Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_99.html
Cite as: [2021] ScotCS CSOH_99, 2022 SLT 9, 2021 GWD 35-464, [2021] CSOH 99

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OUTER HOUSE, COURT OF SESSION

[2021] CSOH 99

P115/17

OPINION OF LORD TYRE

In the Note by

JAMES BERNARD STEPHEN and MALCOLM COHEN as Joint Liquidators of RFC 2012 plc

Noters

for

Orders under paragraph 75 of Schedule B1 to the Insolvency Act 1986

Noters: McBrearty QC, T Young; Shepherd & Wedderburn LLP

Respondents: (David John Whitehouse and Paul John Clark): A Young QC, Paterson; CMS LLP

6 October 2021

Table of contents

Paragraph

Introduction

1-3

Events leading up to the appointment of administrators

4-8

The administration: a brief chronology

9-31

The duties of an administrator

32-37

The noters' contentions

38-42

Loss of a chance: the law

43-45

Assessment of witnesses

46-55

The noters' claim: (i) failure to manage costs during the administration

Introduction

Playing staff costs

57-73

Non-playing staff costs

74-83

Player sales

84-117

Assessment: were the respondents in breach of their duties to the company? 118-173

The noters' claim: (ii) failure to obtain best possible sale price

Introduction

173

Value of the Rangers brand

174-195

Heritable property

195-228

Shares under the control of Craig Whyte

229-237

Conclusion regarding the bidding process

237-239

Quantification of the noters' claim

240-252

Summary and disposal

253-255

Introduction

[1]

The noters are the liquidators of RFC 2012 plc ("the company"), whose former name

was The Rangers Football Club plc. They were appointed as joint interim liquidators of the

company on 31 October 2012 and as liquidators at a creditors' meeting on 4 December 2012.

The respondents were appointed as joint administrators of the company, pursuant to a notice

of intention to appoint administrators filed on 13 February 2012 by the directors of the

company. Their appointment took effect on 14 February 2012 and terminated on 31 October

2012 upon the noters' appointment as joint interim liquidators. The respondents have not yet

been discharged.

[2]

In this application under paragraph 75 of Schedule B1 to the Insolvency Act 1986, the

noters allege that the respondents were guilty of breaches of duties owed by them to the

company as joint administrators. They contend that as a consequence the company suffered

loss, injury and damage, and that the interests of the general body of creditors were not

served. The noters seek an order requiring the respondents to contribute a sum

of £47,690,410, together with interest and the expenses of these proceedings. The

respondents deny that they have committed any breach of duty or are liable to make any

contribution.

[3]

The application came before me for a proof before answer which, due to Covid 19

restrictions, was conducted remotely. I heard 16 days of factual evidence, the bulk of which

came from the respondents and senior members of their staff who conducted the

administration. Expert evidence was led on four matters, namely player sales and valuation,

brand valuation, heritable property valuation and general conduct of administration. In each

case the parties' respective experts gave their evidence concurrently, allowing them the

opportunity to comment on one another's oral evidence as it was given.

Events leading up to the appointment of administrators

[4]

In late 2010 and early 2011, Mr Craig Whyte, a businessman and owner of Liberty

Capital Limited, was in talks with the owners of the company, which owned and operated

the football club known as Rangers FC ("the club"), with a view to acquiring it. By a share

purchase agreement dated 6 May 2011 among Murray MHL Limited, Wavetower Limited

and Liberty Capital Limited, Murray MHL Limited agreed to sell an 85% shareholding in the

company to Wavetower Limited. The consideration for the shares was £1. Wavetower

Limited changed its name to The Rangers FC Group Limited ("RFCGL").

[5]

At the time of the acquisition of the company by Mr Whyte, Messrs Whitehouse and

Clark were partners in MCR, an independent restructuring practice, as was Mr David Grier.

Prior to the acquisition, MCR were engaged to advise Liberty Capital Ltd in relation to re-

financing and repayment of the existing debt to Lloyds Bank. The principal point of contact

was Mr Grier. Following upon Mr Whyte's acquisition of the company, MCR entered into a

further agreement with Liberty Capital Ltd to provide services including (1) ongoing

consultancy advice including discussions with the company's finance team on the

monitoring of cash; (2) development of a high level post-acquisition strategy focusing on

operational and financial elements; and (3) liaison with HM Revenue & Customs ("HMRC")

in respect of a potential tax liability. Subject to the response of HMRC, MCR were to

provide outline recommendations and options available to Liberty Capital Ltd and the

company.

[6]

In November 2011, MCR were acquired by Duff & Phelps LLC ("D&P").

Messrs Whitehouse, Clark and Grier became partners in D&P. On 30 November 2011, D&P,

again via Mr Grier, sent an engagement letter to Mr Whyte undertaking to provide the

following services:

"1.

Consider and evaluate potential solvent and insolvent exit strategies and to

assist management in meeting their fiduciary duties and obligations when running a

company with particular attention being paid to any proposed restructuring on a

solvent or insolvent basis;

To assist the Company in discussions with Grant Thornton in relation to

outstanding audit requirements;

Working alongside the Company's tax advisors to assist the Company in

consultation with HMRC;

Review at a high level the Company's short term cash flow forecast, which

had been prepared to identify the working capital requirements of the Company;

Provide ad hoc advice as requested by the directors of the Company."

Although Mr Grier was the principal point of contact for Mr Whyte at D&P, Mr Clark and

Mr Whitehouse became more involved in the work towards the end of 2011 as it became

clear that there was a risk of the company becoming insolvent.

[7]

One of the major issues for the company at this time was its tax liabilities. The

company had outstanding two potential tax liabilities which came to be known as the big tax

case (concerning the past use of employee benefit trusts as a method of paying players and

others without incurring liabilities to PAYE and NIC) and the small tax case (concerning an

amount of unpaid VAT). In addition, the company was incurring further liabilities as a

consequence of non-payment of taxes as they fell due. An attempt was made during the

January 2012 transfer window to sell players to realise some funds that could be applied to

reduce those liabilities, but in the event only one player (Nikica Jelavic) was sold for a

substantial fee, and payment of most of that fee was deferred.

[8]

By the end of January 2012 it appeared to be very likely that the company was

heading towards administration. D&P were one of the firms being considered by Mr Whyte

for appointment as administrators, although HMRC were also now intending to place the

company in administration, using a different firm. D&P began to assemble a team in

anticipation of receiving appointment. On 10 February 2012, a time to pay proposal that had

been put by the directors to HMRC was rejected. On 14 February 2012, after discussion

between the directors and HMRC, the respondents were appointed as joint administrators.

The administration: a brief chronology

[9]

At this point it is convenient to explain the respective roles of the members of the

D&P staff who, in addition to the respondents themselves, carried out significant work on

the administration. All dates in the following chronology, and in the remainder of this

opinion, are in 2012 unless otherwise stated.

Simon Shipperlee was engaged in the administration from the outset,

reporting directly to the respondents. He was responsible for the football

aspects of trading the company in administration, including liaising with the

football authorities, taking any necessary regulatory steps, and leading

discussions with the players and coaching staff. He was based at the club's

Ibrox Stadium in Glasgow during the administration and acted as a point of

contact for the supporters' groups.

Peter Hart shared responsibility for the day to day running of the business

with Mr Shipperlee. This included responsibility for trading, cash flow and

funding, public relations, match day operations, and dealing with the club's

website communications and its fans. Mr Hart's responsibilities included

decision-making in relation to redundancies among non-playing staff.

Sarah Bell joined the team in Glasgow about a week after the beginning of the

administration. She managed the rest of the team, dealing with any urgent

matters that the respondents themselves did not have capacity to cover. She

dealt with a variety of different matters, including overseeing litigation

against Collyer Bristow LLP for the return of money held in their client

account, and a further, larger litigation against Collyer Bristow in respect of

alleged breaches of trust and duty and alleged conspiracy whilst acting as

advisors to the company. She had a high level role in formulating the

administrators' proposals including the proposal for a creditors' voluntary

arrangement ("CVA"). She too had a role in overseeing the company's cash

flow.

James Saunders joined the team about two weeks after the beginning of

administration, and remained a member of the team until 4 May when he took

a period of extended leave before returning on 31 May. He was primarily

involved, along with Mrs Bell, with the sale aspects of the administration.

Charles Walder was a more junior member of the administration staff,

working together with Mrs Bell and Mr Saunders on the sale process.

[10]

The administration team began by holding meetings with players, supporters'

groups, representatives of the Scottish Premier League ("SPL"), and the club manager, Ally

McCoist. One of the first matters that required to be attended to was whether an outstanding

application to the SPL to approve the signing of a player, Daniel Cousin, should be

maintained. The respondents decided that it should, but on 17 February the application was

refused by the SPL Board. Another matter that came to the administrator's attention at an

early stage was that the Scottish Football Association ("SFA") had begun a disciplinary

investigation into Mr Whyte's status as a "fit and proper person" and that, in view of the

company's entry into administration, the SFA Board had decided to establish an independent

committee to carry out the investigation.

[11]

The respondents' view at the outset of the administration was that the best course of

action to pursue was the sale of the company as a going concern, that being first in the

hierarchy of statutory objectives for administrators. An Information Memorandum for

prospective purchasers was prepared by Messrs Saunders and Walder, supervised by

Mrs Bell, and released on 19 February to interested parties who were willing to sign a non-

disclosure agreement. On the following day, the respondents instructed Lambert Smith

Hampton ("LSH") to provide a valuation report in respect of Ibrox Stadium and the Albion

Car Park, and in respect of Murray Park, the company's training ground and youth academy

located at Milngavie.

[12]

During the remainder of February, the respondents and their staff assessed the

company's cash flow situation. At the outset of the administration the company had

around £3,375,000 in its bank account. A short-term cash flow forecast produced on

23 February indicated that trading the company to the end of the 2011-12 SPL season would

result in a cash shortfall of £2,435,000, assuming that a cost reduction programme was

implemented in the football part of its business. The respondents considered means of

addressing the anticipated shortfall. Two senior executives were made redundant with effect

from 29 February. A decision was made at an early stage to meet the full staff payroll for

February.

[13]

The respondents then began negotiations in relation to proposed player

redundancies. Mr McCoist provided a list of eight players (out of a playing staff of 67) for

possible redundancy. The respondents regarded this as insufficient to address the cash

shortfall. The chief executive of the Professional Footballers Association Scotland ("PFAS"),

Fraser Wishart, suggested that savings could be made by means of wage deferrals rather

than redundancies. The respondents' view was that wage reductions, as opposed to

deferrals, were necessary. Deferrals would decrease the value of the company to a

purchaser, and in any event PAYE and NIC would continue to be payable on the full wage

bill. The respondents resolved to announce redundancies on 1 March but negotiations

continued for a further week thereafter.

[14]

On 9 March agreement was reached that the players would accept reductions in their

salaries of between 25% and 75% for the three month period to 31 May. Mr McCoist agreed

to waive his salary until the end of the season. The aggregate effect was a reduction in wage

costs of around £1 million. There were, however, two significant conditions attached to the

players' wage reduction agreement. Firstly, some of the more valuable players insisted that

new, lower minimum buy out clauses, which fixed the amount for which the company was

bound to sell if an offer acceptable to the player was made by another club, were included in

their contracts. Secondly, the players insisted that there would be no significant

redundancies among the playing and non-playing staff. In the event, only two players (at

their own request) and a small number of non-playing staff were made redundant. One

player was sold to a South Korean club.

[15]

In the meantime, on 24 February, representatives of the respondents had a meeting

with HMRC, following which Mr Clark reported HMRC's view as being that liquidation

looked inevitable. On 1 March, court proceedings against Collyer Bristow were commenced

in England for the release of company funds.

[16]

The report by LSH on valuation of the company's heritable property was received on

14 March. The value of Ibrox Stadium, including the Albion Car Park, on a fully operational

going concern basis, was stated to be £32 million. The value of Murray Park on the basis of

continuing use as a training facility and youth academy was stated at £6,150,000. The values

of Ibrox Stadium (including the Albion Car Park) and of Murray Park, on the basis of

discontinuance of the existing uses and disposal for development were stated to

be £3,400,000 and £4,420,000 respectively. LSH observed that a period of 12 months would

be realistic to achieve these values.

[17]

The administrators had now identified an issue that was causing concern and

uncertainty among potential purchasers of the company. In May 2011, Mr Whyte had

committed the club to a deal with Ticketus, under which Ticketus received the income from

season ticket sales for the current season and following two seasons. The respondents

estimated that this income flow represented 60% of the cash flow of the company for those

seasons. Ticketus contended that this deal could not be undone by the administrators; if that

was correct, it would have a significant impact on future income and accordingly on the

value of the company. The respondents decided to make an urgent application to the court

for directions.

[18]

By 15 March the respondents had received a number of expressions of interest from

persons whom they judged to be credible potential purchasers. The D&P team prepared a

Memorandum of Offer: essentially a template to be used when making an offer for the

company. Indicative offers were invited, to be submitted by close of business on 16 March,

on one of two bases, namely (a) a CVA, or (b) a sale of the business and assets of the

company to a new legal entity. On 16 March, the following indicative offers were received:

An offer of £25 million, based on a business and assets sale, from an American

consortium called SCARF, which included a Mr Bill Miller. This offer was on

the basis that no future revenue would be payable to Ticketus;

An offer of £10 million, based on a CVA, from a consortium calling themselves

the Blue Knights. This offer assumed that the Ticketus agreements would

continue with much of the future season ticket revenue not being available to

the club;

An offer of £5 million, based on a CVA, from Mr Brian Kennedy, a sports

business investor.

[19]

On 23 March, a hearing took place in the application for directions. Lord Hodge gave

his decision, which was that as the agreement with Ticketus created contractual rights only,

the administrators could repudiate it if they considered that it was in the best interests of all

creditors to do so. The following day, a further indicative offer was received. This offer,

from a Singapore consortium, was of £10 million, based on a CVA and on the assumption

that no future revenue would be paid to Ticketus.

[20]

For those bidders whose offers proceeded on the basis of a CVA, there was a need, in

order to gain control of the business and assets of the club, to acquire the company's shares,

most of which were owned by RFCGL and under the ultimate control of Mr Whyte. (That

issue did not, of course, arise in relation to the purchase of the company's business and assets

by a Newco.) Mr Whyte had given no undertaking to transfer the shares, and the

respondents regarded it as a matter for the respective potential purchasers to enter into

negotiations with him, albeit that they would provide whatever assistance they could. On

26 March, however, the respondents sought legal advice from Taylor Wessing, solicitors in

London, as to how they might procure the transfer of the shares to a successful bidder.

Taylor Wessing wrote to Mr Whyte's solicitors inviting them to confirm that in the event of a

sale proceeding by way of a CVA he would provide the necessary stock transfers. No

immediate substantive response was received.

[21]

On 24 March, the respondents received an offer of £1 million from West Bromwich

Albion FC ("WBA") for Steven Naismith, who was recognised to be one of the club's most

valuable players. At that time Mr Naismith was recovering from an injury and not expected

to play for the remainder of the season. As the transfer window was not open in either

Scotland or England, the offer was made on the basis that although WBA would make

immediate payment of the transfer fee and assume responsibility for payment of the player's

wages, his registration as their player would not take place until 1 July. The offer was

rejected by the respondents as too low, as were increased offers of £1,250,000 on 29 March

and £1,500,000 on 7 April.

[22]

On 3 April an expression of interest in the purchase of Murray Park was received

from an agent for a Mr Stephen McKenna, stating that Mr McKenna had agreed terms with a

well-known residential developer. Mrs Bell considered that although the overall aim was to

achieve a sale as a going concern, the expression of interest was worth pursuing, and she

instructed Mr Walder to follow up the contact. Mr McKenna subsequently expressed an

interest in purchasing the business and assets of the company, and not merely the heritable

property.

[23]

In the meantime, the respondents had fixed 4 April as the date for "best and final

bids" from parties interested in a going concern purchase. Four offers were received:

An offer of £10 million from Bill Miller, based on a trade sale and conditional

on the company's SPL share being transferred;

An offer of £10 million from the Blue Knights, based on a CVA but with a

potential trade sale if that was unsuccessful;

An offer of £12 million from the Singapore consortium, with potential

additional deferred consideration based on qualification for European

competition, based on a CVA but with willingness to consider a trade sale;

An offer of 30 million from a German consortium, based on a CVA. This

consortium never provided proof of funding and were not regarded by the

respondents as likely to be credible bidders.

[24]

The respondents intended to announce the identity of a preferred bidder during the

week commencing 9 April. However, over the weekend of 6-9 April (which was Easter

weekend), the SPL announced that they would be proposing new Financial Fair Play

regulations at a meeting on 30 April that would significantly increase the sanctions imposed

upon insolvent clubs. The interested parties were informed.

[25]

On 5 April, Mr Wishart sent an email to Mr Whitehouse and Mr Clark noting that the

players had been advised of their right in terms of TUPE regulations, in the event of a

transfer of the company's business and assets to a new company, to decide not to transfer to

it, but rather "to remain with the oldco and take what that brings". Mr Wishart observed

that the players would "make an informed decision as to whether to transfer to a newco or

not based upon the new owner's plans for the future of the club".

[26]

On 11 April, Mr Whyte's agent emailed the respondents with his terms for the

transfer of a 51% holding for no cost "provided all property assets remain within Rangers

Football Club plc". The terms were not acceptable to the respondents. On 13 April a final

offer for Steven Naismith was received from WBA, in the sum of £1,700,000. As this was less

than the sum of £2 million in his buy-out clause (as re-negotiated in March), the offer was not

accepted.

[27]

In the course of the next four weeks, the various offers that had been made for the

company or for its business and assets were amended and/or withdrawn. On 11 April,

the Blue Knights offered to pay £500,000 for an exclusivity period of 21 days but this offer

was withdrawn the following day. On 18 April, Mr Miller offered £10 million, including

a £500,000 exclusivity payment, for a business and assets sale but this was conditional on the

SPL resolutions being voted down at the meeting on 30 April. On 20 April the Singapore

consortium issued a press release stating that they were withdrawing their bid. On 28 April,

Brian Kennedy, now supported by the Blue Knights, made an offer of £5.5 million based on a

CVA. This however included receipt of £3.8 million of "football debts" due to the company

and accordingly had a net value of only £1.7 million. On 2 May, Mr Miller made a revised

and final offer of £8,500,000, of which £3,000,000 would be deferred until the second

anniversary of completion. This offer was conditional upon, inter alia, transfer of the SPL

share.

[28]

One reason for the reduction of Mr Miller's bid was that on 23 April the SFA had

announced the result of its disciplinary proceedings, imposing a substantial fine and

prohibiting the signing of any players over the age of 18 for a period of 12 months. (The

respondents' appeal against this decision was refused at an SFA appellate tribunal hearing

on 14 May. However, on 29 May that decision was the subject of a successful application for

judicial review: see [2012] CSOH 95.)

[29]

On 1 May the respondents received a first expression of interest from Mr Charles

Green, who formed two companies (referred to here collectively as "Sevco") as vehicles for

purchase of the company's business and assets. On 3 May, Mr Miller was announced as the

preferred bidder. The following day, Sevco submitted an offer of £8,250,000 based on a CVA

structure and an additional £4 million dependent on qualification for European football

competition, together with a fall-back option for a sale of the business and assets

for £5,500,000. On the evening of the same day (4 May), the respondents received an email

from Mr Miller's solicitor intimating withdrawal of his interest. A press release issued by

Mr Miller on 8 May referred to preliminary information and analysis having been "more

optimistic than reality", and also to "hearing the message from Rangers supporters and fans

loud and clear (`Yank go home!')". On 12 May, Brian Kennedy and the Blue Knights

withdrew their bid, leaving Mr Green and Sevco as the only remaining realistic bidder. Their

offer was accepted on 12 May.

[30]

On 29 May the respondents issued their formal proposal for a CVA to the company's

creditors. The proposal was that Sevco would make £8,250,000 available for creditors, as a

loan to the Company, and pay a non-refundable exclusivity fee of £250,000. After the costs of

the administration, there would be a fund of around £5 million for the creditors, in addition

to other assets as outlined in the proposal. A meeting of creditors was fixed for 14 June. On

8 June, HMRC gave notice to the respondents that they would vote against a CVA. As

HMRC were by far the company's largest creditor, this meant that the CVA proposal could

not succeed. At the meeting on 14 June, HMRC duly voted against the proposal. The

business and assets of the company were, accordingly, sold to Sevco for £5,500,000 in terms

of the 12 May agreement. Sevco Scotland Limited subsequently changed its name to The

Rangers Football Club Limited.

[31]

After the sale of the business and assets, a number of players declined to transfer to

Sevco and instead registered with other clubs, in England and elsewhere. Sevco sought to

argue that it retained the players' registrations and was entitled to transfer fees. Certain

clubs made payments to Sevco to avoid litigation, including Southampton (for Steven Davis)

and Coventry (for John Fleck). No transfer fee for any of the players was payable to the

company. On 4 July 2012, the SPL member clubs voted to refuse to allow Rangers' SPL share

to be transferred to Sevco. The club was accepted instead into the third division of the

Scottish Football League for the season 2012-13.

The duties of an administrator

[32]

Paragraph 3 of Schedule B1 to the Insolvency Act 1986 states:

"(1)

The administrator of a company must perform his functions with the objective

of--

(a)

rescuing the company as a going concern, or

achieving a better result for the company's creditors as a whole than

would be likely if the company were wound up (without first being in

administration), or

(c)

realising property in order to make a distribution to one or more

secured or preferential creditors.

(2)

Subject to sub-paragraph (4), the administrator of a company must perform

his functions in the interests of the company's creditors as a whole.

(3)

The administrator must perform his functions with the objective specified in

sub-paragraph (1)(a) unless he thinks either--

(a)

that it is not reasonably practicable to achieve that objective, or

(b)

that the objective specified in sub-paragraph (1)(b) would achieve a

better result for the company's creditors as a whole.

(4)

The administrator may perform his functions with the objective specified in

sub-paragraph (1)(c) only if--

(a)

he thinks that it is not reasonably practicable to achieve either of the

objectives specified in sub-paragraph (1)(a) and (b), and

(b)

he does not unnecessarily harm the interests of the creditors of the

company as a whole."

[33]

The hierarchical structure of paragraph 3 is well recognised. So too is the discretion

vested in the administrator when making the decisions required by subparagraphs (3)

and (4). As Snowden J observed in Davey v Money [2018] Bus LR 1903; [2018] EWHC 766

(Ch) at paragraph 255:

"Given the range of interests to be addressed under paragraph 3 of Schedule B1, the

use of the expression that the administrator `thinks' rather than, for example,

`reasonably believes' is a clear indication that Parliament intended a degree of

latitude to be given to an administrator in deciding upon the objective to be pursued,

and that he is not lightly to be second-guessed by the court with the benefit of

hindsight ..."

Snowden J went on, however, to note that the same degree of deference does not extend to

the methods adopted by the administrator to pursue his chosen course: the stricture in

subparagraph (4)(b) not to unnecessarily harm the interests of the creditors of the company

as a whole is subject to a more objective standard of review.

