THE BBC are facing a multi-million-pound defamation action over a documentary that sparked a failed Rangers fraud investigation and led to malicious prosecutions.

Three business turnaround experts from financial consultancy firm Duff and Phelps are expected to pursue the claim later this year which has been lying dormant for over six years.

The Herald on Sunday has been told that the damages actions are in place to be kickstarted at Glasgow Sheriff Court once the series of claims against Scotland's most senior law office, the Lord Advocate and the nation's highest ranking police officer, the Chief Constable are concluded. That is expected later this year.

New papers seen by the Herald on Sunday have laid bare the concerns over the documentary which it is claimed police relied upon in the bungled investigations.

Former Rangers administrators Paul Clark and David Whitehouse and key Rangers takeover figure and business consultant David Grier have all put their names to the action which centres on the BBC Scotland documentary, Rangers: The Men Who Sold The Jerseys.

READ MORE: Scotland's top law officer admits malicious prosecution over Rangers fraud case

Mr Clark and Whitehouse agreed an "extra-judicial" settlement estimated to be around £24m in their malicious prosecution case against the Lord Advocate and the Chief Constable.

Mr Grier, 58, has been seeking £5m damages from the Lord Advocate and £9m from the Chief Constable over his treatment while Lord Tyre, a senior commercial judge at the Court of Session, ruled that there was no "probable cause" to prosecute.

HeraldScotland:

David Whitehouse and Paul Clark

But Lord Tyre last week said that Mr Grier had not made out a case that there was a malicious prosecution. Mr Grier is expected to fight the case on appeal.

Lord Tyre, in raising questions about the level of damage done to Mr Grier's reputation by the investigation has said BBC broadcasts "may have had a significant effect before any prosecution had begun".

Mr Grier, an insolvency expert also with Duff and Phelps, was charged in 2014 along with a number of other men during an investigation into how Craig Whyte bought the company that ran the Glasgow football club three years earlier.

He said police arrested him at his home in the south of England at 6am and drove him north to Glasgow.

Mr Grier, a key figure in businessman Craig Whyte's purchase of Rangers from Sir David Murray for £1 in May 2011, had said that many years after his arrest, he still had no idea why he was prosecuted over his involvement.

Mr Whitehouse, Mr Clark, Mr Grier and four others were subjected to detention and criminal proceedings in relation to fraud allegations in the wake of Craig Whyte's disastrous purchase of Rangers and its subsequent sale before a judge dismissed all charges.

The police investigation was launched against a backdrop of the controversial nature of Mr Whyte's nine-months in charge which ended with the club's business going into administration with debts soaring over £100m while the team ended up relegated to the bottom rung of the Scottish football pyramid.

Mr Whyte had agreed to take on Rangers' financial obligations, which included an £18m bank debt, a potential £72m 'big tax case' bill, a £2.8m "small tax case" liability, £1.7m for stadium repairs, £5m for players and £5m in working capital.

HeraldScotland:

But he controversially helped fund his takeover by setting up a loan in advance from London-based investment firm Ticketus against rights to three to four years of future club season ticket sales in a bid to raise £24 million and pay off bank debt as part of a share purchase agreement with Sir David Murray. It was later argued by prosecutors that this was unlawful financial assistance.

The BBC Scotland documentary which detailed the Ticketus deal has been a key part in all three Duff and Phelps men's concerns over their eventual treatment.

It raised questions over a possible conflict of interest for Mr Whitehouse and Mr Clark, who were part of a company called MCR Partners - subsequently bought over by Duff & Phelps - which had advised on Mr Whyte's purchase. Mr Clark was a founding MCR partner.

Both men went on to become Craig Whyte-appointed administrators with the taxman, one of the key club debtors concerned that the controversial club owner would be driving events.

The documentary featured the controversial deal Mr Whyte had entered into with Ticketus to help fund his purchase of the club.

David Grier, a senior partner from Duff and Phelps at the time, insisted he was unaware until August 2011 that Ticketus had helped fund Mr Whyte's purchase of the club.

The BBC programme broadcast emails which appeared to show that he knew a deal was under way in April, before Mr Whyte's takeover was complete.

HeraldScotland:

From the documentary: "Duff and Phelps say Grier only played a limited role in the takeover.  But here he is, side by side with Whyte on the day he took up the reins at Ibrox."

The Bafta award-winning documentary also raised questions over whether it was appropriate for Duff and Phelps to accept the appointment of administrators, because of the nature of the firm's relationship with Mr Whyte.

A number of complaints about Duff and Phelps' appointment were subsequently made to the Insolvency Practitioners Association (IPA) - the professional body which licenses insolvency practitioners.

It found that Duff and Phelps was not conflicted in accepting the appointment as Rangers' administrators.

A month after the broadcast, the Crown Office instructed police to conduct a criminal investigation into the purchase of the club and its subsequent financial management.

Officers suspected Mr Grier, of London, had broken the law during the sale of the Ibrox side and the businessman was charged with fraud, conspiracy, a charge under the Proceeds of Crime Act and a charged of attempting to pervert the course of justice - before the case was dropped.

