled the Company's board from seeking to uphold the IPLA and thereby protect its sole asset and revenue stream. The relevant comparator was between an allegedly disadvantageous IPLA and no IPLA at all, and ergo no business at all for the Company. "

    It doesn't seem too clever to me to be defending two members of the Board of Rangers Retail Ltd who, as also being directors of TRFC Ltd, were  acting (via boycott-support and purported termination of the deal that TRFC Ltd has with Rangers Retail ) not in the interests of Rangers Retail [ as they had a fiduciary duty to do] but in the interests of TRFC Ltd. 

    If it ought to have been obvious to King and Murray that they were 'hopelessly conflicted" how much more obvious ought it to have been to 'one of Her Majesty's Counsel, learned in the law'? broken heart









    Accountability via Transparency.
    My post of 20.15 refers ( the Court proceedings)

    On re-reading I find I did not complete a sentence. It's at this point

    " Mr Duncan: Absolutely, my Lord. I must make the point that what the Pursuer says about Lord Mulholland [ ed: Lord Mulholland stepped down as Lord Advocate in 2016. He was, of course, in office at the time the action against Grier was taken]..

    the end of the sentence is " is outrageous!"

    And Mr Duncan spoke with some feeling when he said that. 

    Accountability via Transparency.
    My version of the business ( quite technical business) in Court today. As ever, it's what I heard clearly enough to more or less get down in the words used. Nothing false has been deliberately added, and I think it's a fairly accurate report. I think eJ has mentioned that there was certainly an element of asperity and there has clearly been no real meeting of minds between the two Qcs.

    It's possible that there is an underlying question relating to the admission by the Senior Investigating Officer of 'errors' : the question as to the nature of the error(s) and the source.


    Before Lord Bannatyne.


    David Grier v Chief Constable , Police Scotland.


    Court sat at 10.30 a.m. 21st June 2019, in Courtroom 6, Parliament House.



    Mr Smith QC: Good morning, my Lord.

    I and Mr McLeod , my Junior, are acting on behalf of the Pursuer, and my Learned friend Mr Duncan and Miss Lloyd are acting for the Defender.


    You will know, my Lord, that much of this case has been litigated in the Sheriff Court and comes here for various reasons. I have provided you with a note..


    Lord Bannatyne: I have read your note…


    Mr Smith: The first question that arises, my Lord, is whether the case should be accepted by this Court?

    Lord B: I see no .. I think it's basically a commercial matter. Mr Duncan?


    Mr Duncan: Yes, I think it should be the Commercial Court.

    Lord B: Yes, we have seen cases like this often enough.


    Mr Smith: My Lord, I think that further procedure should be a matter of some agreement. What I would ask is that maybe in 6 or 7 weeks' time [?]for a period of adjustment. [ed: I think Mr Smith was looking for the Court to ask for something from Parties within a couple of weeks, and then another few weeks for adjustments before any hearing]


    The case has thus far been litigated by reference to a Scott schedule [ ed. In commercial cases this is “a table setting out certain information about the claim. It could take a lot of different forms, depending on the matter in dispute, and it could be short and simple or long and complicated.]


    It took to the end of February before we were advised of errors by the Senior Investigating Officer.


    Lord B: Having read the papers, that's where we are going. There's a suggestion that certain material issues could be debated, thus limiting the extent of any Proof. Should there be a debate on certain issues?

    It's important to make a decision, otherwise procedural hearing could go off in different issues. Can you say what is the status of the Scott schedule?What did the Sheriff do? I would abandon …


    Mr Smith : I understand, my Lord. The case as pled was essentially overtaken by the Scott schedule. For my part, I want to adjust the pleadings to make the averments include reference to the statement of admission. The purpose of the adjustment is to adduce the point in the status of the Scott schedule: I want to debate the defender's lack of defence.


    Lord B: We don't want to go off in all kinds of ways.


    Mr Duncan: My Lord, I believe there are two things to be done; First, we have to decide what are the issues, secondly, we have to decide how we are to deal with them. Your lordship has seen my note?

    Lord B: yes.


    Mr Duncan: [ ed: failed to hear what he briefly said]


    Lord B: Mr Smith, this case needs to be nailed down. Would it not be better if we took some more time? Should we agree to have a procedural hearing in about 3 to 4 weeks' time. And at that hearing decide whether to abandon the pleadings and work on the Scott schedule? {ed: apparently there are about one hundred and four pages of pleadings]


    Mr Smith: I don't quarrel with that. But I do want to adjust the pleadings, to delete stuff, and perhaps halve the proceedings.


    Lord B: I was intending to put it out for a day.


    Mr Duncan: I agree with that.


    Lord B: What would you think, Mr Smith?


    Mr Smith: I think the parties should liaise to seek agreement about the issues to be discussed.


    Lord B: yes. Parties should set out in a joint note, or two notes, what they think are the points they wish to argue. Then I could decide whether there is a need for debate.

    There are various side-issues, for example the status of expert witnesses, and various other issues that need to be looked at.


    Mr Smith: [ ed: didn't get his remarks]


    Lord B: I could fix a summary decree motion…if you say the matter can be dealt with by summary decree motion? Mr Duncan?


    Mr Duncan: Absolutely, my Lord. I must make the point that what the Pursuer says about Lord Mulholland [ ed: Lord Mulholland stepped down as Lord Advocate in 2016. He was, of course, in office at the time the action against Grier was taken]


    Lord B: Well, I don't think at this stage we want to go into all the various matters.


    Mr Smith:If we are to have a short procedural hearing in two weeks' time then there are documents in the possession of the police that ought to be handed over. I have been asking for them for some time.

    Lord Bannatyne: Mr Duncan?


    Mr Duncan: I'm not sure which documents my learned friend means. But I'll look into it.


    Mr Smith: With respect, my Lord, looking into it is not good enough. I would ask your Lordship to make an order .


    Lord B: Is there a letter your agents have listing the documents?


    Mr Smith: There has been correspondence and emails, my Lord. I do not have anything to hand.


    Lord B: Can you let me have the email in due course?


    Mr Smith: Yes, of course, my Lord.


    Lord B: The more I think about it, the more I think we need a procedural hearing.

    I need notes from Parties in order to get set on track.

    I will set a date.

    Preferably a joint paper, notes to be lodged at least 5 days before the date, and a note about what the pleadings are going to be, etc .

    [ Consults with Clerk with calendar]

    Friday 12th July.


    Mr Duncan: Can I ask that we have a later start, my Lord: I shall be in London that morning and need some time to travel back.

    Lord Bannatyne: Well, if we make it midday you won't have to catch the very first flight.


    Right, 12th July, midday.


    Thank you, gentlemen.”


    Court rose at about 11.30.