[34]

In Re One Blackfriars Ltd [2021] EWHC 684 (Ch) at paragraph 200, HH Judge Kimball

QC helpfully described the process prescribed by paragraph 3 as follows:

"It is clear from the terms of paragraph 3 ... that one of the main duties of an

administrator is to form a judgment as to which of the statutory objectives he or she is

going to pursue. This is a dynamic and iterative process which involves the exercise

of commercial judgment. It begins before appointment and continues after

appointment. An initial view will almost always be formed and pursued in the early

stages of any administration. This will then be followed by a firm decision. This

decision is required to be taken at the latest after the expiry of eight weeks from the

day the company entered into administration and must be expressed in a formal

statement to creditors as to which statutory objective is being pursued. This choice

must, however, be kept under review because the appropriate objective may change

in the course of the administration (as circumstances change or further information

emerges)."

[35]

The administrator owes a duty to the company to carry out his duties with the

standard of care reasonably to be expected of an ordinarily skilled and careful insolvency

practitioner (see eg Re Charnley Davies Ltd (No 2) [1990] BCC 605, Millett J at 618; Davey v

Money above, Snowden J at paragraphs 383-4). Where, therefore, the administrator is

carrying out functions which require professional expertise, the standard in Hunter v Hanley

1955 SC 200 is applicable in determining whether he has committed a breach of duty. There

may, however, be aspects of the administration which do not require the exercise by the

administrator of any specialist skill, and in that situation the standard to be applied is not the

Hunter v Hanley standard but merely the exercise of reasonable care. But as Lord Drummond

Young observed in a different context in French v Strathclyde Fire Board 2013 SLT 247 at

paragraph 41,

"... there is no sharp dividing line between these tests; there is rather a spectrum of

situations ranging from a case where the person responsible for safety has clear

professional or technical qualifications to cases where he has no particular

qualifications but is under an ordinary common law duty of care. The extent to

which specialist expertise must be brought to bear will vary according to the

circumstances of the particular case."

The same appears to me to apply to the variety of tasks that an administrator will require to

carry out in the course of a complex administration such as the one with which these

proceedings are concerned.

[36]

A particular aspect of the administrator's duty that is relevant to the present case is

the duty to take specialist advice on matters outwith the administrator's own expertise. The

administrator's duty in this respect is regarded as analogous to that of a trustee: see

Lightman & Moss, Law of Administrators and Receivers of Companies (6th ed, 2017) at

paragraph 12-037, and the authorities cited. As the authors note, the administrator must take

reasonable steps to acquire information relevant to his decisions, including, if appropriate,

taking relevant professional advice. If he seeks advice from apparently competent advisers

and follows the advice so obtained, he will not be in breach of his fiduciary duty for failure to

have regard to relevant matters if the advice given to him turns out to have been materially

wrong.

[37]

The power of the court to examine the conduct of an administrator is contained in

paragraph 75 of Schedule B1 which, so far as material, provides as follows:

"(1)

The court may examine the conduct of a person who--

(a)

is or purports to be the administrator of a company, or

(b)

has been or has purported to be the administrator of a company.

(2)

An examination under this paragraph may be held only on the application

of--

...

(c)

the liquidator of the company ...

(3)

An application under sub-paragraph (2) must allege that the administrator--

...

(c)

has breached a fiduciary or other duty in relation to the company...

...

(4)

On an examination under this paragraph into a person's conduct the court

may order him--

(a)

to repay, restore or account for money or property;

(b)

to pay interest;

(c)

to contribute a sum to the company's property by way of

compensation for breach of duty or misfeasance..."

The noters' contentions

[38]

As presented in submissions at the close of the proof, the noters' contentions, all of

which are denied by the respondents, fall into two broad chapters: (i) that the respondents

were in breach of their duty of care in relation to the company by failing properly to manage

the company's costs during the administration, and (ii) that they were in breach of duty by

failing to take reasonable care to obtain the best price possible in the circumstances for the

company's business as a whole or, at least, for its heritable property.

(i)

Failure to manage costs during the administration

[39]

The noters contend that the respondents had no coherent strategy for managing the

company's cost base, and that they failed to have regard to factors that ought to have

featured in their decision-making. More specifically, it is contended:

in relation to the playing staff, that the respondents failed to carry through

their initial strategy of making redundancies, and were persuaded instead by

the players and their representatives to make savings by way of temporary

wage reductions; that they failed to perform any analysis of the costs and

benefits of the courses open to them; that they gave no consideration to the

advantages of effecting a permanent reduction in the cost base; that they

failed to give proper consideration to realising value for creditors by sellin g

some or all of the company's most marketable players; and that they gave no

meaningful consideration to the risk and consequences of not achieving a

CVA;

alternatively, in relation to the playing staff, that the respondents ought by

about 5 April to have changed their strategy of retaining the squad more or

less intact and should have proceeded instead to attempt to sell players;

in relation to the non-playing staff, that the respondents gave no real thought

or analysis to the possibility of making significant redundancies;

that had the respondents engaged in these exercises, they would have been

able to make savings equivalent to those made by wage reductions from

redundancies alone;

that the respondents gave no consideration to, and took no advice on, the

possibility of transferring players within the UK for value outside the transfer

window, and in particular were in breach of duty in not accepting the offer of

£1.7 million made by WBA for Steven Naismith.

[40]

As regards quantification of loss, the noters contend, on the basis of their expert

evidence, that appropriate redundancies among players could have produced cost savings

of £1,253,852, and that appropriate redundancies among non-playing staff could have

produced savings of a further £955,623. In relation to the alleged failure to realise marketable

playing staff, it is accepted (with the exception of Steven Naismith) that this is properly

quantifiable on the basis of loss of a chance of selling some or all of a group of ten saleable

players whose aggregate value (according to the noters' expert evidence) was £19,700,000 or,

alternatively, in relation to six of the ten players whose contracts contained buy-out

clauses, £7,375,000, plus the unreduced value of the other four. As regards Steven Naismith,

the noters submit that there is a loss amounting to the £1,700,000 that was offered for him.

(ii)

Failure to obtain best possible sale price of the business and its assets

[41]

The noters contend:

that the respondents were in breach of duty in failing to take advice on the

value of the Rangers brand, despite being aware that it had value;

that they were in breach of duty in failing to consider and take advice on

appropriate strategies, such as sale and lease back, for realising the value of

the heritable property; and

that they failed to identify and address two serious difficulties with their

preferred strategy of pursuing a CVA, namely the preference for liquidation

expressed from the outset by HMRC, without whose support no CVA could

proceed, and the absence of any enforceable mechanism for obtaining the

company shares controlled by Mr Whyte.

[42]

The noters submit that, taking all of these matters individually and cumulatively, the

respondents lost control of the bidding process and left themselves in a position whereby

their ability to obtain the maximum value for the company's business, or for its individu al

assets, was compromised. The noters' quantification is based upon loss of a chance of

securing a total amount that was around £25 million more than the net figure paid by Sevco

for the company's business and assets, either through an increased bid that took account of

and included the value of the brand and the heritable property, or by realising the value of

the heritable property separately and disposing of the remaining assets as a going concern,

for an amount equal or close to the sum paid by Sevco.

Loss of a chance: the law

[43]

As can be seen from the above summary of the noters' contentions, some parts of

their claim are presented on the basis of the loss of a chance. Parties were broadly in

agreement as regards the circumstances in which the law departs from the ordinary burden

on a pursuer to prove facts on the balance of probabilities by having recourse to the concept

of loss of opportunity or loss of a chance. The distinction was put thus by Lord Hoffmann in

Gregg v Scott [2005] 2 AC 176 at paragraph 83:

"... (T)he law distinguishes between cases in which the outcome depends upon what

the claimant himself ... or someone for whom the defendant is responsible ... would

have done, and cases in which it depends upon what some third party would have

done. In the first class of cases the claimant must prove on a balance of probability

that he or the defendant would have acted so as to produce a favourable outcome. In

the latter class, he may recover for loss of the chance that the third party would have

so acted ..."

[44]

This was recently affirmed in Perry v Raleys [2020] AC 352, where Lord Briggs, with

the concurrence of the other members of the Supreme Court, observed (paragraphs 20

and 21):

"For present purposes the courts have developed a clear and common -sense dividing

line between those matters which the client must prove, and those which may better

be assessed upon the basis of the evaluation of a lost chance. To the extent (if at all)

that the question whether the client would have been better off depends upon what

the client would have done upon receipt of competent advice, this must be proved by

the claimant upon the balance of probabilities. To the extent that the supposed

beneficial outcome depends upon what others would have done, this depends upon a

loss of chance evaluation.

This sensible, fair and practicable dividing line was laid down by the Court of Appeal

in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 "

[45]

As regards evaluation of the chance, Stuart Smith LJ expressed the following view in

the Allied Maples Group case at page 1614:

"... (I)n my judgment, the plaintiff must prove as a matter of causation that he has a

real or substantial chance as opposed to a speculative one. If he succeeds in doing so,

the evaluation of the chance is part of the assessment of the quantum of damage, the

range lying somewhere between something that just qualifies as real or substantial on

the one hand and near certainty on the other. I do not think that it is helpful to seek

to lay down in percentage terms what the lower and upper ends of the bracket should

be."

I proceed therefore on the basis that if the court is satisfied that the chance founded upon by

the pursuer is more than speculative but less than certain, it must then make an assessment

of the likelihood or otherwise of the third party having acted in the way that the pursuer

claims would have resulted in him being better off.

Assessment of witnesses

[46]

Before beginning my examination of each of the two chapters of the noters'

contentions, I require to set out briefly my assessment of the reliability and credibility of the

factual witnesses, and my assessment of the admissibility of, and weight to be attached to,

the expert evidence.

Factual witnesses

[47]

As regards the respondents themselves, I found Mr Clark to be a credible and reliable

witness who did his best to answer questions fairly and to assist the court. On behalf of the

noters it was submitted that he was unreliable and, in respect of one peripheral matter (the

attempted signing of Daniel Cousin) not credible. I reject those criticisms. Although

Mr Clark's answers sometimes strayed beyond the scope of the questions asked, my

impression was that this was due to him attempting to answer the question fully rather than

attempting to avoid it. Although his explanation of the reasons for attempting to sign Cousin

does not find exact support in the contemporaneous documents, I am content to accept it.

[48]

As regards Mr Whitehouse, I am satisfied that he was doing his best to assist the court

and that he was generally credible. At times, however, it was far from clear whether he was

providing his recollection of what actually happened or providing an assessment, with the

benefit of hindsight, of what would or would not have been an appropriate course of action.

On occasions his explanation of why something was done was demonstrably inaccurate, for

example in relation to the decision not to sell Steven Naismith. It was also apparent from his

evidence that he was less directly involved in detailed decision -making than Mr Clark. I

have therefore placed greater weight on the evidence of Mr Clark, and preferred it in the case

of any discrepancies.

[49]

With the exception of Mr Walder, I found all of the members of the respondents' staff

to be credible and reliable witnesses. I formed the impression that Mr Walder, who gave his

evidence from his current place of work in the United States, was not attempting to answer

the questions put to him fully and truthfully, preferring to shelter behind assertions of

remembering nothing, and to avoid direct answers. Some of his responses, such as claiming

not to know what exactly a CVA was, were clearly not credible. I find it difficult to

understand why Mr Walder regarded it as appropriate to be so uncooperative, having

previously provided a detailed written witness statement to the respondents' agents. In the

circumstances I attach no weight to his written or oral evidence except where it is supported

by the terms of a contemporaneous document. The noters also criticised Mr Hart as being

unreliable, bordering on incredible. This was largely due to his reaction to being shown

emails sent by him during the administration period which appeared to contain frank and

trenchantly expressed criticisms of his then bosses, the respondents (by whom he is no longer

employed). I found Mr Hart's attempts to explain away his remarks in these emails

unconvincing. I do not, however, regard this as a reason not to treat his evidence in relation

to events occurring during the administration period as unreliable or incredible.

[50]

As regards all of the other factual witnesses led on behalf of one or other of the

parties, I found them to be credible and, as regards evidence referred to in this opinion,

generally reliable.

Expert witnesses

[51]

I am satisfied that all of the expert witnesses were suitably qualified to express

opinions on the matters upon which they respectively prepared reports and gave oral

evidence to the court. It is necessary, however, to address certain issues in relation to the

evidence of Mr David Buchler, who gave opinion evidence on behalf of the respondents on

the conduct of the administration generally.

[52]

Mr Buchler is a chartered accountant and licensed insolvency practitioner, founder

and senior partner of Buchler Phillips, with some 40 years of experience (over

1,000 assignments) in turnaround, restructuring and insolvency. He has been an adviser to a

number of different football clubs and was receiver or admin istrator of Oxford United FC,

Millwall FC, Bradford City FC and Swindon Town FC. He was the owner and chairman of

Barnet FC for three years in the mid-1990s and is a former chief executive and vice chairman

(on two occasions) of Tottenham Hotspur FC.

[53]

In his supplementary report (though not in his principal report), Mr Buchler disclosed

"for completeness" that Mr Whitehouse and Mr Clark were formerly partners/colleagues in

his firm, Buchler Phillips, having joined the firm to set up its Manchester office in the late

1990s. He stated that he had not had any business contact with either of them for over

20 years prior to his instruction in this litigation. In the course of cross-examination, there

emerged somewhat closer connections between Mr Buchler and the respondents. He had in

the past taken a number of joint appointments with one or other of them. He and

Mr Whitehouse had worked together in the administration of Bradford City FC in 2002.

They had remained in partnership until less than 20 years ago.

[54]

On behalf of the noters it was accepted that Mr Buchler's past connections with

Mr Whitehouse and Mr Clark did not of itself render his evidence inadmissible. However, it

was submitted that for three reasons Mr Buchler's evidence should be excluded as

inadmissible or, in any event, treated as carrying little weight. Firstly, his failure fully to

disclose his prior business relationship with the respondents cast doubt upon his

understanding of his duties as an expert witness. It raised questions about the extent to

which Mr Buchler was liable to be unduly and perhaps subconsciously favourable to the

respondents, as well as whether he had applied his mind to that issue to ensure that he was

not being influenced by his personal connections when reaching his opinion. Secondly,

much of his evidence consisted of ipse dixit statements that he did not think that he would

have done what was being suggested by the noters, or that he would have done what the

respondents did. Such statements carried no evidential value. Thirdly, his opinions were to

some extent based upon a flawed factual basis. For example, his opinion in relation to the

application of a "football creditor" rule in Scotland proceeded upon an unfounded

assumption that this had been regarded as an important factor by the respondents at the time

of the administration. His view that a sale of Steven Naismith would have made the club less

attractive to prospective purchasers was based not on evidence but on discussion with

colleagues. He was sometimes unable to distinguish between what he assumed the

respondents would have thought or done and what he understood them to have actually

thought or done.

[55]

In my judgment there is some substance to the noters' criticisms, and although I do

not hold that Mr Buchler's evidence must, on the basis of the principles enunciated in

Kennedy v Cordia 2016 SC (UKSC) 59, be treated as inadmissible, I consider that I must

approach his evidence with caution. Senior counsel for the respondents attributed the

absence from Mr Buchler's principal report of any reference to his connections with the

respondents to administrative failure on the part of the respondents' advisers, in

circumstances in which Mr Buchler was engaged at a late stage of the case after the expert

previously instructed had unfortunately died. In my view that explanation fails to have

proper regard to the duty incumbent upon Mr Buchler himself to disclose prior connections.

I accept, as did the noters, that Mr Buchler did not intentionally tailor his evidence to favour

the respondents. I cannot however entirely exclude the possibility that he was

subconsciously sympathetic to their arguments. This is in part due to the tone of his written

reports in which he frequently refers to his understanding or awaren ess in relation to matters

favourable to the respondents (such as the likely attitude of HMRC), which leads to what

appears to me to be an unduly uncritical approval of the respondents' decision to pursue,

and continue to pursue, only the strategy of sale of the company or its business as a whole. I

also agree that some of Mr Buchler's evidence is open to challenge as consisting of no more

than ipse dixit statements. In Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [1979] Ch 384,

Oliver J observed at page 402:

"Clearly, if there is some practice in a profession, some accepted standard of conduct

which is laid down by a professional institute or sanctioned by common usage,

evidence of that can and ought to be received. But evidence which really amounts to

no more than an expression of opinion by a particular practitioner of what he thinks

that he would have done had he been placed, hypothetically and without the benefit

of hindsight, in the position of the defendants is of little assistance to the court ..."

Much of Mr Buchler's evidence consisted of exactly what is described by Oliver J. In the

discussion that follows, I have borne these reservations as to the weight to be attached to

Mr Buchler's evidence in mind.

The noters' claim: (i) failure to manage costs during the administration

Introduction

[56]

The noters' case that the respondents failed properly to manage costs during the

administration had three strands: failure to make redundancies among playing staff, failure

to make redundancies among non-playing staff, and failure to sell marketable players. It was

a matter of agreement between the relevant expert witnesses, and between the parties, that

these issues were interlinked and could not be looked at in isolation. I shall summarise the

evidence in relation to each of them before providing my assessment.

Playing staff costs

The joint administrators' approach

[57]

At the outset of the administration, the respondents' intended strategy was to make

redundancies among the playing staff. As already noted, Mr McCoist was asked to provide a

list of suggested redundancies, and he provided a list of eight players wh o could either be

sold (Nicolae Goian, Alejandro Bedoya, Matthew McKay), released from contract

(Sasa Papac, Lee McCulloch, Neil Alexander, Kirk Broadfoot) or have their loan deal

cancelled (Kyle Bartley). This proposal was considered by the respondents to be insufficient

to meet the anticipated cash flow deficit. At a meeting on 22 February the respondents

suggested 11 first team squad sales/redundancies (the above eight plus Carlos Bocanegra,

David Healy and Grant Adam), together with 50% wage reductions for other players and

possibly other cuts to youth and coaching staff. Mr Shipperlee prepared sensitivity analyses

showing the effect of differing numbers of redundancies combined with wage reductions.

Mr Wishart argued at meetings for the savings to be achieved by wage deferrals rather than

by redundancies or pay cuts.

[58]

In the course of negotiations during the latter part of February and the first week in

March with the players and the players' union, the respondents' strategy evolved. The

respondents were persuaded that any decision in relation to redundancies should be delayed

for a few days because some of the players affected were away from Scotland for

international matches. By 29 February, the respondents were still expecting to make

redundancies. Meetings were arranged for Thursday 1 March with the intention that they

would result in further meetings with players who were to be made redundant, and then

with those who would be asked to agree to a wage reduction. Instead, Mr McCoist made

further proposals including 75% wage reductions by players. Details of the meetings were

leaked to the media, and by the evening representatives of some of the players contacted the

respondents to state that they wished to conduct individual negotiations. On Friday

2 March, Mr Clark told Mr McCoist and Mr Wishart that cuts would be made immediately if

the first team did not agree to take no pay for the first week of March. By now, however, it

had become too late to make cuts in advance of the club's match the following day.

[59]

Over the weekend, Mr Wishart emailed Mr Clark stating inter alia that he had been

approached by a number of prospective bidders who were concerned at the cost of

rebuilding the squad if redundancies were made, and that any potential takeover might be

put in jeopardy. Mr Wishart was invited to clarify the identity of those who had approached

him but declined to do so. Mr Clark was also contacted by Mr McCoist who stated that he

had not obtained the players' agreement to either a week of no pay or 75% wage reductions.

[60]

On Monday 5 March, the negotiations continued. No agreement was reached, and

the respondents anticipated making redundancies the following day among the highest

earners. On 6 March, meetings took place between Mr Clark, Mr Shipperlee and the

representatives of PFAS, by the end of which an agreement in principle was reached with

PFAS that all of the first team squad would accept pay cuts to the end of the season of

between 25% and 75%, with the higher cuts to be taken by the majority of the first team

players. The players had voted and agreed to the cuts almost unanimously. After that vote

had taken place, however, and after some players and the PFAS representatives had left,

certain players and their agents insisted on additional contract variations, namely (1) that a

proportion of any further transfer price should be paid to them; and (2) that they should be

entitled to leave the club at a value lower than their perceived transfer value. The

respondents anticipated that if it was not possible to reach a suitable resolution of these

additional issues, it would be necessary to make a substantial number of redundancies the

following morning.

[61]

On 9 March, an agreement in principle was finally reached. Wages of members of the

playing squad would be reduced by between 25% and 75% for the period from 1 March to

31 May. In return, it was agreed that (i) players agreeing to the contract variations would not

be made redundant during this period; (ii) should all playing staff agree to the wage

reduction, no playing staff would be made compulsorily redundant, and there would be no

significant numbers of compulsory redundancies among non-playing staff; (iii) the company

would be immediately obliged to grant free transfers to players if Craig Whyte regained

effective day to day control of its management; (iv) the salary reductions were to cease upon

the acquisition of the company by a third party; (v) certain players would be entitled to be

paid a proportion of any future transfer fee received by them; and (vi) minimum release, ie

buy out, clauses would be included in the contracts of certain players.

[62]

In the course of his evidence, Mr Clark identified the reasons for the change in the

respondents' strategy in relation to making compulsory redundancies as being that there

would have been difficulties in transferring players while the transfer window was closed,

and that claims by players for damages for involuntary redundancies might have constituted

"football debts" that could have discouraged potential purchasers. The negotiated

settlement of wage reductions (and not merely deferrals) had produced, in his view, a r esult

in terms of cash flow that was similar to what could have been achieved by compulsory

redundancies.

Expert evidence

Expert evidence for the noters

[63]

Expert evidence on the conduct of the administration generally, including this

chapter, was given on behalf of the noters by Mr Gordon Christie, chartered accountant and

licensed insolvency practitioner, founder and director of Christie Griffith Corporate Limited,

a practice specialising in litigation support and working with businesses in financial distress.

He has been involved in over 100 trading insolvencies including some that were large,

complex and high profile, and is familiar with the pressures of working under media

scrutiny and public and political pressure. His personal experience in football club

insolvencies is however limited to appointment in 2000 as administrator of Queens Park FC

(at that time an amateur team).

[64]

Mr Christie considered that the respondents had failed to take steps that any

competent administrator would have taken in relation to the playing staff, namely obtaining

independent professional advice on player redundancies, assessing the minimum playing

staff required to meet the administrator's objective, making surplus players redundant with

immediate effect, performing a creditors' cost-benefit analysis in relation to any alternative

strategy proposed on behalf of the players, and continuing to monitor the situation to ensure

that retained staff were still required.

[65]

It was not necessary to retain the whole playing staff to maintain "the fabric of the

club". A strategy of wage reductions could have been implemented alongside immediate

redundancies. By agreeing a temporary wage reduction the respondents had tied their

hands in terms of future actions, in a way that did not benefit potential purchasers. The

contract variations could have made the club less attractive. After offers were received it had

become apparent that squad size was not a key factor. None of the offers was conditional

upon the retention of any particular player. The respondents must also have been aware that

unless the company was rescued by a CVA, a sale of the business and assets would trigger a

TUPE transfer but, as the players could refuse to transfer, their value could be lost. If the

respondents had regarded the impact of redundant players' damages claims as having an

adverse effect on other unsecured creditors' claims, a detailed analysis should have been

undertaken: given the amount of HMRC's claim, the effect on other creditors would have

been insignificant. In view of all of the above, no ordinarily competent administrator acting

with ordinary care would have done what the respondents did in respect of player

redundancies.