Over four years ago, Mr Whyte, who was last man standing in the failed Rangers fraud probe was cleared of acquiring the club fraudulently in May 2011 and another charge of "financial assistance" under the Companies Act - which centred on the payment between Mr Whyte's Wavetower company and Rangers, using Ticketus, to clear the club bank debt.

Evidence from Duff and Phelps special adviser Philip Duffy to the Grier case stated that he was told by Detective Chief Inspector Jim Robertson that the BBC documentary formed the "whole basis" of the failed fraud probe.

Legal papers seen by the Herald on Sunday spell out Mr Grier's concerns about the documentary.

They state: "The BBC documentary referred to did indeed make certain allegations about a number of persons. However, the documentary was based upon incomplete information, based upon a so-called 'expert' who did not understand the nature and content of the transaction and did not have the benefit of all relevant documentation."

He said information was given to the BBC by Gary Withey, the Collyer Bristow lawyer who advised Mr Whyte over the ill-fated takeover. Mr Withey who was one of those who faced fraud charges which were dropped, passed away at his home near Woking, Surrey in 2019.

He was instructed to act in the takeover talks, having initially met Whyte in mid-2010, and said he was told by Mr Whyte not to share information over the source of the cash to pay off Rangers' debt.

"He had an interest in deflecting attention from himself to others," Mr Grier's legal team state.

READ MORE: Key Rangers figure David Grier fails in £14m claim against prosecutors over failed fraud case

"He failed to provide to the BBC exculpatory information in particular an email dated April 8, 2011, from Withey [to Whyte] wherein he asked for clarification on what should be disclosed to the pursurer.

"That email clearly indicated that the pursuer should not be told 'anything' other than what is required to negotiate with the bank. "The information upon which the BBC documentary proceeded was not only incomplete, and biased, based upon information which was from an interested party, it was also easily contradicted had the police officers investigating taken simple steps to inquire."

Mr Grier's team added: "Reliance upon a BBC documentary is not a proper way of proceeding to form suspicion, when the primary information is readily available to the investigating officers."

HeraldScotland:

From the documentary: Mr Clark and Mr Grier did not show for an on-camera interview over the film's allegations.

Court documents show that Lord Tyre, in questioning damage to Mr Grier's reputation by prosecutors and the police supported by the Lord Advocate and the Chief Constable, said he did not accept that because the BBC broadcasts focused on alleged conflicts of interest of the administrators which did not concern the pursuer, that thethe allegations made against him that he had been aware of the true nature of the Ticketus deal caused little or no damage to Mr Grier.

"Such limited evidence as there is suggests that they may have had a significant effect before any prosecution had begun," the judge said.

"In these circumstances there is an unquantified, and on the material placed before me unquantifiable, gap in the evidence in relation to causation of [Mr Grier's] loss."

He added: "Had I found in the pursuer’s favour on the merits of his case against the Chief Constable and/or the Lord Advocate, I could not have pronounced decree for payment of a sum or sums arrived at on a sound evidential basis.

"Allowance would have had to be made for damage sustained by [Mr Grier] prior to the police action, and for such proportion, if any, of damage sustained thereafter as remained attributable to the pre-detention publicity as opposed to the police action and subsequent prosecution by the Crown."

Mr Grier is now seeking to use material uncovered in Mr Whitehouse and Mr Clark's damages cases to pursue a new fight over the Lord Tyre ruling.

Legal teams for Mr Whitehouse and Mr Clark had been supplied with papers which showed senior Crown Office lawyers speaking about the "need to nail the Duff & Phelps people".

They maintained that this is among the reasons that showed there was malice in the prosecution.

Lord Tyre in his judgement made no mention of the statement while stating he was "not persuaded" that there was an "improper motive".

But he accepted there was evidence of "unacceptable intimidatory and threatening behaviour" by DCI Robertson during interviews.

HeraldScotland: Craig Whyte

Mr Whyte's reign at Rangers ended as the business went into administration and then liquidation in February, 2012, leaving thousands of unsecured creditors out of pocket, including more than 6000 loyal fans who bought £7.7m worth of debenture seats at Ibrox.

Creditors also ranged from corporate giants such as Coca-Cola to a picture framer in Bearsden and a lady called Susan Thomson who ran a face-painting business and was owed £40.

Four months later, the company's business and assets were sold to the Sevco consortium fronted by former Rangers chief executive Charles Green (below) for £5.5 million.

A BBC spokesman said: “We stand by our journalism and if an action is pursued it will be robustly defended.”

 

HeraldScotland:

Court papers make reference to a taped conversation between Mr Grier and Mr Whyte on May 31 2012 which was published by the BBC and which contained the following exchange:
DG: You know we we we went to see counsel yesterday for a full sort of debrief of all the email correspondence
CW: Yeah
DG: Now the fact is that we probably did know what was going on with Ticketus
CW: Yeah
DG: But there’s no email traffic whatsoever
CW: [Undecipherable] that says that you did
DG: That says we did
CW: But we all know you
DG: Yeah
CW: You did
DG: Yeah yeah but there’s
CW: And f***ing hell no no
DG: But we were not involved in dealing with Ticketus directly
CW: Yeah so you knew you knew the structure of the deal but you were dealing with Lloyds and...
DG: Absolutely