Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 90

CA196/15

OPINION OF LORD DOHERTY

In the cause

CHARLES ALEXANDER GREEN

Pursuer;

against

RANGERS INTERNATIONAL FOOTBALL CLUB PLC

Defender:

Pursuer:  Brown;  DAC Beachcroft Scotland LLP

Defender:  Dean of Faculty (Wolffe QC), G Walker;  Anderson Strathern LLP

26 November 2015

Introduction
[1]        In this commercial action the pursuer seeks declarator that the defender is contractually bound to pay any reasonable professional costs and expenses incurred by the pursuer in respect of his defence to criminal proceedings commenced against him on or around 1 September 2015.  The contractual provision upon which the pursuer founds is contained in clause 8.3 of the Without Prejudice Compromise Agreement between the parties dated 24 April 2013. 

 

Background
[2]        The Rangers Football Club plc (“Oldco”) was placed in administration on 14 February 2012.  In May 2012 the joint administrators granted Sevco 5088 Limited an “exclusivity” option.  Sevco 5088 Limited paid the administrators £200,000 as consideration for the grant of that option.  A sale agreement was concluded subject to a creditors voluntary arrangement (“CVA”) being approved by the required majority of creditors.  Creditors did not give that approval.  On 14 June 2012 the administrators sold the business and assets of the company to Sevco Scotland Limited (“Newco”).  Oldco went into liquidation.  It changed its name to RFC 2012 plc.  On 31 July 2012 Newco changed its name from Sevco Scotland Limited to The Rangers Football Club Limited.  On 19 November 2012 the defender was incorporated.  It entered into a share exchange agreement with the shareholders of Newco (one of whom was the pursuer) whereby in December 2012 it acquired the whole shares in that company in return for shares in the defender being allocated to those shareholders, with the upshot that it became a wholly owned subsidiary of the defender.  That share exchange took place at the same time as an Initial Public Offering (“IPO”) of shares in the defender which resulted in all of the ordinary shares in the defender being admitted to trading on the AIM market.  

 

The pursuer’s position vis a vis the various companies
[3]        In terms of a contract of employment (6/9 of process) dated 17 September 2012 between the pursuer and Newco it was agreed that that company employed the pursuer and that the pursuer should act as its chief executive (clause 1.1).  The agreement was deemed to have commenced on 1 June 2012 (clause 2.1). 

[4]        In terms of a Director’s Service Agreement (7/3 of process) dated 7 December 2012 between the pursuer and the defender it was agreed that the defender employed the pursuer and that the pursuer should act as its chief executive or such other appointment within the group as the defender may from time to time reasonably direct.  His employment pursuant to the Agreement commenced on the date of admission of the defender’s ordinary shares to trading on the AIM market (clause 4.1), which date was 19 December 2012.  In terms of clause 4.4 the pursuer’s “continuous period of employment” with the defender began on 1 June 2012.  Clause 40 provided that the Agreement: 

“… supersedes all previous agreements and arrangements (if any) relating to the Executive’s employment by the Company and sets out the entire agreement of the parties in relation to the Executive’s employment.”

 

[5]        The pursuer avers (Condescendence 3) that he was approached in about March 2012 by a consortium of investors who were interested in acquiring a majority of the issued share capital of Oldco.  He was to lead the consortium, and in the event of acquisition he was to become chief executive of Oldco.  Sevco 5088 Limited was incorporated as a vehicle for the proposed acquisition.  The pursuer was its only director.  He avers (Condescendence 3) that: 

“… [o]n about 12 May 2012 the administrators announced that the consortium led by the pursuer was the preferred bidder and that it had been granted a period of exclusivity.  They issued a letter to that effect addressed to Sevco 5088 ...”