[66]

Mr Christie's calculation of the loss caused by the respondents' failure to make

redundancies was as follows. He calculated the savings made by wage reductions without

redundancies (after making allowance for the players who did leave in early March, and for

the manager's salary waiver) to have been around £2.7 to £2.8 million. He identified eight

first team players and 15 reserve (youth team) players whom he considered ought to have

been made redundant in addition to the two who were made redundant and the one who

left. That would have left a reasonably balanced squad of 41 players, 15 of whom had sale

potential. If, for example, seven of these had been sold, there would still have been a

sufficient squad to complete the club's remaining 2011-12 fixtures. Although on

Mr Christie's approach the post-appointment trading wage costs would have been

about £550,000 (exclusive of NIC) higher than they were under the strategy adopted by the

respondents, the sale of only one player for at least £550,000 would have rendered the overall

outcome better for creditors. The insertion of n ew buy-out clauses in the retained players'

contracts would have been avoided, costs would have been reduced on a permanent and not

a temporary basis, and the possibility would have been left open of further redundancies

once the level of offers for the business became clear.

[67]

In cross-examination, Mr Christie disagreed with the proposition that in the present

case the choice between redundancies and temporary wage reductions had been a judgement

call for the respondents; he considered that the former would have been the normal and

more appropriate course of action. He accepted that in compiling his illustrative list of

players to be made redundant or retained, he had not taken account of time remaining on the

players' contracts, and in particular that the contracts of nine of the players who were not in

his list for redundancy were due to terminate at the end of the season. His opinion on player

redundancies proceeded upon the basis that the administration would not require to

continue into the following football season.

Expert evidence for the respondents

[68]

Mr Buchler's view was that while the respondents could have taken a number of

different steps to reduce costs, it was important that the steps they took matched the strategy

they had adopted, which was to rescue the company as a going concern via a CVA. If

savings had been achieved by other means, such as mass redundancies or wage deferrals,

this would have made the club a much less attractive prospect for a potential buyer. Given

the closed transfer window, it was not likely to be possible to sell a significant number of

players. The result of the agreement reached between the respondents and the players was

that the company's cash flow improved, putting it in a position to trade to the en d of the

season and maximising the overall recovery. While some of the lower value players who

were not strictly necessary to continue fielding a full team could have been made redundant,

this would have jeopardised the overall cost saving achieved. The negotiation of 25% to

75% wage reductions, as opposed to deferrals, was impressive, and it had been reasonable to

make concessions including insertion of the new buy-out clauses. Because of the way events

turned out, it was not known whether the buy-out clauses inserted into the players' contracts

had a negative effect on the realisable value of the players, as none of the clauses was ever

activated.

[69]

It was also worth noting that any involuntary redundancy of a player would have

been a breach of the football regulations, leading to sanctions including the possibility of

forfeiture of membership of the SFA and SPL. This would have forced a cessation of trade.

Focusing on their prime objective which was to preserve the fabric of the club, the

respondents had to find a method of saving cost which did not place them in breach of the

regulations of the SFA and SPL.

[70]

Mr Buchler did not consider that independent valuation advice prior to making

redundancies would have been relevant or helpful. The person who knew most about the

players and their opinions and values was the team manager, and he had been consulted.

Overall, the actions taken by the respondents in relation to player costs were clearly within

the range of options open to an ordinarily competent administrator.

[71]

Under cross-examination, Mr Buchler disagreed with the proposition that if the

ordinarily competent administrator could have achieved by way of redundancies the same

savings as had been achieved through the wage reduction agreement, then that would have

been the rational way to proceed. He maintained that wholesale redundancies would have

had such a negative impact on the club, the players and the fans as to make the club very

difficult to sell. It would have been disastrous to go down such a conflictual route.

Other evidence

[72]

Evidence relevant to the making of compulsory redundancies among the playing staff

was given by other witnesses. Mr Andrew Dickson, the company's head of football

administration, did not participate in the negotiations with the players and was not asked by

the respondents for his views on redundancies. He considered that his knowledge of the

players could have been of assistance to the respondents. In his evidence to the court, he

expressed the view that there were a number of players who could have been let go, either by

redundancy or transfer for a fee, without jeopardising the club's ability to complete its

fixtures and comply with its SPL obligations. He considered that a squad of about 26 players

(4 goalkeepers, 8 defenders, 10 midfielders and 4 strikers) as suggested by Mr Christie would

have been adequate. In Mr Dickson's view, the following could have been made redundant:

Neil Alexander (goalkeeper), Sasa Papic and Kirk Broadfoot (defenders), Lee McCulloch

(midfield) and David Healy (striker). Various other players, including Allan McGregor

(goalkeeper), Maurice Edu, Steven Davis, Alejandro Bedoya and Sone Aluko (midfield) and

Kyle Lafferty and Steven Naismith (strikers) could have been marketed for sale. In the

course of cross-examination, Mr Dickson accepted that in expressing his views he had not

taken into account how many of the players retained would have been out of contract at the

end of the season. He accepted that if all of the marketable players had been sold in addition

to the redundancies, the club would have been left with a squad largely comprising its youth

players.

[73]

Mr Andrew McKinlay, who was appointed by the SFA as its Director of Football

Governance and Regulation in April 2012, gave evidence regarding the potential regulatory

consequences of compulsory redundancies. He was referred to the SFA, SPL and FIFA

Regulations which indicated that compulsory redundancies would be a breach of the rules,

leading to the imposition of sanctions which could include forfeiture of membership of the

SFA and SPL. His view, however, was that this did not apply to redundancies that were

made out of necessity during administration, and that there had been no likelihood of

Rangers being sanctioned if redundancies were made by the administrators. He was

unaware of any football club administration in Scotland where this had occurred. He also

considered that if Rangers had had to apply to the SFA for dispensation in relation to fielding

a team in the under-19 league, because the youth players were required for first team duties,

it was likely that such dispensation would have been granted. As regards the SPL, the

evidence of Mr Rod McKenzie, legal adviser to the SPL and its successor the SPFL, on this

latter point was to the same effect. Mr McKenzie also confirmed that the SPL's rules did not

require a preference to be given to players' claims for damages in an administration or a

CVA.

Non-playing staff costs

The joint administrators' approach

[74]

At the date of administration, the company employed a total of 143 non-playing staff

allocated across a number of departments. The respondents did not make significant

redundancies. At an early stage it was decided to make two senior members of staff

(Gordon Smith, the company's director of football, and Ali Russell, the company's chief

operating officer) redundant with effect from 29 February. Two further members of staff,

one of whom was based in London, were made redundant on 9 March 2012. According to

Mr Christie's calculation, the monthly saving from these redundancies (excluding employer's

NIC) was £35,518 out of a total monthly wage bill of £460,000. Waivers and reductions

amounting to £69,200 per month were also agreed with some of the company's football

management.

[75]

The question of redundancies among non-playing staff does not appear to have been

given detailed consideration during the first couple of weeks of the administration. This may

have been because the respondents were informed that significant redundancies had been

made prior to administration, and that further redundancies would result in operational

difficulties. It appears, according to Mr Dickson's evidence, that any significant

redundancies had been made prior to the acquisition of the company by Craig Whyte. On

20 February, Mr Hart had a meeting with Ms Jacqui Gourlay, the company's head of business

management, at which staffing arrangements were discussed. By 29 February, however, no

further action had been taken. Mrs Bell emailed Mr Hart, stating that "we need to identify

the specific personnel to be made redundant on the operations side so that they can be

announced tomorrow with the others". Mr Hart and Mr Shipperlee had a meeting that day

with Ms Gourlay, in the course of which Mr Hart is noted by Mr Shipperlee as having said

"start with easy to identify cuts go from there". After the meeting, Ms Gourlay sent

Mr Hart a short list of personnel who could be asked to leave, some of whom had already left

or agreed to leave. These would have produced a modest monthly saving of around £18,000.

[76]

By this time, however, the issue of non-playing staff redundancies had become a key

element of the respondents' negotiations with the players. As already noted, one of the

conditions of the wage reductions eventually agreed was that there would be no significant

redundancies among non-playing staff. This was something about which certain of the first

team players felt strongly. After the conclusion of the players' wage reduction agreement,

the issue of non-playing staff redundancies was not revisited.

Expert evidence

Expert evidence for the noters

[77]

Mr Christie considered that wage reductions and redundancies were normal practice

and should be effected as soon as possible in the administration. Trading a business after an

insolvency event was different from trading a business under normal circumstances. Certain

departments, which were not essential to the operation of the business, would not be

required during administration trading. Implementing redundancies of non-key staff did

not have an adverse impact on the attractiveness of a business to prospective purchasers. An

early redundancy programme normally made a business more attractive as it avoided a

purchaser inheriting unwanted staff who would then have to be retained or made redundant

at the purchaser's cost. The argument that no further cost savings could be achieved because

of an agreement with the players and management was only justifiable if the respondents

had performed a cost benefit analysis before agreeing to such a condition. There was nothing

to indicate that such an analysis had been undertaken. In its absence, the respondents had no

reasonable justification for not making a substantial number of non-playing staff redundant.

[78]

Mr Christie considered that 74 members of staff ought to have been made redundant,

including six whole departments, namely charity foundation, community coaching, events,

youth development, scouts and sponsorship. Adjusted to reflect the redundancies actually

made, and also the management waivers and wage reductions, he estimated the loss to have

been £963,000 inclusive of employer's NIC. He emphasised that his views were based on the

information available to him and his own experience of approaching an immediate

redundancy programme in a trading insolvency. He had not had an opportunity to discuss

what each employee actually did or to confirm the potential impact of their redundancy. He

noted that a second tranche of redundancies might have been appropriate when it became

clear that the going concern offers were not likely to provide a significant recovery for

creditors, but his calculation made no allowance for additional potential cost savings in that

respect. In a supplementary opinion, Mr Christie also expressed the view that no ordinarily

competent administrator acting with ordinary care would have bound themselves not to

make further significant redundancies amongst non-playing staff. By doing so, they tied their

hands before knowing what final offers were likely to be received for the business, which

could not have been in the best interests of creditors.

Expert evidence for the respondents

[79]

Mr Buchler's view was that Mr Christie's opinion failed to take account of the

standards to which the company was subject in order to continue to host matches. He had

provided no evidence that over half of the non-playing staff could have been made

redundant without impacting upon the ability of the company to trade in compliance with its

legal and regulatory obligations. Mr Christie's estimate of possible staff redundancies was

therefore of little value. The evidence from the respondents' team suggested that certain

members of the company's senior management team whom Mr Christie suggested should

have been made redundant, including Ken Olverman (financial controller), Ms Gourlay, and

Claire Rinkes (HR manager), were key in assisting the joint administrators and that their

contribution was invaluable in managing the complex aspects of the administration.

[80]

Mr Buchler observed that Mr Christie suggested that the entire events and

sponsorship teams could have been made redundant, as well as all but one member of the

press office and marketing teams, but did not explain how the company could continue to

comply with its contractual obligations, such as advertising upcoming matches and

compliance with the agreement with its sponsors, without these staff members, or what

impact this might have had on the company's brand value. If these roles had had to be

performed by the respondents' team, this would have increased their workload and would

have been more costly to creditors.

[81]

In Mr Buchler's opinion, the actions taken by the respondents were reasonable and

appropriate in all the circumstances and were those of an ordinarily competent

administrator. The actions taken by the respondents were evidence of a carefully thought-

out strategy to deal with the position of non-playing staff costs.

Other evidence

[82]

In relation to the requirement to retain non-playing staff in order to fulfil regulatory

requirements, Mr Dickson's evidence was that for a UEFA club licence it was necessary to

have a general secretary, a managing director, and a qualified accountant. On the football

side it was necessary only to have a manager, an assistant manager and a goalkeeping coach.

However, he did not think that the club could have continued as a going concern until the

end of the season if all of the individuals in Mr Christie's list had been made redundant. An

appropriate number would have been somewhere in between that list and the two whom he

had identified at the time to the respondents as suitable for redundancy. He noted also that

community coaching was a commercial operation and that analysis would have been needed

to determine whether it was incurring cost or generating income.

[83]

Mr Fred Popp is the chief executive of Teamup Consulting Ltd, a sports consultancy

business, with extensive experience of advising clients in the football business. He was

engaged by Mr Miller as an adviser in relation to the possible purchase of the business and

assets of Rangers. In the course of cross-examination, he was referred to the email sent by

Mr Miller's solicitor on 4 May 2012, withdrawing Mr Miller's interest in the purchase. One of

the reasons given for withdrawal was that "the structure of the salaries in the coaches and

senior management are way above market and they all have one year notice periods meaning

that the right sizing costs are significantly more than expected". Mr Popp's view was that

this salary structure rendered the club "nearly unbuyable".

Player sales

The joint administrators' approach

[84]

On 20 February, Mr Dickson gave Mr Shipperlee a schedule of player valuations (to

which I shall refer as "the January schedule") that had been drawn up for the purposes of the

January 2012 transfer window. It showed the values attributed to individual players by four

football agents and the club's chief scout respectively. The respondents did not at any time

during the administration take a proactive approach to the sale of players, or obtain their

own valuation of the players. They effected one sale (of Matt McKay to Busan, South Korea,

on 20 February) and responded to interest in another (Dorin Goian) which did not lead to a

sale. In their oral evidence, Mr Clark and Mr Whitehouse stated that they did not proactively

pursue sales because their strategy was, so far as feasible, to keep the nucleus of the team

together as this in itself, and the positive effect of such a strategy on the attitudes of both

players and fans, would be likely to lead to the best price being obtained for the company.

There is, however, little contemporaneous evidence that this was expressly decided to be the

strategy to be pursued. Mr Shipperlee accepted that he had not been aware, at least until an

offer was made for Steven Naismith (discussed below), that there was a possibility of

effecting sales of players outside the transfer window applicable to a purchasing club. At an

early stage, the respondents' team identified countries where there was an open transfer

window; these did not include Scotland or England and Wales. Mr Clark acknowledged

that on this matter he had had no greater knowledge than that of Mr Shipperlee, and

Mr Whitehouse did not claim to have such knowledge. No specialist advice was taken on

whether it was practicable to sell players outside the transfer window. In these

circumstances I am unable to accept that the respondents pursued an express strategy of

retention; rather, it seems to me that they proceeded without awareness that there might be

an alternative. By the time the offer for Steven Naismith was received from WBA, the wage

reduction agreement had been concluded and there is no evidence that the respondents at

that time gave consideration to the possibility, let alone the desirability, of taking active steps

to generate interest in the purchase of other players.

[85]

As regards the attitude to player sales of potential purchasers, Mr Whitehouse stated

that purchasers had indicated that there were a small number of key players who were

essential to their interest in the club, and that those players had taken the attitude that "we

are all in this together". Again there is little contemporaneous evidence to support the first

part of this statement. Mr Popp's evidence was that Mr Miller wanted the club as a whole,

including "the whole squad" but did not recollect any differentiation being made between

one player and another. Mr Popp also stated that he did not think that it had been essential

for all of the players to come across, so long as there was a critical mass of the fans'

favourites. The agenda for a telephone conference call with representatives of the Singapore

consortium on 2 April included, under the heading "Players' Contracts", a sub-heading

"Risk of squad depletion prior to completion", although there was also a sub-heading

"Ability to cancel certain contracts (if required) pre-transaction". I find that these adminicles

of evidence demonstrate a desire on the part of two of the main bidders that there should not

be a substantial diminution in the playing squad but did not exclude the possibility of a few

sales if this was thought to be advantageous to the club. In any event they are of no

relevance to the strategy adopted by the respondents during the period prior to receipt of

those parties' expressions of interest.

Steven Naismith

[86]

The contributors to the January schedule had valued Steven Naismith at around

£4 to £5 million. In his wage reduction agreement, the amount in his buy-out clause was

reduced to £2 million, meaning that if the company received an offer of at least £2 million on

terms that were acceptable to the player, it had to be accepted by the company. On

17 March, WBA's sporting and technical director, Mr Dan Ashworth, expressed an interest to

Mr Clark in acquiring the player. Mr Ashworth had confirmed with the English FA and

Premier League that there was a means by which this could be done. The prospect of an

offer was discussed among Messrs Clark, Whitehouse and Shipperlee. Mr Shipperlee

suspected that WBA had been made aware, by the player's agent or otherwise, of the amount

in Mr Naismith's buy out clause.

[87]

On 24 March, WBA submitted an offer to purchase Mr Naismith for £1 million,

payable immediately in one instalment upon the player passing a medical and agreeing

personal terms. His registration would pass over to WBA when the transfer window opened

on 1 July. On 26 March, Mr Shipperlee replied on behalf of the respondents, rejecting the

offer because it did not meet their valuation of the player. There followed a conversation

between Mr Ashworth and Mr Shipperlee in which Mr Shipperlee gave Mr Ashworth "the

steer to £2 million". On 29 March, Mr Ashworth submitted an increased offer of £1,250,000,

together with entitlement to 10% of a sell-on above that figure. The offer was rejected on

5 April, Mr Shipperlee stating expressly in his email to Mr Ashworth that "Any revised offer

would need to be at the £2,000,000 level". This prompted a further offer from WBA, but

of £1,500,000. Mr Ashworth commented:

"I understand there is a release clause of £2m which you have confirmed. The player

is injured and cannot play this season, with the wage savings, cash guaranteed and

up front 3-4 months early and a guaranteed sale gone through I feel this is a very

attractive deal. I cannot see any more movement now from WBA. If this offer is

turned down we now may as well save 4 months wages, see if the player re-habs

effectively and pay the clause in July or move onto another player."

[88]

Although Mr Ashworth was clearly aware of the reduction of the amount in the buy-

out clause, he appears not to have been aware that Mr Naismith had agreed a 75% wage

reduction for the three months to 31 May, and based his calculations on the full salary that he

understood Mr Naismith to be receiving. On 10 April Mr Clark reiterated to Mr Shipperlee

that £2 million should be the price, but that "... if they reach halfway, say £1.75m presumably

it starts to make sense to us to save his salary and collect almost the full sum". Mr Shipperlee

calculated that a sum of £1.85 million would, after taking account of the wage saving, equate

to a transfer fee of £2 million. Mr Shipperlee did not share this calculation with

Mr Ashworth.

[89]

On 13 April, Mr Ashworth made what turned out to be his final offer of £1.7 million,

subject to the same terms and with the same comments as the previous offer. He considered

this to be effectively equivalent, taking account of the wage saving to the company, to an

offer of £2 million. The deadline for acceptance was stated to be 5pm on 17 April. The

deadline passed without any further communication between the respondents and WBA.

Mr Clark and Mr Whitehouse adhered to their view that £2 million was the minimum

amount that they should accept.

[90]

In his evidence to the court, Mr Ashworth explained his reasons for making an offer

for Mr Naismith at a time when he could not be registered as a WBA player. He thought that

there would be significant interest in the player when the transfer window opened, and that

WBA, who were not big payers compared to other Premier League clubs, would probably be

outbid in relation to wages, bonuses and signing-on fee by a larger club. Most clubs would

not know that it was possible to navigate around the transfer window restrictions. He could

not recall how he had heard about Mr Naismith's buy out clause. He never spoke directly to

Mr Naismith. His explanation for not increasing the offer to £2 million, which would have

triggered the buy out clause, was that at the time the player was unable to play because of

injury, and that if WBA were unable to obtain a discount, they might as well wait until the

window opened and have less risk because the medical situation would be less uncertain by

then.

[91]

Mr Naismith gave evidence that he had not been aware of the offers by WBA at the

time when they were made, although he was made aware of them some time afterwards. He

thought it likely that his agent would have known of the offers, but he could not recall

having any conversations about them with his agent or with Mr Dickson. He could not

speculate on what he would have done if the respondents had been minded to accept the

WBA offer. He was not, however, at that time contemplating the possibility that he would

end up leaving the club as a free agent, as in fact occurred.

Expert evidence

[92]

Evidence in relation to the respondents' approach to player sales was given by

Mr Christie and Mr Buchler. There was also, however, specialist evidence on player transfers

and valuation. On behalf of the noters, evidence was given by (i) Mr Paolo Lombardi, a

former head of FIFA's Disciplinary and Governance Department, whose company, Lombardi

Associates, offers consultancy services advising football clubs, players, agents, football

associations, football leagues and law firms on transfer-related and regulatory issues; and

(ii) Mr William Pethybridge, a football players' agent employed by World in Motion. On

behalf of the respondents, evidence was given by Mr Joel Pannick, a football players' agent

employed by CAA Base Ltd (formerly Base Soccer Agency Ltd).

Expert evidence for the noters

[93]

Mr Christie considered that on appointment the respondents ought to have

conducted an immediate review of player values, and to have taken objective professional

advice. Any alternative approach should have been the subject of a cost/benefit analysis and

monitored on an ongoing basis. The respondents had been aware from the January schedule

that the players had value which was likely to depreciate as time went by. The fact that there

was cash available to continue to play the full squad was not a reason to retain players not

required for a going concern sale. The fact that pre-appointment attempts to sell players had

met with limited success did not mean that post-appointment attempts would not succeed.

The respondents would have been unable to assess without specialist advice the extent (if

any) to which player values were impaired by the company's administration.

[94]

The transfer window being closed was a relevant factor but it did not mean that a sale

strategy could not be pursued. Available options included agreeing conditional sales for

implementation when the next window opened, selling to clubs where there was no

restriction on transfers, selling players on the basis that they could train with their n ew club

albeit they could not yet register or play, or negotiating loan arrangements. The offer from

WBA of £1.7 million for Steven Naismith ought to have been accepted. There was no

evidence that retention of this player was considered by any of the bidders to be critical to

their continuing interest. When added to the wage differential identified from a player

redundancy (rather than wage reduction) strategy, this sale alone would have resulted in a

significantly better outcome for creditors than the strategy adopted by the respondents.

[95]

Had the respondents sought appropriate advice, they would also have identified the

risk of value being lost in the event of a sale of the business and assets or a liquidation. In

either of these scenarios, players could decline to transfer to the new owners. For the most

valuable players, this was likely to be in their own interest as it would effectively allow them

to leave on a free transfer and negotiate a better remuneration package with the acquiring

club.

[96]

Based on Mr Lombardi's evidence as to the values at the material time of individual

players, Mr Christie estimated that a loss of £15,329,000 in transfer fees had been caused by

the respondents' failure to sell seven players identified by the noters (McGregor, Whittaker,

Davis, Edu, Wylde, Naismith and Lafferty). Sale of those players combined with the player

redundancies that Mr Christie considered ought to have been made would not have affected

the overall balance of the team available to complete the remaining fixtures. Mr Christie

made no additional allowance for a saving of players' wages because the company might

have required, in order to secure the sales, to agree to continue to pay the wages during the

administration period, although he noted that in Steven Naismith's case WBA had offered to

assume responsibility for payment of his wages.

