The full allegations against Collyer Bristow and former partner Gary Withey relating to the firm’s advice on the takeover of Rangers FC were revealed at the High Court today (24 April).
In a explosive skeleton argument put before Mr Justice Arnold by South Square Chambers’ Mark Phillips QC, acting for the club’s administrators, Duff & Phelps, a series of damning accusations were revealed in full for the first time. Collyer Bristow stands accused of “deliberate deception” over client Craig Whyte’s doomed bid for the football club.
The administrators are suing Collyer Bristow and Whyte’s takeover vehicle the Rangers FC Group for at least £25m in damages. The firm is accused of conspiracy, breach of undertaking, negligence and breach of trust, with Withey – who acted as the club’s company secretary – complicit in the allegations.
Phillips told the court that there was no evidence anyone else at Collyer Bristow was involved, but that as Withey had authority to act for the firm, it was liable for the losses flowing from his “conspiracy”.
The court heard that Whyte’s majority-stake takeover offer in May 2011 pledged to pay off the cash-strapped club’s £18m debt to Lloyds Banking Group and invest £9.5m of “new money” into the club – £5m for players, £2.8m to HM Revenue & Customs and £1.7m for capital expenditure.
That offer persuaded then-director Paul Murray and the board not to launch an alternative £25m share issue to generate the money needed to stabilise Rangers. Instead, the court was told, they agreed to Whyte’s takeover, with Collyer Bristow acting for the group.
Administrators were called in in February 2012 and various parties – including HMRC, private equity firm Merchant Turnaround and the trustees of the Jerome Pension Fund – lobbied to reclaim their stake in Rangers.
As paperwork began to be exchanged between Collyer Bristow and the administrators, further questions were asked.
Documents provided to the court said: “Initially Mr Withey responded by stating that Collyer Bristow did not hold any money for the club. Then he changed his story and said that Collyer Bristow was holding only £260,544.14 for the club. On 22 February 2012, however, Biggart Bailie [representing the administrators in Scotland] received an email from Jeff Roberts of Collyer Bristow to inform them that Collyer Bristow was in fact holding £3.918,106.54. The situation then became even more peculiar. To use a colloquial expression, Mr Withey ‘did a runner’. From 24 February, he was absent from Collyer Bristow’s offices and on 2 March 2012 he resigned as a member of the firm. It was clear that something was seriously wrong.”
£3.6m was then transferred to the administrators’ English lawyers Taylor Wessing, so that a court hearing could decide how to divide it up between various claimants. But, the skeleton argument alleges, “things were not as they had seemed”.
“As a result of the joint administrators’ review of the documents provided to them by Collyer Bristow and others, they came to realise that things were not as they seemed, and that their initial understanding of the position had been based on a deliberate deception by [the Rangers FC] Group and Collyer Bristow.
“Most importantly, although group and Collyer Bristow has led the vendor and the board to believe that group had paid a sum in excess of £9.5m to Collyer Bristow, and that Collyer Bristow had been holding this sum in its client account for the club at the time of the takeover, it is now clear that this story was untrue,” the argument claims.
The court heard that instead, Whyte used the club’s own potential income from future season ticket sales to show that he had the money. However, Phillips said that money was spent on, amongst other things, paying Collyer Bristow for its legal advice on the takeover.
The allegations against Withey are substantial. He is being represented by Mayer Brown, but is not a named defendant in the case. He has been sent a list of questions by Taylor Wessing – instructed by the administrators – but is yet to respond. Withey is now a consultant at City boutique Segens Solicitors (11 April 2012).
According to Phillips, the case against the former Rangers company secretary is that he wrote letters to other firms confirming that Collyer Bristow had received the takeover money and was holding it in its private client account, when in fact the group “never paid these sums to Collyer Bristow” and the firm “was not, and never had been, holding them”.
Withey is also accused of forging Whyte’s signature on one of the letters claiming to have the funds stashed away.
Phillips added: “Mr Whyte and Mr Withey conspired together with intent to injure the club by unlawful means. The principal purpose or objective of the conspiracy was the acquisition by group of the majority stake.
“Mr Whyte and Mr Withey knew that the share issue and the takeover were mutually exclusive alternatives […] and the success of the conspiracy would therefore cause financial detriment to the club in the sum of £25m. […] The club will therefore incite the court to conclude that they intended to cause loss to the club or were recklessly indifferent.”
At today’s case management hearing, Phillips was trying to persuade Arnold J to agree to an expedited hearing as soon as July because the club is struggling to stay afloat. “Money is tight, time is short,” he argued. The hearing had already been put back so that today’s claims could be lodged with the High Court (17 April 2012).
Philips added: “It is extremely difficult to see what case Collyer Bristow can mount that the repeated statements of Gary Withey were anything but false. It is incontrovertible that these statements are untrue. I find it fanciful that it needs a great deal of investigation.”
But Philips’ motion for an expedited hearing was opposed by Cyril Kinsky QC of 3VB, instructed by Clyde & Co partner Richard Harrison for Collyer Bristow. Kinsky QC said the administrators’ conduct had created maximum expense and inconvenience for his clients.
The full hearing has been set for October this year.
Collyer Bristow business development director Paul Newhall said: “The details disclosed in court today were contained in the original particulars of the claim forms previously filed and we will be defending them vigorously.”
For Collyer Bristow: Clyde & Co partner Richard Harrison and senior associate Nicole McKinnon, instructing 3VB’s Cyril Kinsky QC and Matthew Hardwick.
For the administrators: Taylor Wessing restructuring partners Nick Moser and Neil Smyth, instructing South Square Chambers’ Mark Phillips QC, Daniel Bayfield and Stephen Robins.