 

He also avers that when it became clear that the proposed CVA would not be approved work commenced on a different transaction whereby the business and assets Oldco would be acquired by a new company.  He incorporated Newco as the new company to be used.  He was its only shareholder, its only director and its only executive.  From the date of its incorporation he negotiated the acquisition of Oldco’s business and assets.  He did so in the capacity of chief executive of Newco.  On completion of the acquisition on 14 June 2012 the Rangers website announced the acquisition and that the pursuer was “the new chief executive of Rangers” with immediate effect.  The pursuer avers that from 14 June 2012 onwards the business formerly carried on by Oldco was carried on by Newco;  and that the terms of his engagement as chief executive of Newco were reduced to writing in the contract of 17 September 2012.  He further avers (Condescendence 2): 

“The pursuer was formerly an employee of, a director of and Chief Executive Officer of the defender. He resigned from the position of Chief Executive Officer with effect from 19^th April 2013 and his employment with the defender was terminated with effect from 22^nd April 2013. He ceased to be a director at or around the same time …”

 

The Without Prejudice Compromise Agreement
[6]        Clause 2.1 of the Without Prejudice Compromise Agreement provided that the pursuer had resigned from his position as chief executive officer of the defender with effect from close of business on 19 April 2013;  that his employment as an employee of the defender would terminate on 22 April 2013 in accordance with the terms of the Agreement;  and that he would resign from his office as a director of the defender with effect from 31 May 2013.  Clause 2.2 stated:

“This Agreement sets out the terms which have been agreed between the parties concerning the termination of the Employee’s employment with the Company and his employment pursuant to the Services Agreement …dated 7 December 2012 …, and his office as a Director of the Company without admission of liability on the Company’s part.”

 

Under the Agreement the pursuer was the “Employee” and the defender was the “Company”.  The Agreement made provision for payment of a Termination Payment (clause 3).  Clause 6 contained a number of waivers and warranties.  For present purposes it is sufficient to mention clauses 6.4, 6.6 and 6.7: 

“6.4 The Employee warrants and undertakes to the Company, that the claims and prospective claims listed in Schedule 1 and Clause 6.2 are all the claims or prospective claims which the Employee intimates and asserts that he may have against the Company or any Associated Company arising out of or in connection with the employment pursuant to the Services Agreement or its termination.

…

 

6.6 As at the date of this agreement, the Employee warrants and represents to the Company that there are no circumstances of which the Employee is aware or of which the Employee ought reasonably to be aware which would amount to a repudiatory breach by the Employee of any express or implied term of the Employee’s contract of employment which would (or would have) entitled the Company to terminate the Employee’s employment without notice or payment in lieu of notice (if he was still employed) and any payment to the Employee pursuant to clause 3.1 is conditional upon this being so.

 

6.7 The Company accepts that the terms of this Agreement are also in full and final settlement of any claims that the Company and any Associated Company has or may have against the Employee arising out of or in connection with the Employee’s employment and its termination, his directorship and its termination or any other matter arising out of a business relationship between the parties, whether such claims arise under English law, Scottish law, European Community law or under the law of any other jurisdiction …”

 

Clause 8 contained a number or provisions dealing with post-termination obligations.  Clause 8.3 provided: 

“8.3 The Company will pay any reasonable professional (including, without limitation, legal and accounting) costs and expenses properly incurred by the Employee after the date of this Agreement which arise from having to defend, or appear in, any administrative, regulatory, judicial or quasi-judicial proceedings by a third party as a result of his having been Chief Executive of The Rangers Football Club or the Company.”

 

Clause 11.1 provided:

“The Company agrees that if requested by an employment agency or a prospective employer of the Employee, it will provide a reference concerning the period of employment undertaken by the Employee with the Company to the employment agency or prospective employer in terms of the reference set out in Schedule 3…”

 

Clause 14.1 provided that the schedules to the Agreement formed an integral part of it.  Schedule 3 was in the following terms:

“                      REFERENCE

 

[Insert name and address of the recipient of reference]

 

Dear [insert addressee]

Charles Green

 

I hereby confirm that Charles Green was employed by The Rangers Football Club between 14 June 2012 and 22 April 2013.  Charles was employed as Chief Executive and office holder as Director.