[97]

Finally, in view of the fact that none of the interested parties made it a condition of

their offer that specific players were retained, Mr Christie considered that the value allocated

to the playing squad (of £2.75m) in the sale agreement eventually reached could still have

been obtained on a sale of the business, even if some of the players had previously been sold.

[98]

In relation to sales of players outside the transfer window (or, more properly, the

"registration period"), Mr Lombardi confirmed that it is common for clubs to hold

negotiations outside the transfer window and sign a contract for the transfer of a player, and

even to pay and receive compensation. However, registration of the player with the new

club can only be completed after the commencement of the registration period. It is most

common for a player to stay at the selling club until the transfer is completed, allowing

him to complete the season and fulfil his commitment to the club. In the case of Rangers,

it would therefore have been possible for the respondents to reach agreements with other

clubs prior to the opening of the summer transfer window, with the caveat that the transfers

would be effected immediately upon the opening of the window.

[99]

It was also possible for a player to relocate as soon as a transfer agreement was

concluded. This was less common because the player could not be fielded until the player

had been registered with the new club upon the opening of the registration period, but it

would allow the player to train with his new teammates, acclimatise himself to his new

environment, and relocate his family more comfortably. In this situation, the transfer fee

would usually be discounted to reflect that the buying club had committed to the transfer but

was not yet able to field the player.

[100]

Mr Pethybridge considered that there had been a substantial market for players in

February 2012. If the respondents had wished to attempt to sell players, they could have

spoken to the players' own agents and incentivised them to source deals for their players, or

they could have instructed an independent agent to act on the club's behalf and incentivised

them to generate sales, or they could have used a combination of both. If the agent was

being financially incentivised to reach a certain target, he would do his best to get as many

clubs interested as possible in order to drive the price up. If, h owever, the agents and the

players were aware that there was a possibility that the company was going to be wound up,

the players would wait to become free agents. The players' agent would stop co-operating

with the administrators and pursue that strategy instead.

[101]

Mr Pethybridge considered that if the club had engaged an agent to go into the

market during February to April 2012 to attempt to sell some of the top players, it was quite

likely that they would have generated offers. It had not been readily apparent at that time

that Rangers would not be playing in the SPL the following season and so there had been no

urgency for the players' agents to take the initiative to try to move them on.

Expert evidence for the respondents

[102]

In Mr Buchler's view, the respondents' approach to player sales was consistent with

their strategy, which was to achieve the rescue of the Company as a going concern via a

CVA. Attempting to realise funds from player sales would have faced considerable

difficulties: the transfer window was closed during the majority of the administration, and

even if a sale was achieved, any payments might have been deferred until the start of the

upcoming season; because players were being transferred in the context of an

administration, any sales achieved were likely to be for relatively low values; selling players

for a depressed sum might have decreased the interest of potential buyers of the company;

and selling the best players would have impacted on the attitude of the fans who might have

withdrawn their support for the club, resulting in lost revenue. The decision not to actively

market the players for sale was accordingly a reasonable approach to take.

[103]

The transfer of players was a market driven exercise. It could not be assessed in the

abstract or in the absence of actual offers for the players concerned. A cost-benefit approach

would have been of doubtful practical relevance, as the benefit to be analysed included the

value of retaining the player, both from a playing perspective, which was subjective, and

from the perspective of the company being more attractive to potential bidders, which was

impossible to assess during the early stages of the administration. The respondents were

entitled to proceed on the basis of the January schedule and had no need to instruct further

valuations.

[104]

When a club like Rangers entered into administration, word spread in the football

community that the club was in financial distress, and there would be an expectation

amongst other clubs that the respondents would be open to offers for players. Despite this,

the respondents received only a handful of expressions of interest from prospective buying

clubs. This lack of interest was caused not by the respondents' approach , but rather by a

culmination of factors outside their control: primarily (i) the closure of the transfer window,

and (ii) the need to seek player agreement. Mr Christie's suggestion of forward selling a

player's registration during the closed period was unrealistic. The salary of the transferred

player would have had to be paid by either the buying or selling club with neither getting the

benefit of the player's services, which would impact on the value achieved. In addition, it

did not account for the views of the player, who might not wish to commit to another club

three months before the transfer window opened. The market cannot be forced and there

always has to be a willing buyer and willing seller in order for a deal to take place. Any

other club or agent would be aware that should the company end up in liquidation, players

might become available at no transfer cost.

[105]

As regards Steven Naismith, Mr Buchler disagreed on balance with the decision taken

by the respondents not to sell the player to WBA for £1.7 million. That said, it was a close

judgement call: either option would have been open to an ordinarily competent

administrator. Mr Naismith was regarded as one of the most valuable players within the

squad and it was Mr Buchler's understanding that it would have made the company a less

attractive prospect if he had been sold. This would also have been contrary to the

respondents' strategy of retaining the key players within the team to maintain the company's

attractiveness to buyers.

[106]

Mr Pannick stated that the majority of football transfers were completed during the

transfer window registration periods. There was no clear benefit to a club from signing a

player outside one of these windows because they would not be able to regist er the player as

their own. The selling club would not normally receive payment until the registration was

completed when the next window opened. Clubs usually waited until close to the transfer

window opening before confirming their exact targets and beginning negotiations. This

might be for various reasons: they might need to wait to see whether they would retain their

status in the league in which they currently played; whether they expected to qualify for

European competition in the following season; whether they expected their current head

coach/manager to stay or leave; or whether they expected to sell any key first team players

and have additional funds to strengthen the squad. It was very uncommon for a transfer

deal to be completed before a transfer window began.

[107]

In the case of the Rangers players, it was highly probable (i) that they (and their

agents) would have been aware that it was in their interests and likely to be to their

advantage not to sign any new employment contract with the company or with any other

club until they became free agents; (ii) having regard to the insertion of the buy-out clauses

without an offer of new contracts, that the players would not in the circumstances have

signed any new contracts had they been offered by Rangers; and (iii) that the players' agents

would have realised that their clients held a position of considerable power in terms of their

negotiating position. They would have focused on acting in the interests of the players and

not the company.

[108]

In his oral evidence to the court, Mr Pannick reiterated that he did not think that it

would have made any difference to the likelihood of player sales if the respondents had

adopted a proactive approach and engaged an agent to attempt to achieve sales. Every

potential purchaser in the UK would have been well aware of the company's situation, and

the assumption would have been that the players were all for sale at a discount because

funds were needed quickly. There was no question of the top players not being good enough

to play in the English Premier League, or that prospective purchasers would have been

unaware of the buy-out clauses. The important factor was timing: purchasing clubs would

not have had to act, and would not have acted, until the summer transfer window opened,

and players could be obtained without payment of a transfer fee. There would have been a

very low probability of selling any of the club's most valuable players during February to

April 2012.

Other relevant chapters of evidence

[109]

In addition to factual and expert evidence directly related to the respondents'

approach to playing and non-playing staff redundancies and player sales, there were two

chapters of evidence relevant to the respondents' decision -making process. These concerned

(i) the position adopted by HMRC regarding the outcome of the administration, and (ii) the

attitudes to the administration demonstrated by supporters of the club.

The position adopted by HMRC

[110]

Throughout the administration it was known by all concerned th at HMRC were

likely to be by far the company's largest creditor, even assuming the amount due to them to

be at the lower end of the scale of estimates. It was similarly understood by all concerned

that without HMRC's vote in favour, there would be no CVA, and the exit from

administration would have to be by way of a liquidation.

[111]

Ultimately, HMRC voted against a CVA, but their decision to do so was not taken

until 31 May, and it was not until 8 June that the decision was intimated to the respondents.

There had previously remained a possibility that HMRC would support a CVA if its terms

were sufficiently favourable. However, although there was regular contact throughout the

administration, HMRC gave very little encouragement to the respondents to treat a CVA as a

likely outcome. Following a meeting on 24 February, Mr Grier reported to Mr Clark:

"My interpretation of key areas for HMRC are (1) getting their money back

(2) exercising full power of prosecution etc (where appropriate) against company

officers (3) no adverse PR or security issues.

...

Liquidation was noted as a preferred outcome to allow for full investigation."

This was reflected in a note entitled "Draft Note for HMRC" prepared by Mr Clark on

8 March, in which he observed:

"In an attempt to preserve the Company's status as a member of the SPL with a view

to maximising returns to creditors, the most financially beneficial result for the Club

is likely to be that the Company will exit Administration via a CVA. We know that

HMRC are keen to ensure that a full and proper investigation is undertaken with `no

stone left unturned' and so at present you regard liquidation as a likely result. We

would like to continue to review these options with you please."

[112]

On 5 April, the respondents finalised their Report to Creditors and Statement of

Proposals. The resolutions proposed included the following:

"Resolution (1) 17.1.4 That the Joint Administrators can explore any and all options

available to realise the assets of the Company without recourse to creditors. The Joint

Administrators be authorised to conclude a sale of the whole, or part of the business,

property and assets of the Company without having to obtain the sanction of the

Company's creditors at further creditors' meetings, upon such terms as the Joint

Administrators deem fit and they be authorised to liaise with all relevant parties,

bodies or organisations which they deem relevant for achieving that purpose.

...

Resolution (2) 17.1.6 That the Joint Administrators may propose such CVA(s) or

Scheme(s) of Arrangements as they deem appropriate and see fit, subject to the

outcome of offers."

The draft report, including the proposed resolutions, had been sent to HMRC in advance of

the creditors' meeting for any comment that they might have. HMRC voted in favour of the

resolutions.

[113]

Following a further meeting on 11 May, Mr Grier prepared a draft note for comment

which contained the following:

"DD asked for comment from MB and his view of HMRC voting against a CVA. MB

confirmed at this time a liquidation is HMRC's preferred route. MB noted that as a

strategy it is important to demonstrate compliance with tax is important liquidation

also provides the opportunity to investigate those responsible for non compliance.

...

DD asked for confirmation from HMRC and in particular MB that the department

would not agree to a CVA. MB explained that should an offer of say circa £50m be

received versus an offer for liquidation at circa £5m then this would need to be given

consideration, but at this time the preferred route is liquidation. DD said he

understood this position."

In this meeting note the initials "MB" refer to Mr Mike Baird, who in 2011-12 was the head of

the Finance Professionals Unit in HMRC's Specialist Investigations ("SI") directorate,

providing specialist insolvency and accountancy advice to teams in SI as well as to HMRC's

Local Compliance and Debt Management & Banking ("DMB") directorates. Mr Baird was

one of the administration team's principal contacts within HMRC and he gave evidence at

the proof. Those present at the meeting on 11 May also included Mr Whitehouse (referred to

in the meeting note as "DW") and Mr Des Dolan, a member of HMRC's DMB directorate

(referred to in the meeting note as "DD"). It seems to me that the references in the draft note

above to "DD" ought to be to "DW", which would appear to make more sense.

[114]

It was Mr Baird's consistent view throughout the period of the administration that

HMRC ought not to support a CVA, and he frequently made this clear to the respondents

and their staff. There were a number of reasons for this; he had concerns about "non-

compliance", which I understand to mean intentional non-payment of taxes during the

period prior to the company entering administration, and Mr Baird wished to preserve the

possibility of pursuing recovery proceedings against company officers. He was also

concerned that Rangers should not be seen to be receiving preferential treatment as

compared with other football clubs. There was additionally a desire to be able to continue to

pursue the EBT litigation. But Mr Baird's principal reason was that he judged that, taking all

of the above into account, it was likely that a liquidation would produce a better financial

outcome for HMRC than a CVA.

[115]

Mr Baird's involvement with the company had pre-dated its entry into

administration. His understanding at that time, and during most of the administration

period, was that his colleagues in the DMB directorate shared his opinion as to the preferable

outcome. Latterly, however, in about May, he became aware that at least some of the officers

in DMB, including its director, favoured a CVA. For this reason, and having regard to the

high public profile of the case, the decision on whether or not to vote in favour of a CVA had

to be taken by members of HMRC's executive committee ("ExCom"). At a meeting with two

ExCom members on 31 May, Mr Dolan presented DMB's view that a CVA would produce a

better recovery for HMRC. Mr Baird argued on behalf of SI that the CVA should be rejected

and a creditors' voluntary liquidation sought instead, so that an investigation could be

carried out to maximise recovery and review what had happened at the company. The

ExCom members decided that any CVA should be rejected and that HMRC should vote

accordingly.

Attitudes of the club supporters

[116]

Rangers FC has a passionate support who reacted with predictable anger to the club's

insolvency. The respondents engaged proactively with representative members of the club's

supporters' groups, including the Rangers Supporters' Assembly, the Rangers Worldwide

Alliance and the Rangers Supporters' Trust. Throughout the administration period,

however, the respondents and their staff were subjected to disruptive, abusive and

threatening communications from individual supporters. Measures had to be taken, on

police advice, to assure the security of the respondents and the members of their team when

they came to Glasgow. Details of administration decisions taken were frequently leaked to

the press before the respondents' staff had had time to inform the persons affected. Press

reports were often inaccurate and much time had to be spent attempting to correct false

assertions in the press and in social media. Supporters' anger came to a head in early April

when press reports suggested that liquidation was a likely outcome, with the business and

assets of the club being sold to a Newco. This prompted a demonstration against liquidation

by fans during a match at Ibrox.

[117]

I do not underestimate the difficulties caused for the respondents and their staff by

the supporters' behaviour. However, as the respondents themselves readily acknowledged,

it is not uncommon for administrators to have to deal with abusive conduct on the part of

individuals with an interest, financial or otherwise, in the company concerned, and an

administrator must not allow himself or herself to be deflected by it from fulfilment of his or

her statutory duty to creditors. It is obvious that in the case of a football club administration,

the interests of the fans are unlikely to coincide with those of the creditors. This does not

however mean that the views of the fans could or should be ignored. A prospective

purchaser will be reliant upon them for future income from season tickets, branded

merchandise and other sources. Alienation of the fan base could make the club less attractive

to prospective purchasers and thus damage the outcome for creditors. Interference by fans in

the bidding process could also affect the attitudes of prospective purchasers and drive down

the selling price of the business. These are considerations that it was right for the

respondents to bear in mind when making decisions in relation to matters such as player and

non-player redundancies and player sales.

Assessment: were the respondents in breach of their duties to the company?

Obtaining of information and consideration of alternatives

[118]

I address firstly the steps taken by the respondents to inform themselves of the factors

relevant to their decision-making in relation to player and non-player redundancies and

player sales. In my opinion the respondents' actings in this regard fell below the standard

reasonably to be expected of an ordinarily competent administrator in a number of respects.

To the extent that my view relies upon expert opinion, I prefer, at this general level, the

opinion of Mr Christie to that of Mr Buchler.

[119]

Firstly, I am satisfied that the respondents acted without having taken independent

advice on certain critical matters about which they required to be informed. As regards

player redundancies, they relied upon the opinion of the manager, Mr McCoist, whom they

ought not to have regarded as being in a position to offer a dispassionate opinion as to the

number of possible redundancies that could be made while leaving the club with a squad

capable of fulfilling its fixtures, or the identities of the players who could be released. It is

noteworthy that his list included only four players proposed for release from contract, three

of whom were in any event out of contract in three months' time, and one (Alexander) in the

twilight of his career. The respondents regarded Mr McCoist's proposal as insufficient but

failed to follow through the implication of this, ie that they needed to obtain advice from

someone else. Even Mr Dickson would have recommended a slightly longer list, had he been

consulted. The consequence was that by the time of the negotiations of wage reductions, the

respondents did not have a reliable list of potential redundancies to use when making a

comparison with the savings obtainable from wage reductions.

[120]

Allied to this are what in my view are certain other failures by the respondents

adequately to inform themselves of the possibilities available to them. I have already

observed that I do not accept the respondents' evidence that they considered and rejected a

strategy of player sales because they wished to keep the squad intact for prospective

purchasers. It is in my view much more likely that they did not fully investigate player sales

because they proceeded on the assumption that none could take place except to clubs playing

in countries whose transfer window was open, but which were not markets in which Rangers

players would usually be sold. The evidence of Mr Ashworth demonstrates that sales

outside the transfer window, although uncommon, are not prohibited, provided that both

clubs and the player are content with a situation in which the player remains unregistered

with the purchasing club until the opening of the next window.

[121]

Another matter upon which the respondents were not adequately informed was in

relation to the application of a "football creditors" rule in Scotland and, specifically, the risk

that the application of such a rule could result in claims being made by players made

redundant against the new owner of the company or against a Newco that acquired its

business. The SFA Rules contain no such rule. On this matter, Mr Clark received advice in

an email dated 28 February from Mr Michael McLaughlin, a solicitor with relevant expertise,

that the SFA "could in theory" make a Newco's entry to the SPL conditional upon it

undertaking to fund the redundancies. This advice was not however followed up either in

terms of assessing the likelihood of the SFA attempting to impose such a condition, or in

terms of calculating the financial consequences, both of which had been the subject of queries

by Mr McLaughlin in his email. In relation to the first of these, the evidence of Mr McKenzie

was that the SPL's rules did not require a preference to be given to players' claims. I find

that the respondents were not in possession of information that entitled them to proceed on

the basis that the risk of claims by football creditors against prospective purchasers was to be

regarded as a reason not to make redundancies among playing staff.

[122]

I also find, accepting Mr Christie's evidence in this regard, that the respondents failed

to give adequate consideration to savings by means of redundancies among the non-playing

staff. It is striking that almost none was made. Again this does not appear to have been the

consequence of a deliberate strategy. It was not until the end of February that the company's

department heads were asked for suggestions for redundancy, whereupon the issue of non-

playing staff redundancies became subsumed within the players' wage reduction

negotiations. As a consequence, the matter of which non-playing staff could or should be

made redundant was never given detailed consideration.

[123]

The consequence of this was that when Mr Shipperlee drew up a sensitivity analysis

on 8 March, in which the scenarios included, inter alia, player wage reductions very similar

to those actually agreed (Sensitivity 9) and "various player redundancies" (Sensitivity 10), he

did so without reliable information as to what redundancies could in fact be made.

Mr Shipperlee's analysis showed that the cash deficit was some £565,000 lower under

Sensitivity 9, suggesting that wage reductions produced the better outcome, but the value of

this comparison is diminished by the fact that it is unclear how the figure for redundancies

was arrived at. In an email of the same date, Mr Shipperlee observed that 16 or 17 players

would need to be made redundant to equate to the wage reduction savings; it does not

appear that that particular scenario was further investigated. Nor was the sensitivity

analysis set up to take any account of the terms demanded by the players in return for the

wage reductions, notably the buy out clauses, and the effect of those terms on the value of

the players and hence the outcome for creditors.

[124]

Finally in this context I find that the respondents failed to take adequate account of

the consequences of the administration ending with a liquidation and not a CVA. The noters

do not criticise the respondents for proceeding on the basis that a CVA remained a

possibility, and neither do I. As I have narrated, it was not until a very late stage in the

administration that HMRC made and intimated their decision not to vote in favour of a CVA.

That said, the indications that the respondents received at various times from HMRC, and

from Mr Baird in particular, were clearly to the effect that for the reasons I have mentioned,

HMRC's preferred outcome would be a creditors' voluntary liquidation. I have seen no

evidence that until the point was made to them by Fraser Wishart on 5 April the respondents

were alive to the risk that if the outcome was liquidation, some or all of the players might

elect not to exercise their right under TUPE to transfer to the new company. That was not, of

course, a certainty, and I bear in mind that throughout much of the administration the

respondents proceeded in the expectation that even following a sale of the business and

assets to a new company, the club would continue to play in the SPL in the following season,

thereby providing the players with a stronger incentive to transfer to the new company. At

the very least, however, it seems to me that when making their decision at an early stage not

to take a proactive approach to player sales, the respondents failed to give any consideration

to the fact that in the event of a liquidation the entire squad would become available for

transfer without a fee and therefore not contribute to the value of the company to prospective

purchasers. This was a risk of which, in my view, they ought to have been aware. Had they

given the matter consideration, they would or ought to have realised that the players most

likely to decline to transfer would be the most marketable players who would attract interest

from wealthier clubs in England and elsewhere.

[125]

In relation to the above matters, I found the evidence of Mr Buchler unsatisfactory.

The opinion expressed in his written report that the respondents' strategy of not marketing

players for sale was reasonable failed to take account of the risk just discussed of the players

becoming free to transfer without a fee. In cross examination he accepted that the risk

existed and that administrators should take account of the terms of TUPE regulations. As

regards obtaining player valuations, Mr Buchler expressed the view that this was

unnecessary because the respondents already had the January 2012 valuations, and there was

no proven method to differentiate a player's valuation in an insolvency context as compared

to a solvent context. The evidence of Mr Lombardi and the players' agents made clear that

there would be a significant difference, and in my opinion it was the respondents' duty to

inform themselves of the players' values in the circumstances which prevailed. In these

circumstances I consider that Mr Buchler's view that the respondents could only have regard

to actual demand from prospective purchasers, without obtaining their own advice, cannot

logically be supported.

[126]

In certain important respects Mr Buchler's opinion proceeded upon the basis of

assumptions of fact for which there was no evidence. Most notably it proceeded upon the

basis that redundancies would have had an adverse effect on the value of the club to a

prospective purchaser. That proposition is not self-evident: if a player's wage cost exceeds

his value then his redundancy will have a positive effect on the value of the club.

Mr Buchler's contrary opinion amounts to unsupported assertion, and appears to me to

conflict with what is accepted to be normal practice in the conduct of an administration. His

view that the respondents were entitled to rely upon the manager's opinion on player values

and redundancies does not address the question whether he could provide a disinterested

assessment. In relation to non-player costs, Mr Buchler's opinion was almost entirely

reactive to Mr Christie's opinion, and although Mr Buchler agreed that a company in

administration does not operate, and should not operate, as it did pre-administration, he

offered no view of his own as to the extent to which redundancies among non-playing staff

could or should have been made without putting the company in breach of any legal or

administrative requirements.

Did the respondents' failures cause loss?

Redundancies versus wage reductions

[127]

The breaches of duty identified above are all concerned with failure to obtain

information and to give due consideration to redundancies as an alternative to wage

reductions, and to possible player sales. It is not necessarily the case that these failures of

themselves gave rise to losses for which the noters are entitled to compensation. I turn now

to consider what courses of action would have been open to a reasonably competent

administrator who had obtained the requisite information and given due consideration to

these matters. I begin by considering the arithmetic, taking as my starting point the figures

helpfully agreed by parties in a supplementary joint minute. These figures are not

dependent to any extent on the application of hindsight, and I make the assumption that the

same calculations could have been carried out by the respondents at the time when decisions

were being made regarding redundancies and wage reductions.

[128]

The figures in the supplementary joint minute comprise, for the period from February

to May 2012, the full wage entitlements of, and the amounts actually paid to, three categories

of personnel, namely (i) 64 non-playing staff (out of a total of 134) whom Mr Christie

considered ought to have been made redundant, including the four who were in fact made

redundant; (ii) 23 players (13 first team and 10 youth players) whom the respondents, based

to some extent on Mr Christie's opinion, contend ought to have been made redundant,

including one (Celik) who was made voluntarily redundant; and (iii) 10 players, including

one (Wylde) who was made voluntarily redundant, whom the respondents contend were

marketable for sale. The figures for category (i), taking account also of the fact that the

manager waived his salary for three months, are:

Full salaries and NIC if no redundancies or waiver

£1,299,827

Total actually paid

(955,623)

Saving on full salaries

344,204

For category (ii), the figures are

Full salaries and NIC if no wage reductions

£2,848,864

Total actually paid

(1,409,299)

Saving on full salaries

1,439,565

In this latter calculation it is common ground that the salary of one player (Ortiz) who was

on loan was in fact met by his parent club, and that the total actually paid should

be £1,253,852. For category (iii), the figures are

Full salaries and NIC if no wage reductions

£2,019,409

Total actually paid

(608,063)

Saving on full salaries

1,411,346

The total saving on those categories of players' wages achieved by the wage reduction

agreement was accordingly £2,850,911. The respondents calculated (and I accept) that there

were additional savings of £19,581 in respect of reductions of wages of players not included

in either category (ii) or (iii).

[129]

On the noters' approach, there would have been further savings of all of the wages

paid to both non-playing staff in category (i) and players in category (ii), ie a figure

of £(955,623 + 1,253,852) = £2,209,475. From this there must be deducted the savings made by

the wage reductions of the other players, ie £(1,411,346 + 19,581) = £1,430,927, leaving a net

further saving of £778,548. Account must also be taken of the saving actually made by

waiver of the manager's salary. I have no basis upon which to assume that Mr McCoist

would have agreed to the waiver if the respondents had chosen to follow a strategy of

compulsory redundancies; Mr Clark's evidence was that it would have been difficult to

encourage him to do so. Mr Christie's approach appears to assume that in that eventuality

he too would have been made redundant. It is sufficient for present purposes for me to find

that it would have been within the options open to the respondents to retain Mr McCoist as

manager, even if he had not agreed to a salary waiver. He was an important and popular

figurehead, and the respondents would have been entitled to take the view that his enforced

departure, and the likely reaction among supporters, would have damaged the value of the

club to prospective purchasers. I accordingly consider that a further deduction (based on the

parties' agreed figures) of £213,117 falls to be made, leaving a net saving of £565,431 by

adopting redundancies instead of wage reductions.

[130]

This figure may be contrasted with the conclusion in Mr Shipperlee's sensitivity

analysis (above) that wage reductions would produce a cash deficit some £565,000 lower

than that produced by redundancies. This very significant difference is clearly the

consequence of conflicting approaches to what would have been an appropriate and

practicable level of redundancies. The respondents contend that the redundancies advocat ed

by Mr Christie would have been neither appropriate nor practicable, and would have left the

company with insufficient players to be able to fulfil its fixtures (especially if the

administration continued into the following season) and also with insufficient non-playing

staff to operate effectively and in accordance with FIFA and SFA regulations.

[131]

In the course of cross-examination, Mr Christie accepted that the comparison that he

had used with the administration of Portsmouth FC to support his proposition that the

making of player redundancies was a normal practice demonstrated that savings were in fact

made not from player redundancies but from non-playing staff redundancies combined with

player sales. He agreed that his lists were "illustrative" rather than definitive as to the

appropriateness of making specific individuals redundant, taking account, in the case of the

players, of the number available for each position and their respective values. He did not

take account of the length of time remaining of the contracts of the players retained, or of any

regulatory obligations that the company might have to field a youth team as well as a senior

team. His list did not take account of requirements for the following season as he regarded

that as a matter for the prospective purchaser to determine. In relation to non-playing staff,

he had not discussed his list with any of the club's senior administrators, some of whose

names were included in the list. He accepted that it was arguable whether the latter sh ould

be included. He did not accept that it was over-optimistic to expect redundancies to have

been made in time to save the cost of the February payroll, but did concede that it would

have been challenging.

[132]

In relation to non-player redundancies, I am unable to accept Mr Christie's evidence

in its entirety. Whilst I accept that it was difficult for him, some years after the event and

without personal knowledge of the duties and relative importance of particular staff

members, to identify individuals whose services could or had to be dispensed with in the

context of the company's insolvency, I find the concept of an illustrative list to be of limited

assistance. I am, of course, in no better position to make an assessment, on an individual

basis, of the employees whose retention was essential to the company's operation. The

respondents' evidence, including that of Mr Buchler, provides me with no help in this

regard. It does, however, seem to me that some of Mr Christie's inclusions are obviously

questionable: for example, Ms Gourlay provided assistance to the respondents in relation to

the day to day operation of the club, and assumed the responsibilities of a much more highly

paid executive director who was made redundant. If Mr Olverman, the financial controller,

had been made redundant, his workload would presumably have fallen upon the

respondents' staff, thereby increasing the costs of the administration. Mr Christie provided

no comparative evidence that the proportion of the total staff included in his list was in

accordance with usual practice in a football company insolvency.

[133]

I am, nevertheless, persuaded that if the respondents had fully investigated the scope

for non-playing staff redundancies, they would have identified possibilities in addition to the

very modest list provided by Ms Gourlay. I bear in mind the view of Mr Popp that the

remuneration structure of the coaches and senior management was above market rates and

made the club unattractive to a purchaser, and the view of Mr Dickson that there had been

scope to make staff redundant from various departments. It is not in dispute that a club in

administration cannot be operated in the same way as it would in more normal

circumstances, and that difficult decisions have to be taken. I accept Mr Christie's opinion

that in the company's circumstances there were whole departments that could have been

dispensed with: specifically, the charity foundation, youth development, scouts and

sponsorship. I exclude community coaching from this list because Mr Dickson suggested,

though he was unable to confirm, that it was productive of revenue rather than cost.

[134]

Using the figures in the supplementary joint minute, the savings that would have

resulted from making all of the individuals in these four departments redundant would have

been £223,314. That figure assumes that four months' wages would have been saved. I am,

however, satisfied that the respondents' early decision to meet the February payroll was a

reasonable one. This was clearly going to be a complex administration, and even if the

respondents had pursued a policy of making a significant number of redundancies, they

would have had a considerable amount of work to identify players who could be released

and non-playing staff who were not crucial to the operation of the business. It does not

appear to me to be unreasonable to allow the remainder of February for such investigations.

It follows that the savings that I find could have been made in the four departments referred

to is 75% of the above figure, ie £167,485.

[135]

I am satisfied, on the basis of the evidence of Mr Dickson and, from a different

perspective, Mr Popp, that further redundancies could have been made without jeopardising

the capacity of the company to meet its fixture obligations for the remainder of the season or

breaching FIFA, SPL or SFA regulations, or damaging its attractiveness to a prospective

purchaser. These would have included, but not been restricted to, the in dividuals identified

for redundancy who were not in fact made redundant. The saving for three months in

relation to those individuals would, according to my calculation, have produced a further

saving of £47,596. Beyond that, I can do no more than proceed on a broad brush basis and

find that further redundancies could have been made which would have resulted in total

salary and NI savings for non-playing staff of at least around £250,000.

[136]

Turning to player redundancies, the respondents criticised Mr Christie's approach in

a number of respects. It was submitted that (i) the exercise that he carried out was a

theoretical one; (ii) he had not taken account of the risk that the administration might

continue into the following season with the consequence that his much reduced squad would

need to compete in the SPL for all or part of another season with the registration prohibition

imposed because of the club's insolvency position still in place; (iii) he had not taken account

of the risk that the SPL would not relieve the company of its obligation to compete in the

youth league; (iv) he had not taken account of the fact that nine of his retained players

would be out of contract on 31 May 2012 and thus free to leave the Club while it might still

be prohibited from registering new players; (v) he planned to retain only two goalkeepers

other than Allan McGregor, who was to be offered for sale, even though one of them was

almost out of contract and facing a criminal trial which in fact resulted in him leaving

Rangers that summer.

[137]

I consider that there is force in these criticisms, except that I find on the evidence that

there was no real likelihood that the SPL would have refused a waiver of the obligation to

compete in the youth league if the company was having to use its youth players to fulfil its

senior fixture obligations. The goalkeeper point can be addressed by removing

Allan McGregor from the list of marketable players. I agree, however, that in deciding

whether to proceed by way of redundancies rather than wage reductions, the respondents

would have been entitled to have regard to the potential consequences for the company if the

reduced squad had had to continue to compete into the next season without reinforcement

because new registrations were prohibited. If the playing squad had been depleted to the

extent that the club was unable to compete effectively because the team was largely

comprised of youth players, that could have had an impact on its value to purchasers and

hence on the return to creditors. I also accept the respondents' submission that where the

noters are seeking compensation linked directly to the players whose contracts should have

been terminated, it is incumbent upon them to provide more than an illustrative list.

[138]

There is, however, a difference between making redundancies on a scale that would

lead to the fielding of a team consisting largely of youth players and making selective

redundancies among players whose continued employment was not critical to the value of

the company. I have noted that a list (Papac, McCulloch, Alexander and Broadfoot) was

provided by Mr McCoist which the respondents considered to be insufficient, and that in his

evidence to the court Mr Dickson offered his view as to players who could have been made

redundant (Mr McCoist's four plus Healy). There was no evidence that releasing any or all

of those first-team players would have reduced the value of the company to prospective

purchasers. Nor was there any suggestion that releasing some of the youth players would

have had such an effect.

[139]

I find therefore that if, during the first week of March when the wage reduction

negotiations were in progress, the respondents had carried out an assessment of whether

equivalent or greater savings could have been made by means of redundancies, they would

reasonably have concluded that at least the five players mentioned by Mr Dickson could

have been made redundant, along with some of the youth players, without adversely

impacting upon the eventual return to creditors. I calculate the saving of three months'

salary for these five players to be £403,191. Allowing, say, an additional £42,000 as a saving

on eight youth players (ie 75% of 8 x £7,000), I find that player redundancies could have been

made that would have produced an additional saving of at least £445,000. I do not consider

that the evidence permits me to go any further.

[140]

Aggregating the foregoing savings made by non-player and player redundancies

produces a total of around £695,000. If applied to Mr Shipperlee's sensitivity analysis, that

would convert a benefit of £565,000 from proceeding by way of wage reductions into a

benefit of £130,000 from proceeding by way of redundancies. That is not, looked at in

proportion, a large difference. Had they carried out a calculation which produced a

difference of this order, one way or the other, the respondents would in my opinion have

been entitled to regard the arithmetic as effectively neutral, and to proceed to make the

choice between wage reductions and redundancies on the basis of other considerations.

[141]

Those considerations would not, in my view, have included the question whether

player sales ought to have been made. Although the wage reduction agreement reached

with the players precluded player redundancies, it did not prohibit sales. The respondents

were not therefore, by entering into the agreement, precluded from taking or continuing to

take a proactive approach to marketing players for sale. The advantages identified by the

respondents of proceeding by way of wage reductions included:

By retaining a larger squad, the value of the company was enhanced and the

options available to the purchaser for the season ahead were retained;

Any risk of the football creditors rule being applied by the SFA to players'

claims was removed;

Damaging conflict with players and supporters was avoided.

The disadvantages identified by the noters of proceeding by way of wage reductions

included:

The loss of an opportunity to reduce the monthly wage bill to be inherited by

a prospective purchaser;

The fact that reduced buy out clauses were negotiated as part of the wage

reduction agreement;

The creation of an artificial deadline on the date when wages returned to pre-

reduction levels.

[142]

In my opinion, none of these considerations is sufficiently powerful to be decisive one

way or the other. There was no convincing evidence that the value of the club was enhanced

by retaining almost the whole squad; equally there was no evidence that any of the credible

bidders was discouraged by there being an excessive number of players on the payroll. At

the time when the decision to proceed by way of wage reductions was being taken, there was

no certainty as to what size of playing squad would be required for the following season, and

the respondents were entitled to regard that as a matter to be addressed by the purchaser

once the situation for 2012-13 became clear. Although conflict with players and supporters

would have been undesirable, it was accepted by all concerned that in an administration

difficult and unpopular decisions often have to be taken. For the reasons already stated, I do

not attach significant weight to the risk of the SFA attempting to enforce a football creditors

rule against a purchaser of the business in respect of players' redundancy claims.

[143]

In the absence of any decisive considerations in favour of redundancies, I conclude

that the decision to proceed by way of wage reductions, including the contract variations in

relation to buy out clauses, was an option reasonably open to the respondents, and that they

were not in breach of their duty to the company's creditors in choosing to go down that

route.

Player sales

[144]

I turn next to player sales, leaving aside for the moment the particular case of

Steven Naismith. I have held that the respondents were in breach of their duty to creditors

by failing to seek advice with regard to the prospects of realising value by player sales. What

advice, then, would the respondents have received had they sought it? If they had sought

advice from a football agent sharing Mr Pethybridge's views, they would have been told that

selling players outside the transfer window was possible, but would not be easy to achieve.

If they had sought advice from an agent sharing Mr Pannick's views, they would have been

told that it was very unlikely that they would succeed in selling players quickly because

although clubs will conduct negotiations, they will normally make no final decisions until

shortly before the transfer window opens. They would also have been told that even if a sale

was agreed, it was unlikely that any money would be paid until the player could be

registered with the purchasing club when the transfer window opened in the summer.

[145]

It was ultimately a matter of agreement between Mr Pethybridge and Mr Pannick that

if the respondents had engaged an agent early in the administration to attempt to sell the

marketable players, they would have been advised that although there was a prospect of

attracting interest by the end of March, no sales were likely to be concluded until closer to the

opening of the summer transfer window. Mr Pannick regarded it as standard practice for

exclusive authorisation to be sought for a period that included the next transfer window.

Mr Pethybridge would have been reluctant to accept appointment on the basis that sales had

to be achieved by, say, the end of March. Although they differed as to the likelihood of

achieving sales, both would have been happy to accept instructions on the basis that their

authorisation would continue into the summer transfer window.

[146]

On the basis of this evidence, I find that if the respondents had sought to engage an

agent on behalf of the club to attempt to sell the marketable players, it is unlikely that they

would have found an agent willing to accept instructions to effect a quick sale, especially on

the basis that a fee would only be paid in the event of success. On the other hand, I find that

they would have had no difficulty engaging an agent on the latter basis if the authorisation

were to continue into the summer transfer window. (I accept the evidence of Mr Lombardi

and Mr Pannick that due to conflict of interest the respondents could not, as Mr Pethybridge

suggested, have "incentivised" the players' own agents to source deals for their players.)

The next question is therefore whether an ordinarily competent administrator exercising

reasonable skill and care would have done so.

[147]

In my opinion there are strong reasons why a proactive strategy ought to have been

pursued. Taken as a whole, the evidence did not suggest that sale of a few of the club's most

highly valued players would have had a significant effect on the valuation placed on the club

by prospective bidders. Although Mr Miller expressed a desire for the playing squad to be

retained, the level of his bids did not indicate that he was attaching substantial value to

individual players. Even with the (modest) player redundancies that I have found could

have been made, the playing squad would have remained sufficient for the club to fulfil its

fixture obligations for 2011-12 and, if necessary, to continue to do so in the following season.

If an agent were to be engaged on the basis of a success fee, there would have been little or

nothing to lose by attempting sales. On the other hand, there was a real risk that the value of

some or all of the players would be lost altogether. Although the prospect of a sale of the

business and assets instead of a CVA does not appear to have received public attention until

about the beginning of April, it was a possibility to which the respondents were or ought to

have been alive from the outset, given the stated preference of HMRC for a creditors'

voluntary liquidation. The eventual outcome, in which some of the most valuable players

declined to transfer to the Newco, was reasonably foreseeable, even before the SPL Board

resolved to pass to its members the decision on whether to allow the company's SPL share to

be transferred to Sevco. For these reasons, I am satisfied th at the respondents were in breach

of duty by failing to engage an agent to attempt to realise the value of some of the club's top

players.

[148]

I do not find Mr Buchler's contrary opinion on this matter persuasive. I do not accept

that sale of a few players would have jeopardised the company's ability to meet its match

day obligations. The fact that player valuations were likely to be depressed during the

administration has to be set against the risk that their value would be lost altogether, as in

fact occurred. Although sales would undoubtedly have been unpopular with fans, I have no

difficulty rejecting the proposition that this would have caused them to cease to support the

club. I accept Mr Pannick's evidence that, for the reasons he gave, it was very unlikely that

player sales would be completed during the months of February to April, but I do not regard

this as a barrier to adopting what was the common practice of seeking to generate interest

during that period with a view to concluding a deal as the summer transfer window

approached. Although this would have been unlikely to have any beneficial effect on the

monthly cash deficit, as the players would probably have continued to be paid by the

company, it would at least have created the possibility of receipt of funds when any deals

came to fruition.

[149]

Nor do I find that the fact that only one player was sold during the January transfer

window ought to have been regarded as an indication that there would be no demand for

other players a few months later. As Mr Pethybridge noted in his report, the main transfer

window is the summer window. I accept his analysis that clubs who buy players in the

January transfer window are likely to be panic buying because they are either in a relegation

spot or trying to push for promotion, and that this gives no reliable guidance as to the

marketability of the members of the Rangers playing squad.

[150]

For the sake of completeness, I should add that I reject the noters' alternative

argument that even if the respondents had been entitled initially not to pursue a strategy of

active marketing of players, this changed in early April when they became aware (i) that the

level of "best and final" bids received did not indicate that substantial value was being

attributed by bidders to the squad of players; (ii) that the bid by Mr Miller was based on a

sale of the business and assets, opening up the risk that players would decline to transfer to

the new company; and (iii) that such a risk existed, this having been made clear to them by

Mr Wishart. There is no evidence that the respondents conducted such a review but, as

Mr Pannick pointed out in his report, and as Mr Pethybridge agreed, the prospect of

becoming free agents would enhance the players' bargaining strength and render it less

likely that they would agree to a transfer for a fee. It follows, in my opinion, that if the

respondents had taken advice on, and given proper consideration to, the possibility of

actively marketing players for sale during April and May 2012, it would have been open to

them at this time to decide that there was no realistic prospect of achieving any sales and that

there was therefore no point in changing strategy.

[151]

What, then, would have been the likely outcome of a proactive strategy of selling

players with a view to realising their value, at the latest when the summer transfer window

opened? In addressing this question I focus on the players listed as "marketable playing

staff", ie category (iii), in the supplementary joint minute. I exclude Allan McGregor on the

ground that with Grant Adam's contract due to expire and the possibility of Neil Alexander

being made redundant, Mr McGregor's departure could have left the club unable to field a

first-team goalkeeper. Again leaving Steven Naismith aside, the players concerned are

therefore Whittaker, Davis, Edu, Wylde, Lafferty, Aluko, Wallace and Fleck.

[152]

The primary evidence on player valuations was provided by Mr Lombardi, who took

as his starting point article 17(1) of the FIFA Transfer Regulations, which specifies the

method of calculation of compensation to be applied where a contract between a club and a

player is terminated without just cause, ie breach of contract. In Mr Lombardi's view, this

article provided the only objective and globally recognised criteria by which to calculate

compensation upon a player changing clubs (whether in contentious or non-contentious

circumstances) and therefore, ultimately, for assessing a player's value. Article 17(1)

required the calculation of compensation to take into account, inter alia, "the specificity of

sport" and any other objective criteria, including the remuneration and other benefits due to

the player under his existing contract, the time remaining on the existing contract up to a

maximum of five years, the fees and expenses paid or incurred by the former club (amortised

over the term of the contract), and the remuneration and other benefits due to the player

under his new contract. Similar criteria were to be found in Schedule 6 to the standard SPL

players' contract.

[153]

Mr Lombardi recognised that article 17(1) was specifically applicable to compensation

for breach of contract, and that in Schedule 6 to the SPL contract the relevant provisions were

expressly disapplied to non-contentious player transfers. He nevertheless considered that

they had to be taken into account when valuing a player. This view was supported by the

consistent jurisprudence of the Court of Arbitration for Sport and the FIFA Dispute

Resolution Chamber. The method had been used, for example, in 2006 when a player (Andy

Webster) had breached his contract with Hearts to move to Wigan Athletic. The requirement

to have regard to the specificity of sport allowed certain subjective elements, such as

performance and a player's role in the club, to be taken into account.

[154]

Applying the valuation criteria to the Rangers players, Mr Lombardi considered that

a discount of around 40-50% was appropriate because the company was in administration.

This recognised the weakened bargaining position of the seller where the transfer window

was not open, so that competition for the acquisition of players was reduced, and the risk

that the players might choose, in the event of liquidation, not to transfer to the new company.

At paragraphs 9.21 and 9.23 of his report, Mr Lombardi included what seem to me to be

important acknowledgments:

"9.21 For the sake of clarity, I wish to re-confirm that this approach to valuation

calculates a value, which would reflect the compensation required to induce the Club

to transfer the player to another club. In my opinion it is impossible to assign a

valuation of a player from the point of view of a potential purchaser in general, as

clubs who wish to sign a player have a unique set of circumstances which influences

their purchasing strategy, or their thoughts about individual players.

...

9.23

From the point of view of the purchasing club, a player is therefore worth

what such prospective new club is prepared to pay for the player."

(Emphasis in original.)

In his valuation of each of the members of the Rangers playing squad, Mr Lombardi began

by calculating a value produced by applying the article 17(1) criteria. In some cases, he then

adjusted that value up or down to take account of "notable specific circumstances". In the

case of players who would be out of contract in the summer, he reduced the value to nil. In

the case of others, he applied a discount which in most cases was of 50%. For the players

listed above, this produced the following valuations after the discount:

Whittaker

£2,597,859

Davis

£4,068,548

Edu

£714,192

Wylde

£483,526

Lafferty

£1,500,000

Aluko

£1,500,000

Wallace

£2,076,161

Fleck

£500,000

[155]

Mr Pethybridge considered that Mr Lombardi's method was a reasonable way of

approaching valuations and afforded a useful starting point, but not the final value. The

actual price for a player would only become apparent after going to market. He considered

that there was a high possibility of sale of Davis, Edu, Lafferty and Aluko, a medium to high

prospect of sale of Whittaker and Wallace, and a medium prospect of sale of Wylde and

Fleck. He did not propose different valuations in respect of any of the players.

[156]

Mr Pannick's opinion was that there was no single objective way of valuing a player.

He agreed that the factors identified by Mr Lombardi were relevant but there were many

others. He did not agree that the article 17(1) method was useful in non-contentious

circumstances. It did not take account of the fact that a club in administration was a more-

than-willing seller, or of player power, or of the ability of the prospective purchaser simply

to walk away. In his experience, no selling or buying club had used this method to value a

player. It was not even useful as a starting point. The only way to assess a true valuation

was to see what a buyer was willing to pay, and even that valuation approach was

conditional on the player agreeing to the transfer to the bidding club. He did not offer his

own valuations of the players listed above. He accepted in cross-examination that his

starting point would be his own subjective view of what the player was worth.