 

Charles Green has been instrumental in helping to secure financial stability for The Club.  The impact that he had in turning The Club around from the dark days of last summer will never be forgotten by the fans who I am sure, like me, will thank him for this and for choosing to put the Club ahead of his personal position at this time. 

 

Yours sincerely

 

[insert name of signatory]”

 

The criminal proceedings
[7]        On 2 September 2015 the pursuer and four co-accused(Craig Thomas Whyte, Paul John Clark, David John Whitehouse, and Sheik Imran Ahmad) appeared at Glasgow Sheriff Court on a petition brought at the instance of the procurator fiscal (6/2 of process).  Mr Clark and Mr Whitehouse had been Oldco’s administrators.  On 15 September 2015 the pursuer was served with an indictment (6/3 of process).  Charges 6 and 7 are directed against the pursuer and his four co-accused.  Charge 8 is directed against the pursuer and Mr Ahmad.  I examine the terms of the charges below.  

[8]        A preliminary hearing took place on 16 October 2015.  A hearing on various preliminary issues and compatibility issues has been set down for 7-11 December 2015.  A continued preliminary hearing is to take place on 11 January 2016. 

 

The pursuer’s averments concerning clause 8.3 and the criminal proceedings
[9]        In Condescendence 3 the pursuer avers:  “…The reference [in clause 8.3] to “the Company” is a reference to the present defender.  The present pursuer is “the Employee”.  The separate reference to “The Rangers Football Club” is to a wholly owned subsidiary of the defender, now called The Rangers Football Club Limited.  In Condescendence 5 he avers:

“The criminal proceedings are ‘judicial proceedings’ within the meaning of clause 8.3 …  They are proceedings ‘by a third party’…  The pursuer has to appear in them … The proceedings arise as a result of his having been chief executive of the defender and of Sevco Scotland.  The criminal conduct libelled against the pursuer consists primarily of conduct which is alleged to have been carried out in the execution of his duties as chief executive.  In particular he is accused of participating in a fraudulent scheme to acquire the business and assets of Rangers Football Club for Sevco Scotland at less than their true value, and he is accused of conducting a fraudulent initial public offering by which substantial equity capital was raised.  The defender and/or Sevco Scotland received the fruits of that conduct, in the form of the acquisition of the business and assets of Rangers Football Club and the funds raised by means of the initial public offering.  Reference is made to charges 6, 7 and 8 on the indictment… [E]verything done by the pursuer in furtherance of the proposed acquisition of the business and assets of Rangers was done in the capacity of chief executive of Sevco Scotland, and thus in the capacity of the chief executive of ‘The Rangers Football Club’ within the meaning of clause 8.3.  The criminal proceedings assert that he carried out his duties as chief executive in a criminal manner.  The pursuer has to appear in the criminal proceedings as a result of having been chief executive within the meaning of the clause.  Everything done by the pursuer in connection with the initial public offering was done in the capacity of chief executive of Sevco Scotland and latterly the defender.  Sevco Scotland continues to hold the business and assets which were acquired from the administrators of Rangers.  The present defender received the sums which were subscribed by investors in the initial public offering.  All of the activity in respect of which the Crown alleges criminality on the part of the pursuer was carried out in furtherance of his duties as chief executive.” 

 

The defender’s averments
[10]      The defender avers (Answer 3 as amended by the defender’s minute of amendment) that the reference to “The Rangers Football Club” in clause 8.3 is not a reference to Newco but to “The Rangers Football Club an association football club which is recognised to have a continuing existence regardless of the person which from time to time owns the Club”.  It avers that at the time of the Compromise Agreement the parties were aware of the importance of distinguishing between the Club and the limited companies which owned it from time to time.  It avers that it is the Club, rather than the corporate entity which owns it, which is a member of the Scottish Football Association, the European Clubs Association and UEFA.  It further avers (Answer 5) that while the criminal proceedings are judicial proceedings by a third party in which the pursuer has to appear, they are not judicial proceedings falling within the scope of clause 8.3.  It avers that much of the alleged activity predated the pursuer’s appointment as chief executive.  Even more fundamentally, it avers that the charges against the pursuer do not arise as a result of his having been chief executive of the defender or of the Club or of Newco.  Rather, they arise as a result of the criminal conspiracies which he and his co‑accused agreed and executed.

[11]      In the event that the pursuer’s construction of clause 8.3 is correct the defender avers (Answer 5) that it would be unenforceable because it would be contrary to public policy.  It also avers that on the hypothesis of fact on which the indictment proceeds the pursuer would be in material breach of clause 6.4 of the Compromise Agreement because he anticipated but did not disclose the possibility of the present claim under clause 8.3;  and in material breach of clause 6.6 because he knew or ought to have known that he was in material breach of his duties as a director and chief executive.  It avers that standing those material breaches of obligations of which the obligations in clause 8.3 were a counterpart, the defender ought not to be compelled to perform its obligations under clause 8.3.  It further avers that on the hypothesis of fact on which the indictment proceeds there would be grounds for reducing ope exceptionis both the Compromise Agreement and the Services Agreement.  

 

Submissions for the defender
[12]      The Dean of Faculty’s primary submission was that the pursuer’s averments were irrelevant and that the action should be dismissed.  That was because on a proper construction of clause 8.3 the criminal proceedings against the pursuer do not fall within its scope.  They are not proceedings brought “as a result of his having been Chief Executive of The Rangers Football Club or the Company”.  Giving that expression its ordinary and natural meaning it did not extend to the pursuer’s claim.  The pursuer’s suggested construction did not accord with the reasonable expectations of commercial parties agreeing a clause such as this.  Reference was made to Arnold v Britton and others [2015] 2 W.L.R 1593, Lord Neuberger at paragraphs 15, 19 and 20, and Lord Hodge at paragraph 74.  The Dean respectfully differed from the Court of Appeal in Coulson v News Group Newspapers Ltd [2012] EWCA Civ 1547.  He submitted that on an ordinary construction, and having regard to the reasonable expectations of commercial parties, all criminal proceedings fell outwith the ambit of the clause.  Whether that was right or not, the circumstances in the present case were readily distinguishable from those discussed in Coulson.  Even if clause 8.3 included some types of criminal proceedings, it did not include the proceedings which had been brought against the pursuer.  The allegations were not of conduct which could be described as good faith but misguided attempts to fulfil the duties of chief executive of the defender or of “The Rangers Football Club” (whether that phrase referred to Newco, as the pursuer contended, or to what the defender described as the Club).  Rather they were allegations that the pursuer participated in criminal conspiracies with others which favoured his and their interests, and which were conceived of and acted upon before he was ever a chief executive of the defender, Newco or the Club.  

[13]      The Dean also submitted that the pursuer’s construction of clause 8.3 would result in an agreement which was contrary to public policy.  He recognised that the Court of Appeal in Coulson had rejected an argument that agreeing to indemnify the costs of defending criminal proceedings was contrary to public policy.  At the very least this part of the reasoning in Coulson was distinguishable because of the materially different criminal conduct which was alleged in the present case.  Here the indictment alleges that the pursuer was guilty of being a co-conspirator in a deliberate and concerted course of criminal conduct committed for the benefit of himself and his co-conspirators.  That was poles apart from criminal proceedings which were the result of a good faith but misconceived attempt by an employee to perform the duties of his post.  

[14]      In the course of making his primary submission the Dean also tentatively suggested that if clause 8.3 was ambiguous it ought to be construed contra proferentem the pursuer.  There was no trace of that argument in the defender’s written note of argument.  The submission was not elaborated upon and I was not referred to any authority in support of it.