[157]

I regret that I have not found the valuation method adopted by Mr Lombardi to be of

assistance in the circumstances of this case. I readily accept that it is a carefully crafted

method of valuation for use in the circumstances for which it is designed, namely dispute

resolution. I also acknowledge that it is the only objective method of valuation suggested by

any of the experts in this case. But the essence of dispute resolution, as opposed to

negotiation, is that having become bound to participate in the dispute resolution procedure,

neither party can simply decide to walk away. As Mr Lombardi fairly acknowledged, the

article 17(1) method takes no account of the value of the player from the point of view of the

prospective purchaser. Mr Pethybridge's support for use of article 17(1) was expressly

qualified: he emphasised that he saw it as a starting point, although he did refer to

Mr Lombardi's discounted values in his assessment of the likelihood of sale of each of the

players, and did not offer alternative values of his own.

[158]

My concern as to the appropriateness of the article 17(1) method to the valuation of

players generally is heightened for two reasons. Firstly, although Mr Lombardi placed

importance on the objective nature of the method, he himself found it appropriate, for

reasons explained in his report and unrelated to the club being in administration, to

substitute subjective assessments in respect of a number of players, including, in the list

above, Aluko, Lafferty and Fleck. He also found it appropriate to apply discounts of 40-50%

in recognition of the reduced bargaining power of a club in administration. It is not in

dispute that a discount is appropriate but the percentages selected by Mr Lombardi appear to

me to rest entirely upon his own assessment. For these reasons I am unable to regard the

valuations produced by his method as having a truly objective character.

[159]

Secondly, my confidence in Mr Lombardi's figures is diminished by the striking

difference between them (before the discount for administration) on the one hand, and, on

the other, the valuations provided by five individuals with relevant knowledge and expertise

in the January schedule, which were not discounted for administration. Although there are

significant differences among the valuations of the four agents and the chief scout, including

one or two notable outliers, they are generally closer to one another than to Mr Lombardi's

valuations. In relation to certain players, including Aluko, Whittaker and Wallace in the list

above, even Mr Lombardi's discounted value exceeds the highest valuation of any of the

consulted individuals. Although there is less or no difference in relation to certain other

players, the very large differences in some cases is, in my view, an indication that use of the

article 17(1) method cannot be relied upon to produce results that reflect the likely sale prices

of the club's marketable players during the administration period.

[160]

Having rejected Mr Lombardi's methodology, I am left with limited material with

which to make my own assessment. The respondents did not obtain a contemporaneous

valuation of the players which took account of the effect of the company being in

administration. The best evidence I have is therefore the January schedule, subject to the

adjustments that have to be made for the company's administration and the events that

occurred as a consequence.

[161]

In carrying out my calculation, I have made two assumptions. Firstly, I have

assumed that sale negotiations would have been carried out against the background of the

wage reduction agreements actually reached, including the buy out clauses, and that

potential purchasers would be aware of the latter. It would not be consistent with my

decision (above) that it was reasonably open to the respondents to pursue the wage

reduction route to assume sale negotiations that did not take account of the agreement.

Secondly, I have assumed that regardless of the market interest created, not all of the players

would have been sold. I am satisfied, having regard to the number of (non-marketable)

players who were out of contract in summer 2012, that there would have been a real risk that

sale of all of the eight players in the list, in addition to Steven Naismith, would have left the

company in difficulty in fulfilling its obligations if the administration had continued into the

following season, and adversely affected the value of the company to potential purchasers. I

therefore proceed on the basis that if the respondents had succeeded in effecting up to four

sales of the eight players in the list, they could reasonably have decided to go no further and

to terminate any other negotiations in progress.

[162]

With those assumptions in mind, my calculation proceeds as follows:

(i)

I have calculated an approximate average valuation of each of the eight

players from the January transfer window list, discarding only one "outlier" (in the

valuation of Aluko);

(ii)

I have adopted Mr Lombardi's 50% discount to recognise the reduced

bargaining power of the club in administration;

(iii)

In relation to those players who agreed buy out clauses containing a figure

lower than the discounted valuation calculated at (ii), I have substituted the amount

in the buy out clause;

(iv)

I have reduced the total of the eight valuations thus produced by 50% to

reflect my assumption that no more than four players would be sold;

(v)

I have reduced the resulting figure by 15% (as proposed in the respondents'

submissions) as an allowance for agents' fees and solidarity payments;

(vi)

I have then reduced the resulting figure by a further 50% as a "loss of a

chance" reduction, to reflect uncertainty as to whether sales at the discounted/buy out

valuation would be made, including uncertainty as to whether the players concerned

would decline to transfer, either because they wished to remain at the club, or

because they wished to retain the possibility of transferring as a free agent on

liquidation.

[163]

The calculation of loss thus produced is as follows:

Player name

Average value

per January

schedule £

50% of average

value £

Buy out

clause £

Lesser of column 3

and column 4

where applicable £

Davis

4,800,000

2,400,000

1,650,000

Aluko

250,000

125,000

Whittaker

2,000,000

1,000,000

850,000

Wallace

1,200,000

600,000

Lafferty

2,000,000

1,000,000

575,000

Edu

1,000,000

500,000

300,000

Wylde

700,000

350,000

N/A

350,000

Fleck

300,000

150,000

N/A

150,000

Total

4,600,000

Whereof one half sold

£2,300,000

Whereof 85% after deduction of agents' fees etc

£1,955,000

Whereof 50% for loss of a chance

£977,500

[164]

I therefore find the noters entitled to compensation amounting to £977,500 in relation

to the respondents' breaches of duty in relation to failure to market players for sale. I make

no additional allowance for salaries paid to the player or players sold, because I regard it as

more likely than not that the company would have retained liability for their salaries until

registration with the purchasing club could have been effected when the transfer window

opened. I should also confirm, for the avoidance of doubt, that my finding will not affect my

assessment of the noters' second chapter of arguments addressed below, because I do not

consider that the value of the company would have been materially affected by the sale of

between one and four players (as the case may be) in the table above, whether or not

accompanied by the redundancies among playing staff that I have found could have been

made as an alternative to wage reductions.

Steven Naismith

[165]

In my opinion the respondents were in breach of duty in failing to decide to accept

the final offer of £1.7 million made on 13 April. As Mr Shipperlee calculated at the time, the

offer to relieve the company of Mr Naismith's wage bill meant that the offer was worth

about £1.85 million, as compared to the figure of £2 million in the buy out clause which in

practical terms was the highest amount for which the company could have sold the player.

Indeed the gap was slightly smaller because if Mr Naismith had been sold for £2 million, a

sell-on fee of £20,000 would have been payable to his former club, Kilmarnock FC. When one

bears in mind the risk (of which the respondents were aware by 13 April) that in the event of

there being no CVA Mr Naismith's value could be lost altogether, as in fact occurred, I can

see no good reason for waiting to see if an offer worth, in effect, an additional £130,000

would be made. Mr Buchler defended this as a "close judgment call", on the ground that it

would have made the company a less attractive prospect to purchasers if one of its most

valuable players were sold. This ignores the fact that Mr Naismith's availability to a

purchaser could not be guaranteed if a CVA could not be achieved. I accept the opinion of

Mr Christie that the respondents' decision not to pursue this sale more vigorously cannot

have been in the best interests of the creditors, because a successful sale would have

recovered cash value, reduced trading costs and had no material impact on any going

concern sale.

[166]

Parties were in dispute as to the basis upon which any loss caused by the

respondents' failure to accept the WBA offer ought to be assessed. The noters contended that

this was a straightforward loss of the sum offered, and not the loss of a chance. There was an

actual offer. It was possible to complete the sale. The prospect of Mr Naismith not accepting

the move was remote: Mr Ashworth had spoken to Mr Naismith's agent; the

contemporaneous view was that the agent was orchestrating a move to the Premier League.

If Mr Naismith had not been prepared to move, it was unlikely that the agent would have

been encouraging bids. There was evidence of the relative attractiveness of a move to the

Premier League in financial and career terms. Mr Naismith had not said that he would have

been unlikely to move or that he would have refused to move.

[167]

The respondents submitted that this was properly to be approached as the loss of a

chance. Three factors required to be taken into account: the prospects of the regulatory

authorities acceding to the proposed deal; the prospect of Mr Naismith and WBA reaching

agreement; and whether Mr Naismith would pass a medical. Mr McKinlay's evidence was

that he did not know how the proposed deal would work outside a transfer window.

Mr Naismith had been reluctant to commit himself on the hypothetical question of whether

he would have been agreeable to the move. Mr Ashworth's evidence was unsatisfactory: he

had provided no reasonable explanation of why WBA had not been prepared to increase

their offer to £2 million which, as he was aware, would have triggered the buy out clause.

His explanation that WBA preferred to wait and assess Mr Naismith's injury in three

months' time was illogical.

[168]

I accept the respondents' submission that the noters' loss in respect of the failure to

sell Mr Naismith to WBA is properly categorised as the loss of a ch ance. I do not attach any

weight to the risk that a sale might have been precluded by either English or Scottish football

regulations. Mr Ashworth had confirmed that the deal could be done so far as the Premier

League and FA were concerned. There was no evidence that it would have fallen foul of SPL

or SFA regulations so long as registration as a WBA player was deferred until the next

registration period, which is what Mr Ashworth proposed. It was not suggested that the

question of which club paid Mr Naismith in the meantime had regulatory implications. Nor

do I attach weight to the risk that he might have failed a medical examination. Mr Ashworth

was well aware of the injury that was expected to prevent Mr Naismith from playing for the

remainder of the 2011-12 season. It would be speculative to allow for the possibility that the

player might have had some other medical problem that would have precluded the transfer.

[169]

I do, however, accept the respondents' submission that even if the offer of £1.7 million

had been acceptable to them, it was far from certain that the sale would have proceeded to

completion. This appears to me to be a case clearly falling within the second category

identified in Gregg v Scott and Perry v Raleys (above), as being dependent upon the actions of

third parties, namely Mr Naismith and also, to some extent, Mr Ashworth. Despite the

apparent involvement of his agent in promoting the deal with WBA, Mr Naismith might

have decided (or been advised) to keep his options open for a few weeks longer. If the

members of the SPL had decided to allow the transfer of the company's share to Sevco, he

might have chosen to transfer under TUPE and remain with Rangers. I have no evidence of

the personal terms that WBA might have offered him. I agree also that Mr Ashworth's

explanation for not offering a further £300,000 in order to trigger the buy out clause is

difficult to understand. Either Mr Naismith would have been almost as much of a bargain at

£2 million as at £1.7 million or (because of his injury) he would not have been a bargain at

either price. I am left with some doubt as to whether WBA were fully committed to the

purchase.

[170]

On the other hand there are reasons why the chance should not be assessed at too low

a level. It was not in dispute that a move from Rangers to the English Premier League was

an attractive one for a player like Mr Naismith, or that he was likely to earn considerably

more there. WBA's interest was more than passing: they increased their bid three times in

attempts to reach an acceptable figure. Having regard to all of the above, I conclude that 50%

is an appropriate percentage to apply.

[171]

It was submitted on behalf of the respondents that deductions fell to be made from

the transfer fee in respect of a solidarity payment (£68,000) and agent's commission

(£170,000), leaving a balance of £1,462,000. On the face of it, however, this was an unsolicited

approach by WBA. Mr Naismith's agent may well have been in contact with WBA but there

was no clear evidence that the circumstances would entitle him to a commission payable out

of the transfer fee. Deduction of the solidarity payment alone leaves a balance of £1,632,000.

To this falls to be added the (reduced) salary saved if WBA's offer had been accepted by the

deadline of 17 April which, using the salary figure in the supplementary joint minute, would

have amounted to about £22,000, bringing the total up to £1,654,000. 50% of that figure

is £827,000.

[172]

I therefore find the noters entitled to compensation amounting to £827,000 in relation

to the respondents' breaches of duty in relation to failure to accept WBA's offer to purchase

Mr Naismith for a fee of £1.7 million.

The noters' claim: (ii) failure to obtain best possible sale price

Introduction

[173]

The noters' case that the respondents were in breach of duty in failing to obtain the

best possible sale price of the business and its assets had three strands: (i) failure to obtain

advice as to the value of the Rangers brand and to realise its value; (ii) failure to investigate

possible means of maximising the sale value of the company's heritable property, and to take

steps such as sale and lease back of Ibrox stadium and sale of Murray Park that would have

led to a greater realisation of value for creditors; and (iii) failure to take steps to secure the

availability to a potential purchaser under a CVA of the shares in the company controlled by

Craig Whyte. There are further contentious issues in relation to whether in any calculation

the sum received for the sale of the business and assets ought to be reduced to take account

of (a) the value of commercial revenues that were claimed to be owed to the company by the

SPL and (b) the value of a debt due to the company by its subsidiary Rangers Youth

Development Limited ("RYDL").

Value of the Rangers brand

The joint administrators' approach

[174]

The respondents were aware that there was value in the Rangers brand and in the

company's intangible property. The Information Memorandum for prospective purchasers

released on 19 February began by stating: "Founded in 1872 and based in Glasgow, Rangers

is one of the most successful and most recognisable football brands in the world", and went

on to emphasise the global nature of the club's fan base. The company's registered

trademarks were detailed in a schedule. In terms of the Memorandum of Offer prepared on

15 March, indicative offers by prospective purchasers were required to include a breakdown

showing sums attributed to, inter alia, goodwill, brand/intellectual property, and

trademarks.

[175]

It is agreed that the respondents gave consideration to obtaining a valuation of the

Rangers brand but took the decision not to do so. According to a note made by Mr Grier of a

meeting with representatives of HMRC on 9 March,

"DW [ie Mr Whitehouse] accepted that there may be value in naming rights and the

Rangers Brand and would arrange a Brand valuation.

HMRC asked for a Brand valuation but also commented that the Brand has

significant `baggage' with recent fines and sanction from UEFA and the SFA."

Mr Walder identified a brand valuation specialist within D&P (Mathias Schumacher), and

emailed him on 14 March, stating:

"We will need the brand valued on a going concern basis i.e. on a normalized basis

discounted significantly as the company is in Administration.

We will also need the brand valued on a Liquidation basis i.e. what a purchaser

would pay for the brand if the club ceased playing football and the brand was sold."

[176]

Mr Schumacher's work, however, proceeded no further than the drafting of an

engagement letter. On 16 March, Mr Saunders emailed him to say:

"Thanks for putting together the EL at such short notice. I'd be grateful if you could

just hold off on starting any work on this matter as it was at the request of a major

stakeholder in the business and now may not be necessary. We will let you know

when we find out."

The instruction to put the valuation on hold appears to be the result of a decision taken by

the respondents during a team conference call on 15 March to "tell HMRC [that a brand

valuation] won't mean anything ultimately". The matter was not raised again.

Expert evidence

Expert evidence for the noters

[177]

Expert evidence was given on behalf of the noters by Mr Thayne Forbes, director of

Intangible Business Ltd, a brand valuation and strategy consultancy founded in 2001. He

was asked to advise on the value of the Rangers brand as at 14 February 2012.

[178]

Mr Forbes noted that the club's revenues derived from four key segments: revenues

on match days, such as sales of tickets; sponsorship and advertising, such as from shirt

sponsors; commercial and retail activities, such as merchandising; and UEFA and other

prize money, as a result of competing successfully. In his view the Rangers brand played a

key role in generating these revenues and was highly valuable.

[179]

The appropriate basis of valuation in this case was market value, ie the estimated

amount for which an asset or liability should exchange on the valuation date between a

willing buyer and a willing seller in an arm's length transaction, after proper marketing and

where the parties had each acted knowledgeably, prudently and without compulsion. The

main approach to be employed was the income approach, based on converting future

economic benefits into a present value, applied using a discounted cash flow ("DCF")

method. Using the cash flow forecast in the Information Memorandum produced by the

respondents, this produced the following valuations for the Rangers brand:

As a going concern

£38 million

In administration

£20 million (47.4% discount from going concern)

In liquidation

£8 million (78.9% discount from going concern)

Mr Forbes supported the going concern value by cross-referring to other valuation methods

producing a similar result. The assumptions made for the valuation of £8 million on

liquidation were that the company would have been liquidated, the team disbanded, and

Ibrox and Murray Park sold for alternative uses, with the brand being purchased as part of

an attempt to resurrect the club.

[180]

In Mr Forbes' opinion, a normal sale process for the Rangers brand would have

identified a number of potential buyers prepared to pay for the brand at levels around the

values in his report, so long as it came with access to Ibrox and the football team. He

considered that the Information Memorandum was insufficiently detailed, and that more

effort should have been made to follow up expressions of interest in purchases of assets on a

piecemeal basis. Mr Forbes noted that in the audited accounts of Rangers International

Football Club plc (the acquiring company) for the year to 30 June 2013, the Rangers brand

was valued by independent valuers (Jeffreys Henry) at £16,042,000, as at 14 June 2012.

[181]

In the course of cross-examination, Mr Forbes confirmed that in order properly to

market the brand, a period of 6 to 12 months would be required, with the consequence that

the administration would have required to continue into the following season.

[182]

Mr Christie considered that the respondents ought to have obtained an independent

and objective professional valuation, by a suitably qualified independent third party, of the

brand value, including an assessment of the options available to maximise recoveries from

this asset. The reason was to provide creditors and other stakeholders with confidence and

evidence that appropriate value had been realised. He did not consider that a valuation

carried out by the respondents' own firm would be sufficiently independent, and would not

be normal practice. It was beyond the scope of his knowledge to comment in detail on

Mr Forbes' valuation.

Expert evidence for the respondents

[183]

Expert evidence was given on behalf of the respondents by Mr Andrew Wynn, a

senior managing director in the London office of FTI Consulting LLP, a global business

advisory firm, specialising in, among other things, litigation support and economic and

financial analysis, including intellectual property valuations.

[184]

Mr Wynn's opinion was strikingly different from that of Mr Forbes. He did not offer

a brand valuation of his own because he had not been instructed to do so. Instead, his

reports consisted of criticism of Mr Forbes' methodology and conclusions. He did not

consider that there was anything in Mr Forbes' report that demonstrated that the Rangers

brand was sold by the respondents for less than its market value.

[185]

The Rangers brand was inextricably linked to the Rangers football club; its value

derived from the ongoing activity of playing professional football and could only be

preserved as long as the club continued to play football. Realistically, the brand would only

ever be sold in combination with the rest of the club. The market value of the brand

therefore had to reflect the value that could be achieved in a sale in combination with the

club. It had to reflect both future financial benefits from exploiting the brand and all the

associated investments required to maintain the competitive performance of the club.

Mr Forbes' analysis ignored the substantial costs which had to be incurred to generate the

expected revenue of the club. His assessment did not represent a market value of either the

club or the brand.

[186]

Mr Wynn made further detailed criticisms of Mr Forbes' approach. The cash flow

forecast in the Information Memorandum was not an appropriate estimate of an investor's

expectations for the business's future performance. Mr Forbes had made arbitrary

assumptions about the rate of recovery of the business following upon administration and

liquidation. His assessment of the discount rate was non-standard, including adjustments

for "specific risk" which were an attempt to compensate for his implausibly high forecast

cash flows. The Jeffreys Henry valuation for the 2013 financial statements provided no

support for Mr Thayne's brand valuation: the Jeffreys Henry assumptions should have

resulted in a higher value if applied to the same cash flows. Mr Forbes' estimate of cash

flows must therefore have been materially higher than assumed by Jeffreys Henry.

[187]

Mr Buchler's view was that the respondents' conduct was consistent with the

standard of an ordinarily competent administrator. They had approached the open market

for an indication of brand value, rather than adopting a theoretical and hypothetical

approach. In his view, that was reasonable. It was not clear what substance a brand

valuation would have added to the respondents' approach.

Assessment

[188]

The starting point of the noters' criticisms was, once again, that the respondents had

been in breach of duty by failing properly to inform themselves by obtaining a brand

valuation from an independent expert. It was submitted that obtaining a brand valuation at

the outset of the administration would have made three key differences: it would have

allowed a more confident assessment of whether the bids received for the company

represented appropriate value for the basket of assets being sold; the respondents would

have been in a better position to negotiate with bidders and avoid the downward spiral in

bids which occurred; and it would have obliged them to confront the issues that faced them

in considering the objectives of administration and to acknowledge that if liquidation

produced a better outcome for creditors than the available offers, it would have been

necessary either to take that route, however unpalatable it was, or to consider an alternative

strategy of disposal of individual assets.

[189]

There was no evidence that it would be normal practice in a football club

administration to obtain a brand valuation. Such evidence as there was, including that of

Mr Clark and Mr Whitehouse, suggested the contrary. Although Mr Christie and Mr Buchler

agreed in principle that it would be normal practice to obtain valuations of valuable assets,

Mr Christie cited no examples and had no personal experience of this being done in relation

to the brand of a football club in the course of an administration. Mr Forbes' experience

consisted of having given advice in 2014 on the value of overseas football club brands for

proposed privatisation. The "key differences" proposed on behalf of the noters do not

appear to me to amount to exceptional circumstances which might lead to the conclusion that

normal practice required to be departed from in the case of the Rangers administration. That

being so, it would be difficult for me to conclude that the respondents were in breach of their

duty in failing to do so. I can go further, however, because I am satisfied on the basis of

Mr Wynn's evidence that no loss was sustained as a consequence of any failure by the

respondents to obtain a brand valuation.

[190]

A difference of opinion emerged between Mr Forbes and Mr Wynn as to whether the

Rangers brand was inextricably linked to the Rangers football club. Mr Wynn considered

that it was; Mr Forbes's view was that ownership of the brand did not require ownership of

assets such as properties and a team; the brand would then have a value separate from the

club. I find Mr Forbes' view difficult to accept. It is common ground that part of the value of

the brand is to be found in its availability for licensing in marketing and sponsorship. I agree

with Mr Wynn that in the case of a football club the value of the brand lies in its relationship

with the club which plays football and therefore attracts supporters. As Mr Wynn observed

in his supplementary report, that relationship would not automatically transfer to a third-

party buyer who acquired the brand separately from the rest of the club. Instead, fans would

be likely to transfer their allegiance to whatever club they perceived to be the legitimate

successor to the club they supported, regardless of legal rights. The removal and re-naming

of Wimbledon FC in England affords an example of a situation in which the fans' allegiance

did not transfer. If in the present case the respondents had attempted to sell the Rangers

brand as a standalone asset, I agree with Mr Wynn that it is unlikely that it would have been

perceived as having a value of the order of £8 million. As he observed, there would be a

significant risk to the buyer of the brand that the club's fans would decide that another entity

was the true successor and transfer their allegiance accordingly, leaving the purchaser of the

brand with a largely worthless collection of legal rights. For these reasons I accept his

opinion that, realistically, the brand would only ever be sold in combination with the rest of

the club.

[191]

One matter on which Mr Forbes and Mr Wynn appeared to agree was that the value

of football clubs to their owners and prospective purchasers is not directly linked to

projections of profitability. In his supplementary report, Mr Forbes noted:

"... (F)ootball clubs generally have significant value even if they are not profitable.

This is because they are unique assets that attract significant commercial and

emotional value from the passionate loyalty of their fans, and not because of expected

profits. The Rangers Brand's value derives from the loyalty of 5m Rangers fans

worldwide who have built up an allegiance to the brand over many years.