[15]      The defender’s secondary submission was that the words “The Rangers Football Club” where they appeared in clause 8.3 meant the association football club, as distinct from its owners from time to time.  That was how the parties and informed bystanders would have understood that phrase.  It was also consistent with the terms of the draft reference letter in Schedule 3.  The phrase was not, as the pursuer suggested, a reference to The Rangers Football Club Limited (Newco).  Had the parties intended to refer to that limited company it would have been very easy for them to do so.  The Dean accepted that if it was critical to determine the meaning of the phrase in order to decide whether clause 8.3 covered the criminal proceedings, some form of inquiry into the surrounding facts and circumstances at the time of the Agreement would be required. 

[16]      The defender’s final submission was that if the pursuer was convicted it would be plain that the proceedings had not been proceedings which he had faced “as a result of his having been Chief Executive of The Rangers Football Club or the Company.”  They would have been proceedings which he had faced as a result of the crimes he had committed.  In any event, even if the pursuer’s construction of clause 8.3 was correct, if the pursuer was convicted the defences pled in Answer 5 would be relevant defences to the pursuer’s claim.  It followed that it was premature to pronounce decree of declarator before determination of the criminal proceedings.  The action should be sisted until the criminal proceedings had run their course.  The fact that the defender would have these defences if the pursuer was convicted was a further reason for concluding that criminal proceedings of this sort had not been what had been contemplated at the time of contracting;  and that they were not within the ambit of clause 8.3 as properly construed. 

 

Submissions for the pursuer
[17]      Mr Brown’s primary submission was that on a proper construction of clause 8.3 it entitled the pursuer to obtain payment from the defender of the reasonable professional costs and expenses of defending the criminal proceedings which had been brought against him.  The pursuer’s averments to that effect were relevant and the defender’s averments to the contrary effect were irrelevant.  Decree of declarator in terms of the first conclusion should accordingly be pronounced.

[18]      The reference to “Chief Executive of The Rangers Football Club” was a reference to the pursuer’s time as chief executive of Sevco Scotland Limited/The Rangers Football Club Limited (Newco).  Newco had become a wholly owned subsidiary of the defender and it was entirely understandable in those circumstances that the indemnity should extend to the pursuer’s performance of his duties as chief executive of that company as well as to the performance of his duties for the defender.  It was obvious from the period of employment referred to in, and the other terms of, the draft reference in Schedule 3 that that document referred to the pursuer’s employment as chief executive of both Newco and the defender.  The pursuer had not been chief executive of any other entity during the relevant period.  

[19]      At the time the Compromise Agreement was entered into it had been foreseeable that there might be civil litigation challenging the acquisition from Oldco and/or challenging the IPO.  Mr Brown did not suggest that criminal proceedings of the nature brought against the pursuer had been in contemplation at that time. 

[20]      The terms of the indemnity granted were very wide in scope.  The natural meaning of the words used was broad enough to include criminal proceedings.  The word “proceedings” was a generic one.  Given the width of that word it had been unnecessary for the clause to further specify that it included criminal proceedings (cf. Mars Pension Trustees Limited v County Properties and Developments Limited 1999 SC 267, per Lord Prosser at pages 273-275).  Mr Brown accepted that the clause would not entitle the pursuer to recover the costs and expenses of a defence where the charge was of criminal conduct separate from the pursuer’s duties as chief executive.  He relied upon the approach of the Court of Appeal in Coulson, per McCombe LJ at paragraphs 45-47.  Clause 8.3 fell to be read as extending to criminal proceedings which were consequential upon the pursuer performing his roles as chief executive of the defender and of Newco.  It was alleged that the manner of performance of those duties had breached the criminal law but that was not enough to take the proceedings outwith the scope of clause 8.3.  The charges which the pursuer faced arose primarily from the allegedly criminal manner of his performance of his roles as chief executive of the defender and of Newco.  The charges were about how he had gone about performing his duties.  If he had done anything criminal (which was denied) it had been in the course of attempting to carry out his duties in those posts in the interests of each of the companies.  In considering the nature of the “proceedings” the court ought to look not just at the terms of the charges but also at the pursuer’s defence to the charges.  The pursuer’s construction of clause 8.3 was in accordance with business common sense.  The defender would have in mind that if the pursuer was convicted of charges which arose out of the criminal manner of the performance of his duties as chief executive there would be at least some prospect of wronged parties seeking redress from the defender or Newco.  To that extent there was a shared interest that the pursuer should be able to fund his defence to the charges.