Such football clubs and their respective brands are valuable, not because of the profits

or losses they make, but because they possess trophy value, influence value, and

emotional value for their owners. Such owners are proud to own clubs that are

revered by so many fans across the world and allow the owners to mix with the

European elite in football. This is why many such football clubs have been purchased

for in excess of £100m, and have then still required further funding to support

subsequent losses. They would not have fetched that if there was a disconnect with

the brand, as they would then not own the most important asset that enables a club to

operate at these levels.

Football clubs and their brands generally have significant values even though the

clubs generate losses. In general terms they make losses because funds generated are

applied for the purpose of playing football ..."

In my opinion these observations are consistent with Mr Wynn's view that account must be

taken of the substantial costs that must be incurred to play professional football, and that

Mr Forbes' DCF methodology fails to do so. I agree with Mr Wynn's opinion that the

"specific risk" adjustments that Mr Forbes considered it appropriate to make to his DCF

calculations are indicative not of fine-tuning but suggest rather that they have been unable to

produce a credible result.

[192]

There are no doubt circumstances in which it is appropriate to carry out a valuation

of the brand of a football club: for example, in order to comply with financial reporting

standards when preparing the company's annual accounts. I am not, however, persuaded

that instructing and obtaining a value of the Rangers brand in the context of this

administration would have served any useful purpose. I have accepted that the value of the

brand was inextricably linked to the value of the business as a whole. I also accept

Mr Wynn's conclusion that the price any investor would be willing to pay for the brand in

combination with the club would reflect their expectation of both future financial benefits

including those from exploitation of the brand and the associated required investments and

unavoidable costs, and that accordingly it does not make sense to value the economic

benefits associated with the brand without considering the costs required to generate them.

[193]

It follows that I also reject the proposition that the respondents ought to have done

more to bring the value of the brand to the attention of prospective purchasers. As was

stated in the Information Memorandum, Rangers is one of the most recognisable football

brands in the world. As a matter of fact the sale did attract interest in North America and

Asia. Prospective bidders would have needed no education regarding the opportunities

available to an owner of the club through exploitation of the brand. There was no evidence

to suggest that there would have been other prospective purchasers if only they had been

aware of the true value of the Rangers brand, or that those who did bid would have been

persuaded to increase their bids by many millions of pounds if they had been provided with

a valuation along the lines of Mr Forbes' report. I have already rejected the contention that in

the event of a piecemeal sale of assets on liquidation, it is likely that a sale of rights to the

brand would have realised £8 million.

[194]

For these reasons I hold that no breach of duty was committed by the respondents in

relation to brand valuation.

Heritable property

The joint administrators' approach

[195]

The respondents' approach to the company's heritable property (ie Ibrox Stadium

and its adjacent car park, and Murray Park) was directed by their view that the best price for

the company or its business was likely to be achieved by selling all of its assets together as a

going concern. As already noted, the respondents instructed and obtained valuations by

LSH of Ibrox Stadium and the Albion Car Park and of Murray Park. They did not seek

specialist advice on available options for realisation of the value of any of the heritable

property separately from the sale of the compan y's business and other assets, and did not

take any active steps to market any of the heritable property separately. In the course of

cross-examination, Mr Clark observed that if any credible offers for Murray Park had been

received, they would have had to be pursued, but no such offers were received.

Mr Whitehouse, however, considered that the training facility at Murray Park was integral to

the club and that it was highly unlikely that a decision would have been taken to sell it

separately.

[196]

Expressions of interest in acquisition of the company's heritable property were

received during the administration period. On 15 February, DTZ contacted the respondents

with an expression of interest in purchasing Murray Park. They were told by Mrs Bell that

the respondents' strategy was to sell all of the company's assets as a going concern, but DTZ

would be informed if anything changed. There was no further contact. On 1 March,

McGrigors LLP contacted the respondents on behalf of a client with an expression of in terest

in Murray Park. They were given the same answer and again there was no further contact.

[197]

Over a lengthier period, contact took place with a Mr Steven McKenna and his

business partner Mr Allan Stewart. At a meeting with Mrs Bell on 6 March, Mr Stewart

spoke of offering £8-10 million for land at Murray Park. On 3 April, Mr McKenna's solicitor

emailed Mr Walder to say that they had "Heads of Terms agreed for the proposed sale of

22 developable acres of ground at the above site at a resultant price of £10 million".

Mr McKenna's offer would be conditional on the granting of planning permission, with

deferred payments, and 15 acres of land would remain available for training purposes. The

respondents had concerns over the credibility of the offer, especially in relation to planning

and title restrictions. Murray Park lay within a Green Belt area and was subject to title

conditions prohibiting its use otherwise than as a sports ground without the written consent

of the neighbouring proprietors and a charitable trust. No proof of funding was provided.

On 17 April Mr McKenna emailed Mr Walder intimating various possible deals. Mr Walder

replied on 23 April, stating that the respondents were "seeking to sell the business and assets

as a going concern at present with the preferred deal being cash on completion".

[198]

By 11 May, Mr McKenna's offer had become one for the company, with a CVA being

the preferred route. The total price would be £9.5 million, some of which would be deferred

for up to two years. Attached to Mr McKenna's email was an email from Mr Moishe

Rothbart, described as "one of our funders". That email stated inter alia:

"As mentioned, on behalf of a private client we are prepared to submit an offer on the

following:

Ibrox Stadium Car Park Murray Park Training Ground. The offer would be on the

basis of purchasing the above for a 12% net initial yield (£14.185m) and leaseback the

Stadium and car park to the club for a period of 20 years at an annual rent of circa

£1.8m per annum. Rents would be guaranteed by (Capita Plc. In addition to) and/or

having season tickets revenue charged to the landlords. The club would be entitled to

a buy back option on the Stadium and its car park within the first 10 years based on a

purchase formula starting at £10m and increasing annually by 12%, thereafter

reverting to OMV.

Rent reviews would be instigated every 5 years with minimum uplifts of 2% or RPI

whichever the greater.

Should a proposition of this nature be of interest, our client would be in a position to

proceed with the purchase in an off shore Special Purpose Vehicle with a view of

completing the purchase within 14 days."

[199]

Mr Rothbart gave evidence at the proof. He is the managing partner of a property

financing business with a client base that he described as "only ultra-high net worth

individuals, a selection of private equity funds and institutions". The offer in his email was

an opening offer; the figures would be subject to negotiation. It was made on behalf of a

specific individual client. His understanding of the likelihood of obtaining planning

permission for development of Murray Park was informed by a letter received from a

national house building company. He had been disappointed to discover that shortly after

his offer was made, the business and assets of the company, including the heritable property,

had been effectively sold to Sevco. He had tried to renew his interest in June but to no avail.

Expert evidence

Expert evidence for the noters

[200]

Mr Keith Hutchison is a partner in Montagu Evans LLP, chartered surveyors, with

almost 30 years' experience in the Scottish commercial property market. He was instructed

on behalf of the noters to provide an opinion on various property related matters.

[201]

Mr Hutchison used the depreciated cost method to derive market values of Ibrox

Stadium and Murray Park on a going concern basis. For Ibrox, he calculated a net

replacement cost of £26.3 million, to which he added £2.7 million for the value of the land,

giving a market value on a going concern basis of £29 million. Using the same method for

Murray Park, he calculated a net replacement cost of £8.15 million, to which he

added £550,000 (a modest rate reflecting the current open space use and Green Belt location),

producing a market value on a going concern basis of £8.7 million. However, with the

company in a "distressed" situation, he considered that the maximum total amount that

could have been realised from the sale of the heritable property was somewhere between

£13.8 million (£10.2 million for Ibrox Stadium and £3.6 million for Murray Park) and

£26.35 million (£22.75 million for Ibrox Stadium and £3.6 million for Murray Park).

[202]

Mr Hutchison also valued the heritable property on a break-up basis, ie on the

assumption that the company ceased to trade and its assets were sold individually. On this

basis he assumed that the stadium would be demolished to enable the site to be used for

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commercial or industrial purposes. He estimated the value of Ibrox to be £3 million, and

valued Murray Park also at £3 million.

[203]

As regards Ibrox Stadium, Mr Hutchison considered that any reasonably competent

property advisor would have advised that a better option than acceptance of the Sevco offer

for the entire business would have been to separate the ownership of the stadium and the

ownership of the club via a leasing arrangement. There were two potential leasing options:

fan ownership and third party ownership. In the case of fan ownership, the club would take

a long lease (35-45 years) of the stadium on a full repairing and insuring basis. The level of

the rent "would require careful consideration". There were a number of practical issues that

would have to be addressed, such as what would happen in the event of a lease default by

the club. Having regard to the novelty of the arrangement, it would take around 6 to

12 months to set up.

[204]

In the case of third party ownership, the investor would require a commercial return.

As regards the adequacy of the tenant's covenant, it seemed likely that the club would

remain in existence and continue playing football at Ibrox under the Rangers name, albeit

there would be uncertainty over the new lease terms and rent. The long lease would have

been attractive to investors, and would have raised significantly more than the £1.5 million

allocated to heritable property in the sale to Sevco. The most likely buyer in the real world

would have been a speculative investor or a fan of the club, who would have sought to reach

agreement with the club to keep playing football at Ibrox. In both of the above scenarios it

would have been possible to include an option for the club to buy back the stadium in the

future, at a pre-agreed price. If the respondents had agreed a lease of the stadium to the

purchaser of the business of the company, and then sold the stadium to a fan ownership

body or third party investor, this could have generated between £10.2 million and

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£22.75 million. A lease followed by a sale would have allowed sufficient time for the

respondents to secure a successful sale and maximise the sale proceeds.

[205]

Murray Park was different from Ibrox Stadium in that it was not so critical to the

viability of the club. It would have been possible to sell Murray Park to a third party or

consortium of organisations, with no ongoing occupation by the club who could have found

alternative training facilities at lower cost, or alternatively with the club agreeing to lease

back only those parts of the facility that were essential to them. It might also have been

possible to dispose of Murray Park on a sale and lease back transaction if there was a desire

by the club to retain use of the property in its entirety. This could have generated sale

proceeds of around £3.6 million.

[206]

In Mr Hutchison's opinion the sum of £1.5 million allocated to heritable property in

the Sevco sale agreement grossly undervalued these assets.

[207]

Mr Christie's opinion was that the respondents' acceptance of an offer which

allocated a value to the heritable property that was below forced sale value would have been

justified only if alternative strategies had been properly considered and determined to be less

attractive. He had seen no evidence that the respondents had considered alternative

strategies, despite their being aware of the possibility of sale and lease back (or more

accurately lease then sale). As regards Murray Park, Mr Christie would have expected the

respondents to have fully explored the alternative realisation strategies with their property

advisors to ensure that the value being recovered for creditors was maximised. In his view,

no ordinarily competent administrator acting with ordinary care would have done what the

respondents did having regard to all the facts and circumstances.

102

Expert evidence for the respondents

[208]

Expert evidence on behalf of the respondents was given in a joint report by two

directors of Savills, namely Mr Alan Plumb, a director in the leisure and trade related

property team, based in Oxford, and Mr Craig Timney, head of Savills valuation team in

Scotland.

[209]

In the view of Messrs Plumb and Timney, where there is a distressed sale scenario

and there is doubt as to whether the property will have a viable future in existing use, or the

local planning position is such that there is a reasonable prospect of redevelopment of the

site into alternative use involving stadium demolition, then the appropriate method of

valuation is to undertake an assessment of value in the best and most likely alternative use.

The figure arrived at is then discounted for risk and costs of achievement.

[210]

As the spiritual home of Rangers FC, Ibrox Stadium had little or no value to anyone

else for use as a sports facility, and its only value in the market was its underlying alternative

use value. The lack of clarity around planning, design and density of future uses, together

with the need to incorporate the listed Main Stand into the development were such that the

level of uncertainty attached to any valuation would be substantially greater than for other

more mainstream asset classes or development/ redevelopment opportunities. Any opinion

of value could only have been an unsupported "guesstimate".

[211]

Although Murray Park was probably of too large a scale for most buyers, there was

likely to have been a demand at the time from gym operators for the built facilities, and from

sports clubs for the pitches and related facilities. Whilst the prospects for residential or

commercial development in the Green Belt were remote, there might have been educational

or hospitality based buyers. However, there was likely to be a greater degree of uncertainty

103

over the accuracy of the valuation than would conventionally be the case with mainstream

commercial assets, and a sale would have required a timeframe of at least 18 to 24 months.

[212]

A lease and subsequent sale of Ibrox Stadium would have raised a number of issues.

Given that some entity associated with the club would be the only realistic tenant with

current use, the landlord would be in an unattractively weak bargaining position. There

would be significant concerns regarding the strength of the tenant's covenant, with the risk

of a series of defaults in the future. A timeframe considerably in excess of six months would

have been required to secure a sale to a third party investor. There were no existing

examples of the fan ownership alternative that were comparable in scale to Rangers. It was

difficult to conceive that a fan-based group would have come forward in sufficient numbers

to render such a scheme viable. Messrs Plumb and Timney accordingly disagreed with

Mr Hutchison's view that any reasonably competent property advisor would have advised

the respondents to pursue a sale and leaseback strategy. Whilst such a strategy might have

been theoretically possible, its delivery would have been outside a timeframe consistent with

the objectives of the administration, and it was hard to understand why any property advisor

would recommend pursuing such a strategy.

[213]

Mr Buchler considered that even where an agent is appointed to advise on proper ty

matters, the strategy is ultimately the responsibility of the administrator as to how to get the

best overall value for the company. Advice relating to this overall strategy, and the role of

any heritable property within it, is outside the expertise of a property agent. Mr Buchler

would expect an administrator to seek any strategic input needed on the specific valuations,

but not necessarily to seek general advice on the strategy of realisations from property and

business as a whole. He noted the comments in the Savills report that, had they been

appointed at the time, they would not have been able to give a firm recommendation that a

104

sale at the £6 million gross break-up figure would have been achievable. Given the lack of

certainty in achieving this break-up value, combined with the holding costs involved in

doing so, it was reasonable for the respondents to pursue, and maintain their existing

strategy to realise money from the sale of these assets as part of a going concern sale. As

regards a sale and lease back option, such a strategy might have impacted upon the club's

ability to meet the SPL membership criteria. There was no evidence of a fans' group with the

resources needed to buy the stadium for its market value. Sale of Murray Park would have

necessitated the acquisition of a new training ground, which would not have been easy to

achieve quickly.

Assessment

[214]

As with other aspects of the noters' case, the first question to address is whether the

respondents were in breach of duty in failing to consider and obtain specialist advice upon

alternative strategies which included disposal of heritable property or an interest therein

otherwise than as part of a sale of the whole of the business as a going concern. Mr Clark

accepted that sale and lease back or more accurately lease then sale of the company's

heritable property was a strategy that the respondents could have considered but did not.

Neither Mr Clark nor Mr Whitehouse suggested that the concept was unfamiliar to them.

Mr Clark's position, which appeared to me to be more of an expression of his current view

than a recollection of his contemporaneous view, was that a lease and sale arrangement

could have given rise to conflicts between the future owners of the heritable property and the

business respectively, and that awareness that the respondents were pursuing this strategy

as an alternative might have scared off the going concern bidders.

105

[215]

On this issue I prefer the opinion of Mr Christie to that of Mr Buchler. The

respondents were in possession of the LSH valuation, which valued Ibrox Stadium and

Murray Park, on the most pessimistic basis, ie discontinuance of all existing uses and

disposal for development, at £3,400,000 and £4,420,000 respectively. By about the beginning

of April, when bids of around £10 million for the entirety of the company or its business were

being received, it must have been apparent to the respondents that the bidders were offering

no more than forced sale value for the heritable property. In these circumstances I accept

Mr Christie's opinion that it was their duty to explore alternative means of realising the value

of that property for the benefit of creditors, and that those alternatives included (i) lease and

sale of Ibrox Stadium; and (ii) sale of all or part of Murray Park, with or without a lease back

of all or part of it. The existence of such a duty became, in my view, all the more apparent as

the level of bids continued to fall during April and early May. I do not go so far as to say

that the respondents' duty necessarily extended to obtaining independent advice on a lease

and sale option; it would have been a matter for them, having decided to explore that

alternative, to judge whether such advice was required.

[216]

I reject Mr Buchler's contrary view for a number of reasons. It appears to proceed to

some extent on the basis of Savills' opinion, which was not of course available to the

respondents. It fails to address the possibility of exploring a lease and sale option in parallel

with the favoured option of sale as a going concern by a CVA. The concern he expressed

regarding SPL membership criteria appears to have no solid foundation.

[217]

In relation to Ibrox Stadium, it cannot, in my view, be maintained that the

respondents were in breach of duty in failing to pursue the fan-based option. As

Mr Hutchison acknowledged, this would have been a novel arrangement; Mr Timney

described it as "pioneering". It was not negligent, in my view, for the respondents not to

106

explore a strategy that had never been implemented successfully in connection with a

football club comparable to Rangers. In any event there was little evidence to suggest that

such a strategy would have appealed to the club's supporters. Mr Gordon Stewart, who was

secretary of the Rangers Supporters Trust in 2012, considered that fans would have been

willing to purchase the stadium at a price higher than £1.5 million if that prevented it from

being sold to a third party investor. In his oral evidence, however, he described it as a

difficult sell, and referred to the problems that might arise if the tenant company refused to

pay rent. Mr Mark Dingwall, a longstanding Rangers supporter and fanzine editor who was

secretary of the Rangers Fans' Fighting Fund, formed in March 2012, was similarly

unenthusiastic, describing separation of ownership of the stadium from the club as a last

resort to save the club. The fans' preference was to support the prospective purchaser whose

acquisition they perceived to be in the best interests of the club going forward. For my part I

can envisage difficulties arising if disputes were to arise between a fan based owner of the

stadium and a future owner and operator of the business of the club. Although as I note

below the possibility of sale of the stadium to a fan based owner may have had some

relevance in the context of negotiation of a sale to a third party investor, I reject the

submission that the respondents were in breach of duty in failing to pursue fan based

ownership of the stadium as an alternative strategy.

[218]

Turning then to the possibility of a sale to a third party investor, I accept that a

significant disadvantage of this strategy would have been that it would have prolonged the

administration while the stadium was marketed for sale subject to a lease already granted in

favour of the entity running the business of the club. I also accept that there was a risk that

adoption of this strategy would have discouraged bidders who wished to acquire the whole

assets including the heritable property. I am not, however, persuaded that this option was as

107

unviable as Messrs Plumb and Timney sought to present it. The amount realisable from a

sale would obviously depend, inter alia, upon the level of rent charged in the lease to the

tenant company. That would have been a matter of negotiation, taking account of what was

affordable, but the amount of the rental would have been known at the time when the

stadium was marketed for sale. Setting the rental at an affordable level would also reduce

the risk of future default, thereby strengthening the tenant's covenant.

[219]

As to whether a prospective purchaser of the club would be discouraged by being

offered a lease of the stadium rather than ownership, I agree with Mr Hutchison that with the

rental at an appropriate level it would be as affordable as the cost of outright purchase. I

further agree with him that the Savills opinion fails to take proper account of the revenue

generating potential of the Rangers fan base and of the unlikelihood of Rangers ceasing to

exist as a football club. Like Mr Hutchison, I find it difficult to understand why an

alternative use value of the property should play any part in this exercise, because the

hypothesis is that the stadium would continue to be used for playing football.

[220]

This is not the only respect in which I have found the evidence of the Savills

witnesses unhelpful. I note from their written report that their instructions did not include

the provision of valuations on any basis of the heritable property, which I would have

found useful. I find their reasons for rejecting Mr Hutchison's depreciated cost method of

valuation unconvincing because they were based upon an assumption of redevelopment of

the stadium for an alternative use, which was not what the respondents contemplated at the

time and not what Mr Hutchison envisaged in his valuation. The same applies mutatis

mutandis to their observations regarding Murray Park. I had the impression that

Messrs Plumb and Timney avoided mentioning any figures lest these be used by the noters

to assist their case. Instead, their report is framed in almost entirely negative terms, and I

108

find it to be lacking in objectivity. I regard Mr Hutchison's report as having provided a more

balanced assessment. I should note, however, that in the course of his oral evidence

Mr Plumb did agree with certain propositions put to him: for example that £1.5 million was

not an appropriate price for the heritable property; that Murray Park would have sold, in

whole or in part, as a standalone asset; and that a sale of the whole of Murray Park followed

by a lease back of part was a possibility, albeit one that might have upset a potential

purchaser of the business.

[221]

In assessing what might have been the outcome if the respondents had taken the

decision to lease the stadium to a prospective purchaser of the business, with a view to sale

to a third party investor, I also bear in mind two possible outcomes. The first is that the

prospective purchaser would have increased its offer in order to obtain ownership of the

heritable property. The second is that if the lease and sale arrangement proceeded, the

prospect of third party ownership of the stadium would have proved so unpalatable to fans

that they would after all, as suggested by Mr Stewart and Mr Dingwall, have raised funds to

acquire the stadium through an appropriate vehicle as a last resort. I do not consider that

either of those outcomes was probable, but rather that they were at least possible, so as to

affect the calculation of loss of a chance.

[222]

In deciding whether the respondents ought to have pursued sale or lease and sale

options in respect of Ibrox Stadium and Murray Park, I am influenced by the fact that in the

agreement for sale of the business and assets to Sevco, the amount notionally attributed to

the heritable property was only £1.5 million, a sum described by Mr Hutchison as derisory.

Having received advice from LSH that the value of the heritable property on a break-up basis

was £7.8 million, significantly more than Sevco were offering for the entire business and

assets (regardless of the sum subsequently allocated to heritable property), I consider, in

109

agreement with Mr Christie, that it was the duty of the respondents at least to explore

alternative strategies. It ought, in my view, to have been apparent to the respondents at least

from the time when indicative bids of around £10 million were being received, that there was

a likelihood that a sale of the entirety of the business as a going concern would not maximise

the return for creditors. Exploration of other options would have lengthened the period of

the administration, with cost implications, but in the predicament in which the respondents

found themselves, it seems to me that it was something that had to be done, and that the

respondents were in breach of their duty in failing to do so.

[223]

It was common ground that any loss attributable to this head of claim fell to be

evaluated as the loss of a chance. In making that evaluation I attach no material weight to

the expressions of interest actually received during the administration period. I accept

Mrs Bell's contemporaneous assessment that Mr McKenna was not a credible bidder. Prior

to disclosure of Mr Rothbart's involvement, Mr McKenna supplied no details of the identity

of his client and provided no proof of funds. His proposal for residential development of

Murray Park was questionable given its Green Belt location. His change in tack from interest

in purchasing heritable property to interest in acquiring the company was reasonably

considered by Mrs Bell to be odd, especially as he sought the respondents' assistance in

arranging finance. It is unclear how his offer of £9.5 million for the company would have

interacted with Mr Rothbart's offer of £14.185 million for the heritable property.