[21]      The pursuer’s construction of clause 8.3 would not result in it being unenforceable because of the doctrine of ex turpi causa.  There was nothing contrary to public policy in one person providing funds to another for that other to defend himself against a criminal charge (Coulson, supra, per McCombe LJ at paragraph 61). 

[22]      If the pursuer’s construction was correct, and if the behaviour alleged arose primarily out of the allegedly criminal manner of his performance of his roles as chief executive of the defender and of Newco, he was entitled to payment of his reasonable costs and expenses to enable him to conduct his defence to the charges.  In that event the defender was not entitled to withhold payment until the determination of the criminal proceedings.  In terms of clause 8.3 the right to payment was not postponed until that time.  Nor was it made conditional upon the pursuer being acquitted of the charges.  If at that time the defender considered that the pursuer had been in breach of any of the warranties in his contract of employment, in the Director’s Service Agreement, or in the Compromise Agreement (and it was not accepted that there had been or would be any such breach) it could seek to pursue a remedy in damages. 

 

Decision and reasons
[23]      The principal issues before the court are (i) the proper construction of clause 8.3;  and (ii) having regard to that construction, whether or not the pursuer’s claim to indemnity falls within the ambit of clause 8.3. 

[24]      In my opinion it is not possible to determine at this stage, without hearing evidence as to the surrounding circumstances at the time the Compromise Agreement was executed, what the phrase “The Rangers Football Club” in clause 8.3 means.  The phrase cannot be said to be free from ambiguity.  I am not persuaded that the court ought to accept or reject either of the rival constructions without inquiry into the matrix of fact which the parties aver ought to have a material bearing on how the phrase would have been understood by persons in the position of the parties at the time of contracting. 

[25]      However, I am satisfied that even if the pursuer’s construction of clause 8.3 is correct he is not entitled to payment from the defender of the professional costs and expenses of defending the criminal proceedings brought against him.  In my opinion the pursuer’s averments that he is so entitled are irrelevant. 

[26]      In order to test the relevancy of the pursuer’s averments I proceed on the hypothesis that clause 8.3 entitles the pursuer to indemnity in respect of his defence of criminal proceedings brought against him as a result of his alleged breach of the criminal law while attempting (i) to perform his duties as chief executive of the defender or of Newco, and (ii) to advance the interests of the relevant company.  That accords with the Court of Appeal’s construction (in Coulson, supra) of the very similar clause in the agreement dealing with the termination of Mr Coulson’s employment.  It also appears to me to be a construction which has due regard both to the language of the clause and to business common sense.  On the other hand in my opinion it would be absurd to suggest that the clause means that the pursuer is to be indemnified in relation to criminal proceedings which have any connection whatsoever - however slender or incidental - with the performance of the pursuer’s duties as chief executive, irrespective of the nature of the charge or of the primary objective being furthered.  Sensible businessmen in the position of the parties at the time of contracting could not have intended that the clause should have such a meaning.  Such businessmen would not have contemplated the defender being required to indemnify the pursuer in respect of the costs and expenses of defending criminal proceedings where the criminality alleged involved the pursuer and co-conspirators having acted to advance their personal interests rather than the interests of the companies of which the pursuer had been chief executive.  Such a construction would flout business common sense. 

[27]      I turn to examine the nature of the allegations in the indictment.  

[28]      Charge 6 libels a common law conspiracy against the pursuer and his four co‑accused.  The gravamen of the charge is that they conspired together to acquire de facto control and ownership of the business and assets of Oldco for a discounted consideration in order to favour their own financial interests and to the prejudice of Oldco’s creditors.  Some of the steps alleged to have been taken in furtherance of the conspiracy were said to have been carried out by co-accused.  Some were said to have been carried out by the pursuer on dates before he had become chief executive of either Newco or the defender.  

[29]      Charge 7 alleges a contravention of section 28 of the Criminal Justice and Licensing (Scotland) Act 2010:  that between 1 February 2012 and 31 December 2012 the pursuer and his four co‑accused did agree to do something that they knew or suspected or ought reasonably to have known or suspected would enable or further the commission of serious organised crime, in that they did agree to and did participate in a conspiracy the purpose of which was to purchase the business and assets of Oldco from the administrators for a sum considerably below the market value and did thereby deprive the creditors of Oldco of the rightful sums due to them, all to the material benefit of the pursuer and his co-accused.

[30]      Charge 8 alleges that between 1 March 2012 and 30 December 2013 the pursuer and Mr Ahmad conspired to acquire an increased shareholding in Newco;  that they deprived the investors in Sevco 5088 Limited of a financial benefit;  and that they obtained material benefit and a quantity of shares and money by fraud.  Paragraphs (a) to (g) of the charge set out steps alleged to have been taken in furtherance of the conspiracy. 

[31]      It is clear from the terms of the charges that a great deal of the conduct libelled bears to have taken place prior to the earliest date when the pursuer became chief executive of either of the companies.  Those aspects of the charges cannot possibly be said to arise as a result of the pursuer having been chief executive. 

[32]      A source of even greater difficulty for the pursuer is that it is plain that the charges are not capable of being characterised as allegations that the pursuer breached the criminal law in the course of attempting to duly perform his duties as chief executive of the defender and of Newco.  The facts here are clearly distinguishable from the facts in Coulson. 

[33]      The essence of the charges is that the pursuer and his co-accused conspired from a date before any of the relevant appointments as chief executive to achieve the criminal ends libelled;  and that it is alleged that the acts subsequently carried out by all the conspirators were done in order to further the conspiracies.  In light of those allegations it is nothing to the point if some of the acts done in furtherance of a conspiracy were carried out by the pursuer while acting in his capacity as chief executive of Newco or of the defender.  Whether he was or was not so acting, the acts are still alleged to have been done in furtherance of the criminal purposes which the purser and his co‑conspirators are said to have agreed to.  The criminal proceedings are not proceedings which the pursuer has to defend as a result of his having been chief executive. 

[34]      For the foregoing reasons I am satisfied that clause 8.3 does not entitle the pursuer to recover from the defender the costs and expenses of defending the criminal proceedings which have been brought against him.  The pursuer’s averments are irrelevant. 

[35]      In light of that conclusion it is unnecessary to opine upon the correctness or otherwise of the some of the Dean’s other submissions, viz that in relation to clause 6.3 the pursuer was the proferens and that the clause fell to be construed contra proferentem;  that clause 8.3 does not extend to any criminal proceedings;  and that any agreement to pay the defence costs of criminal proceedings would be unenforceable because of the doctrine of ex turpi causa.  None of these matters formed part of the defender’s primary argument, and I did not have the benefit of developed submissions from counsel in relation to them.  In the circumstances they are points on which I prefer to reserve my opinion.  My conclusion that the pursuer’s averments are irrelevant also makes it unnecessary to adjudicate upon the various other suggested defences to declarator being pronounced immediately, or at all, which the Dean submitted were available to the defender.  Here too, as the arguments were little more than sketched out I do not think it appropriate to proffer any view. 

 

Disposal
[36]      I shall sustain the defender’s first plea-in-law and dismiss the action.  I reserve meantime all questions of expenses.