[224]

The position of Mr Rothbart is somewhat different. I accept that his offer on behalf of

a client was genuine and serious. I am not, however, satisfied that a concluded agreement

could have resulted from it. A number of its terms, including the level of rent and the

reference to a guarantee of rent by Capita plc or security over season tickets, would not have

been acceptable to the respondents and although Mr Rothbart made clear that he would have

110

expected negotiation, it is far from likely that this particular deal would have come to

fruition. It was not, as I understood the noters' argument, presented as an offer that (subject

to negotiation) ought to have been accepted, but rather as demonstrating that a lease and sale

strategy would at least have been a viable alternative. I accept that Mr Rothbart's offer

constitutes evidence to that effect while stopping short of proving, on balance of

probabilities, that an acceptable offer would have been received had the respondents chosen

to adopt such a strategy.

[225]

In quantifying the loss of a chance it is appropriate to address Ibrox Stadium and

Murray Park separately. For Ibrox Stadium, I take as a starting point the figure at the lower

end of Mr Hutchison's valuation range in a "distressed" situation, ie £10.2 million. From that

figure it is necessary to deduct the holding and selling costs that would be incurred during

the period when the property was being marketed for sale. In an estimated outcome

statement dated 28 May, the respondents appear to have allowed approximately £3.3 million

as holding costs, on the assumption that the heritable properties would be disposed of for

alternative use and would take up to two years to sell. As I am envisaging a sale of the

stadium which continued to be used for Rangers playing football, I need not make the most

pessimistic assumption. I allow £2 million as an allowance for the various costs identified by

the respondents: rates, security, insurance, marketing costs and selling agents' costs, leaving

a balance of £8.2 million. I consider it appropriate to make a further deduction in recognition

of the fact that the heritable property would not be included in the sale to the purchaser of

the business. Although I acknowledge that the figure of £1.5 million was a notional figure

attributed to the whole of the heritable property in the sale agreement with Sevco, and was

not agreed at the time when Sevco's bid was accepted, I see no reason to substitute any other

figure in this calculation. As there appears to have been no apportionment of the £1.5 million

111

as between Ibrox Stadium and Murray Park, I shall allocate one half, ie £750,000, to each.

That produces a balance in respect of the stadium of £7,450,000. This is the figure that I shall

use in quantifying the loss of a chance.

[226]

Assessment of the appropriate percentage to award for loss of a chance requires an

exercise of subjective judgment. I am satisfied that the prospects of achieving a lease and sale

of Ibrox Stadium were more than speculative and accordingly that the chance must be

evaluated. In so doing, I take account of the following factors:

A football stadium is not a standard form of commercial investment, and so

there would have been a limited number of prospective investors;

Sale of the stadium separately from the remainder of the business would

undoubtedly have been unpopular with the club's supporters, who would

have made their views known and could have further dissuaded potential

purchasers;

Although I have concluded that it was very unlikely that Ibrox would cease to

be the home of Rangers FC, there was a risk that from time to time the tenant

might encounter financial difficulties that would affect its ability to pay rent.

This prospect would affect assessments of the value of the tenant's covenant,

especially as SFA rules would have severely restricted the availability of

irritancy as a remedy for an unpaid landlord;

Having regard to all of these factors, I consider that the chance of achieving a successful sale

of Ibrox Stadium subject to a lease in favour of an entity carrying on the business of the

football club was at the lower end of the scale of likelihood. I assess it at about 10% and

accordingly find the noters entitled to compensation of £750,000 in respect of the loss of a

chance.

112

[227]

It is common ground that the prospect of obtaining a sale of Murray Park, with or

without a lease back, was stronger than that of obtaining a sale subj ect to lease of Ibrox

Stadium. Again I take as a starting point Mr Hutchison's figure of £3.6 million. In their

estimated outcome statement, the respondents made deductions for holding and selling costs

amounting to about £1 million. I am prepared to assume that a sale of Murray Park could

have been achieved within 12 months and I shall therefore allow a deduction of £500,000. On

the other hand, I note that the Scottish Sports Council held a security for £650,000 over

Murray Park which I understand to have related to a grant which would presumably have

been repayable if the subjects ceased to be used for the purposes for which the grant was

made. After deduction of a further £750,000 (the other half of the allocated £1.5 million), the

balance remaining is £1.7 million. This is the figure that I shall use in quantifying the loss of

a chance.

[228]

I have mentioned a number of possible outcomes in relation to Murray Park

outright sale; sale and lease back of the whole subjects; or sale of the whole subjects and

lease back of a part sufficient to enable the company to continue to use it as its training

ground and facilities. I am unable to select one of these possibilities as the most likely.

Having regard inter alia to the planning uncertainties, I conclude that there was a

50% chance of achieving one of them, and I therefore find the noters entitled to compensation

of £850,000 in respect of loss of a chance.

Shares under the control of Craig Whyte

The joint administrators' approach

[229]

At the time of the respondents' appointment, 85.3% of the shares in the company

were owned by RFCGL which, through its parent company (Liberty Capital Limited), was

113

effectively controlled by Craig Whyte. For the sake of brevity I shall refer to these shares as

Mr Whyte's shares. It was clearly understood at all times by the respondents that for their

preferred solution of a CVA to be achieved, there would have to be an acquisition by the

purchaser under the CVA of Mr Whyte's shares.

[230]

The respondents did not take, or contemplate taking, any steps at or prior to the date

of their appointment to attempt to obtain from Mr Whyte an irrevocable mandate

undertaking to transfer his shares to a CVA purchaser. They formed the view that Mr Whyte

was unlikely to want to be seen by Rangers supporters as the man who blocked a CVA that

would rescue the club, and that if a transfer of his shares was necessary, he would "do the

right thing", as Mr Clark put it. They accordingly maintained a co-operative relationship

with him, while bearing in mind that if they became aware of any wrongdoing on his part,

this would have to be reported to the appropriate authority. Their view was that the primary

responsibility for negotiating with Mr Whyte for the transfer of his shares rested with the

prospective purchasers, and that their role consisted of doing what they could to facilitate

such a transfer.

[231]

The respondents also took legal advice as to what, if anything, could be done to

compel Mr Whyte to transfer his shares, should he prove unwilling to do so. They received

written advice on 17 April from London solicitors Taylor Wessing, although Messrs Clark

and Whitehouse both explained that there had been previous oral discussions.

Taylor Wessing identified two possible alternatives to consensual transfer of shares:

(i)

an application by the administrators to the court for sanction of a scheme of

arrangement between the company's creditors and members, in terms of which

Mr Whyte's shares would be cancelled or ordered to be transferred. Based upon

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certain observations made by Lord Hoffmann in 2006, Taylor Wessing considered

that

"... the jurisdiction is therefore available for the scheme we desire. However,

the courts may not have sanctioned a scheme such as this before, and so it

may take some persuasion. Particularly so in the event that the application

must be made before the Scottish Courts (which is likely) as they are less

versed in scheme cases."

(ii)

An application for an administration order in respect of The Rangers FC

Group Limited. Taylor Wessing acknowledged that

"... It does not appear that Club has any liquidated claims against Group and

therefore we may face an uphill struggle to prove that there are grounds for

making an administration order ..."

[232]

Mr Whyte was kept informed of the level of bids being made by prospective

purchasers. Unknown at the time to the respondents, two of their telephone conversations

with Mr Whyte, on 1 May and 6 June respectively, were tape recorded by him, and

transcripts of the calls were among the productions for the proof. Reference was made in the

course of the 1 May call to Brian Kennedy's then current bid; one of the respondents

observed that "his is the only deal that needs your shares", and Mr Whyte replied that he

had been trying to get hold of Mr Kennedy but had been unsuccessful. Mr Whyte also

mentioned in the course of the 1 May call that he had been contacted by a group fronted by

Charles Green who were "very keen to do a very quick deal". In the course of the 6 June call,

Mr Whyte indicated that if the respondents could assist him in getting out of a personal

guarantee that he had given to Ticketus, he would do a deal with Mr Green for the sale of his

shares. In the end, of course, because a CVA did not proceed, there was no need for a

transfer of Mr Whyte's shares to anyone.

[233]

In his evidence to the court, Mr Clark stated that he did not think that Mr Whyte

would have agreed to provide a mandate as a condition of the appointment of the

115

respondents as administrators. His view nevertheless remained that Mr Whyte would have

transferred the shares to any of the prospective bidders. In the event that he had refused, the

respondents would have done what they could to take enforcement action, including

persuading the court that the matter had to be dealt with urgently if a CVA were to be

delivered. Mr Whitehouse, for his part, observed in the course of his evidence that each of

the bidders who were considered to be credible had said at various times that they had

reached an agreement with Mr Whyte for the procurement of his shares. He considered that

it had been necessary to keep Mr Whyte informed of the detail of the bids, in order to

persuade him to transfer his shares, because he was the key to unlocking a CVA. The

respondents were not negotiating with him to transfer the shares because they did not know

whether a CVA would be acceptable to the creditors and could not therefore agree terms

with him.

Expert evidence

Expert evidence for the noters

[234]

Mr Christie's opinion, expressed in his supplementary report, was that the

respondents had had no clear strategy for delivery of Mr Whyte's shares to a purchaser or at

what cost. As a result, they were effectively passing control over whether a CVA could be

achieved to Mr Whyte as he alone could determine whether (and at what cost) the shares

could be transferred to any new owner. In the absence of any agreement with Mr Whyte, the

respondents should have sought legal advice immediately on their appointment as to the

best way of securing control of the shares.

116

Expert evidence for the respondents

[235]

Mr Buchler considered that shares would always be an issue in a CVA. A risk of the

respondents seeking to finalise a deal with Mr Whyte for his shareholding might have been

that the terms of that deal would not suit the aims of some of the bidders. It was better to

enable the potential bidders to try to structure a deal with Mr Whyte which satisfied their

aims, whilst leaving open the trade sale route for bidders who did not want to deal with him

at all. There was no indication that Mr Whyte behaved in a difficult way; indeed the reverse

seemed to be true, in that serious bidders were able to reach agreement with Craig Whyte for

the transfer of shares. The respondents' strategy of attempting to keep Mr Whyte "on side"

while investigating alternative legal avenues had been reasonable.

Assessment

[236]

On this aspect of the case I find Mr Buchler's views persuasive. There was no

evidence that Mr Whyte could have been compelled to grant a mandate for the sale of his

shares as a condition of the respondents' appointment, or that there is a usual practice of

demanding such a mandate. Neither Mr Christie nor Mr Buchler had ever done so. I accept

Mr Clark's evidence that if Mr Whyte had been asked to grant such a mandate it was

unlikely that he would have agreed to do so. As Mr Buchler observed, it is not abnormal in a

CVA for an issue to arise regarding the transfer of the owner's shares. There seems to be no

reason to assume that every owner will be co-operative, or at least more co-operative than

Mr Whyte. In the circumstances of the present case, I accept that it was reasonable for the

respondents to expect prospective purchasers to negotiate with Mr Whyte (as they did),

while doing what they could to steer Mr Whyte in the direction of co-operation. It would

have been difficult for them to do this without keeping him informed of the details of the

117

bids received. In so far as bidders complained of difficulties in obtaining clarity as to the

availability of the shares, particularly in view of complications arising from the involvement

of Ticketus, those were difficulties not of the respondents' making and about which they

could do very little. The options put forward by Taylor Wessing for non-consensual

acquisition of Mr Whyte's shares were acknowledged (in my view correctly) to have very

uncertain prospects of success. I conclude that no breach of duty has been demonstrated in

relation to Mr Whyte's shares.

Conclusion regarding the bidding process

[237]

The submission on behalf of the noters draws together various alleged breaches of

duty by the respondents and alleges that, taking the respondents' failures individually and

cumulatively, they lost control of the bidding process and left themselves in a position

whereby their ability to obtain the maximum value for the company's business, or its

individual assets, was compromised. The alleged failures referred to are:

failure to make redundancies at the outset of the administration;

agreement to wage reductions rather than making redundancies;

failure to obtain a brand valuation;

failure to take advice as to alternative strategies regarding the heritable

properties, and to test the market for a lease and sale of Ibrox Stadium and/or

Murray Park, and/or a partial sale of Murray Park;

failure to obtain control of Craig Whyte's shares;

provision of information to Mr Whyte regarding the level of bids received,

which information was probably passed to Mr Green to assist him in deciding

how much to offer.

118

I have addressed all of these strands of the noters' argument individually above. It remains

to consider whether, when looked at collectively, the actions taken by the respondents in

relation to these matters compromised their ability to obtain the maximum value for the

company's business and assets. The noters invited me to conclude that the respondents lost

a real and substantial chance of securing a total amount that was around £25 million more

than the net figure paid by Sevco for the company's business, either through an increased bid

that took account of the heritable property or by realising the heritable property separately if

no bidder would pay that amount.

[238]

I am unable to reach that conclusion. In the case of the heritable property I have held

that the noters are entitled to compensation amounting in total to £1.6 million based upon the

loss of a chance principle. In respect of the other alleged failures, I have found no breach of

duty established. It is certainly the case that the price achieved for the sale of the company's

business and assets was much lower than the expectation of the respondents at the outset of

the administration. It was equally disappointing by comparison with the level of the initial

expressions of interest received.

[239]

An analysis of the reasons why such a low price was achieved is beyond the scope of

these proceedings except in so far as the reasons are the consequence of breaches of duty by

the respondents. It can at least be said, however, that the explanations given by bidders for

reducing their bids or dropping out altogether do not imply fault on the part of the

respondents. The reasons for withdrawal given by the Singapore consortium to Mr Walder

were concerns regarding deliverability of Mr Whyte's shares (and in particular the position

of Ticketus in relation to this), the tight timescale of a CVA before the start of the following

season, and, somewhat inconsistently, the length of time for which the bidding process had

gone on. I have addressed the issue of Mr Whyte's shares, and I do not find that any breach

119

of duty was committed by the respondents in relation to the other two reasons given by the

Singapore consortium. As regards the Blue Knights, the evidence supports the view held

contemporaneously by Mr Whitehouse that despite the favourable media coverage and

vociferous fan support that it received, this was never a credible bid. The reason for

withdrawal given to Messrs Clark and Whitehouse by Mr Miller's London solicitor was a

financial one: having spent time examining the club's finances, he had concluded that the

work needed for the business to break even was too substantial: again not an explanation

that implies fault on the part of the respondents. It may be that, as he suggested in the press

release announcing his withdrawal, the hostile attitude of Rangers fans to his bid also played

a part in his decision. At an earlier stage, the sanctions imposed on the club by the SFA

appear to have led to a reduction in the level of h is bid.

Quantification of the noters' claim

Introduction

[240]

In the prayer of the note, the noters invite the court to pronounce an order under

paragraph 75 (set out at paragraph 37 above) requiring the respondents, jointly and severally

or severally, to contribute the sum of £47,690,410, with interest at the rate of 8% per annum

from the date of the first order in this application (6 February 2017) until payment. As I

understand the noters' case, that sum is derived as follows:

Failure to make non-playing staff redundant

£971,386

Failure to make playing staff redundant

£443,546

Failure to market playing staff: salary saving

£570,595

Failure to market playing staff: sale value

£19,704,883

Failure to obtain higher price for business

£25,000,000

120

(By my calculation these figures add up to £46,690,410 and not £47,690,410, but this is not

ultimately of any significance.)

[241]

The figure of £25,000,000 in the above calculation for failure to obtain a higher price

for the business raises two final matters. The noters submit that in calculating the loss caused

by this alleged failure, the purchase price received from Sevco should be treated as having

been £4 million and not £5.5 million, for two reasons. Firstly, the assets sold included a right

to receive an instalment of commercial revenues from the SPL, quantified by the noters

at £1,272,546. Secondly, the assets sold included a debt owed by RYDL, quantified by the

noters at £292,000. It is submitted that because those two assets were not retained, the benefit

to the company's creditors was reduced to around £4 million.

SPL commercial revenues

[242]

Every club in the SPL was entitled to a share of the SPL's annual net commercial

revenues, often referred to as "club fees". The amount receivable depended upon the club's

finishing position in the league. The fees were paid in instalments, with a major instalment

usually being paid in about July.

[243]

The entitlement of the company to receive its instalment in July 2012 was subject to

two uncertainties. Firstly, the SPL, through its solicitor, Mr McKenzie, wrote to the company

on 6 July intimating that because the company would clearly be unable in season 2012-13 to

implement its obligations in terms of the SPL Rules, having sold all of its property and

players, it was in breach of contract. As the SPL would sustain significant loss and damage,

in part because of commercial contracts entered into by the SPL which required the

participation of Rangers in SPL competitions, it was stated that no further fees would be paid

to the company, but would instead be retained and set off against the SPL's losses. Secondly,

121

the company owed monies to certain other SPL clubs (including an £800,000 instalment of a

transfer fee due to Hearts) which, it was anticipated, might be set off against the company's

entitlement to club fees as the instalments fell due.

[244]

It is common ground that no provision was made in the agreement for sale to Sevco

for retention by the company of any entitlement to club fees. The respondents' staff had

attempted, prior to receipt of Mr McKenzie's letter (which post-dated the Sevco agreement),

to obtain clarification from the SPL regarding the company's entitlement to the instalment

about to fall due but had received no substantive response. The eventual outcome was that

on 27 July, the company, the SFA, the SPL, The Scottish Football League Ltd and Sevco

entered into an agreement (subsequently referred to as the "five-way agreement") which

provided inter alia for Sevco to be admitted as an associate member of the Scottish Football

League Ltd to play in the third division, for the transfer to Dundee FC of the company's share

in the SPL, and for an irrevocable waiver by the company and Sevco of any right to unpaid

club fees due to the company in relation to the 2011-12 season.

[245]

In his witness statement, Mr McKenzie expressed surprise at the ease with which the

respondents had agreed to waive all entitlement to club fees due by the SPL to the company,

observing that the sum payable would have been "not far off £1 million". He appeared to

have expected the respondents to use their bargaining position in relation to the transfer of

the company's SPL share to Dundee FC to argue for payment of at least part of the sum due.

He considered that once that transfer was effected, there had been no continuing basis for the

claim for loss and damage that had been made in his letter of 6 July. He had not considered

it necessary to intimate any change in the SPL position to the respondents or to Sevco

because the matter had been resolved by the five-way agreement.

122

[246]

It was submitted on behalf of the respondents that this aspect of the noters' claim had

not been proved. Given the stated position of the SPL, the club fees would not have been

recovered by either the company or Sevco. There was no clear evidence of what sums might

have been payable to the company (or Sevco) but for the five-way agreement. Monies due to

other clubs would have been set against any sum due to the company by the SPL. The claim,

insofar as it was said to reduce the value of Sevco's bid, should be rejected.

RYDL

[247]

At the time of the administration, the company held funds amounting to

around £292,000 that belonged to RYDL. RYDL was in turn, according to RYDL's accounts

for the year to 30 June 2010, a debtor of the company to the extent of £1,455,000. Another

creditor of RYDL was a Mr Ian Hart who had lent £250,000 to RYDL some years earlier. It

appears that Mr Hart came to a private agreement with Sevco to invest in Sevco. On that

basis, Hart sought repayment of his loan by asking RYDL to release the funds due to him

directly to Sevco. The mechanism by which this was achieved consisted of two letters sent

on 14 June. The first, sent by Mr Dickson in his capacity as a director and secretary of RYDL

to Sevco, stated that RYDL released its rights to the funds to Sevco for the specific purpose of

enabling Sevco to use them in part satisfaction of the proceeds required to enable Sevco to

purchase the company's business and assets. The second, sent by Sevco to the respondents,

confirmed that Sevco unconditionally released the funds held by the respondents in part

satisfaction of the purchase price of the company's business and assets.

[248]

The noters' contention, as I understand it, was that because the company was a

creditor of RYDL, it could have utilised its debt either by requiring Sevco to purchase the

debt as an addition to the purchase price, or by excluding its share in RYDL from the sale

123

with a view to recovering the value that its debt would have had on liquidation of RYDL

(approximately 15.5p in the £, amounting to £225,000).

[249]

On behalf of the respondents it was submitted that the noters had not established

that, as a matter of fact, the company was entitled prior to completion of the Sevco sale to a

sum of £292,000. In any event, the receipt of the money as part of the settlement funds had

not amounted to a subsidy from the company to Sevco. The respondents had merely given

effect to a private transaction agreed between Mr Hart and Sevco by acting on the letter

issued by Mr Dickson.

Assessment

[250]

In relation to the SPL commercial revenues, I accept in principle that the respondents

could have sought to retain some or all of these for the benefit of the company's creditors,

either as part of the negotiation of the purchase agreement with Sevco or in the course of

negotiation of the five-way agreement. However I would find it impossible on the evidence

to reach any satisfactory conclusion as to what amount they might have been able to retain.

There was no evidence, beyond Mr McKenzie's reference to "not far off £1 million" of the

amount that would have been due to the company by way of fees payable in the summer

2012 instalment. It appears (though there was never any formal indication from the SPL) that

deductions from the fees could have been made in respect of sums of over £800,000 due to

other clubs. Nor is it possible to assess what sum the SPL might have been willing to agree

to pay if the matter had been pressed during the negotiation of the five-way agreement.

Mr Clark's evidence, moreover, was that Mr Green had insisted on being in control of this

claim during negotiations with the SPL. In all the circumstances I am not persuaded that if

124

the respondents had sought to pursue the matter any significant sum would have been

recovered from the SPL for the benefit of the company's creditors.

[251]

As regards the RYDL monies, I agree with the respondents' submission that this was

in essence a private deal between RYDL, Sevco and Mr Hart. I accept that the respondents

could have sought to exclude the company's share in RYDL from the sale of the business to

Sevco, but that would have been dealt with as a separate matter for negotiation. There was

no evidence as to what the outcome of such a negotiation might have been.

[252]

More importantly, however, none of this affects my assessment of the amount of

compensation payable to the noters. Neither of these matters is now raised by the noters as a

breach of duty by the respondents. Rather, as I have explained, they are presented as reasons

for treating the sum paid by Sevco as £4 million instead of £5.5 million in the calculation of

the loss arising from the respondents' failure to obtain a higher price for the business.

Presumably without these two matters the sum claimed would have been £1.5 million lower.

But I have held that with the exception of the compensation that I have held to be due in

respect of loss of a chance in relation to realisation of the value of the heritable property,

there was no such failure. It follows that the question whether the adjustments sought by the

noters in respect of the commercial revenues and RYDL funds should be made does not

strictly arise for decision at all.

Summary and disposal

[253]

For all of the foregoing reasons, I hold that the noters are entitled, in terms of

paragraph 75 of Schedule B1, to an order that the respondents contribute the following sum

to the company's property by way of compensation for breach of duty:

Loss of chance of sale of marketable players

£977,500

125

Loss of chance of sale of Steven Naismith

£827,000

Loss of chance of lease and sale of Ibrox Stadium

£750,000

Loss of chance of sale of Murray Park

£850,000

Total

£3,404,500

[254]

I would intend to award interest on this sum at the rate of 4% per annum from

6 February 2017.

[255]

Before pronouncing an interlocutor I shall put the case out by order in case parties

wish to address me on any matters (arithmetic or otherwise) arising from this opinion. I am

grateful to all counsel for their very thorough and helpful presentation of their respective

cases.