Private Eye… Reasons for Craig Whytes Ban

THE full details can now be revealed why former owner Craig Whyte was banned for seven years from being a company director back in 2000 – a damaging fact that Whyte hid from football and City regulators when he acquired Rangers in May last year.

Private Eye has obtained key legal documents relating to that disqualification decision, following a successful application to the high court last month. Mr Justice Morgan ruled that the Eye should be given access to the normally closed court file because of the overriding arguments of open justice where “proper journalistic purpose” and the public interest were involved. (It is highly unusual for the media to succeed with such applications. However, an appeal court ruling in April in a Guardian case held that access to court records should be made much easier, although that applied to a recent extradition case.)

The documents make clear why Whyte did not want to disclose a boardroom ban which would have almost certainly killed his bid to buy Rangers, which collapsed into administration in February.
Whyte was disqualified after he was accused of the misapplication of assets to the detriment of creditors in not one but two companies. Furthermore, he failed to cooperate with an investigation by the official receiver into one of the companies, and he settled for £ 150,000 a claim alleging misfeasance, breach of fiduciary duty and negligence.

The Department of Trade and Industry began its action against Whyte in October 1998 following the winding-up of security company Vital UK in October 1995. Vital had been formed in April 1994. Insolvency practitioner Peter Lawrence was appointed liquidator to Vital UK in November 1996.
In an affidavit Lawrence set out the sequence of events which the DTI decided made Whyte “unfit” to be a company director. Whyte was the sole Vital UK shareholder and acted as a “shadow” director, running the company. The “de facto” director was his employee David Anderson. In his affidavit Anderson denied he was anything other than a “dogsbody” who signed documents he did not understand.

On 20 October 1995, a week before it was voluntarily wound up by its shareholders (ie Whyte), Vital UK sold its assets, including equipment and trade debts, for £649,139 to another Whyte company, Pelcroft. But payment was deferred. Instead of cash, Vital UK received a
Pelcroft promissory note due for payment by 23 October 1996. The note was signed by Whyte, the majority shareholder in Pelcroft. Three days before the winding-up, Anderson signed a declaration of Vital UK’s solvency.

Prior to the Pelcroft agreement, on 29 September 1995, three other Whyte companies -Venture Developments and Hire Access Group, both UK-registered, and Vietnam Trading Company Limited (VTCL), registered offshore in the Bahamas – issued promissory notes to Pelcroft totalling £600,000 in return for Pelcroft shares which did not have to be paid for until 29 September 1996 – just before the Pelcroft note to Vital UK became due.

Then, on 26 October 1995, six days after the deal with Vital UK, Pelcroft agreed to buy a 24.5 percent stake in the Vietnam Trading Company (VTC) for £ 1.4m, payable to VTCL. Pelcroft met this payment in part by assigning to VTCL the promissory notes from Venture Developments and Hire Access Group worth £350,000, cancelling the VTCL note for £250,000 and transferring to VTCL £105,000 in cash. This agreement was signed on behalf of all four companies by Whyte.

The next day Vital UK was wound up with a supposed surplus of £55,000 because of the money due from Pelcroft. But on 28 October Pelcroft transferred the assets it had acquired from Vital UK days before to yet another Whyte company, Vital UK Security, for the exact amount Pelcroft owed Vital UK – £649,139 – plus interest of almost £60,000. These amounts were to be paid within three months of Vital UK Security or any related Whyte company being listed on the AIM market by July 1996. If there was no listing, Vital UK Security was either to pay Pelcroft £60,000 by October 1996 and then £10,000 a monthuntil December 2001 or any earlier listing. On 1 November 1995 Whyte resigned as a Pelcroft director.

No listing was ever achieved – despite the efforts of Whyte’s close associate, the twice bankrupt Aidan Earley. The Vietnam investment never materialised. A single payment of £60,000 was made by Vital UK Security to Pelcroft, which passed that on to Vital UK. With no assets, Vital UK went into liquidation in November 1996. It then petitioned for the winding-up of Pelcroft in February 1997.
This shell game orchestrated by Whyte stripped any real assets out of Vital UK and Pelcroft. “Pelcroft received no money or monies worth in return and therefore never had any or any realistic prospect of meeting its liabilities [to Vital UK],” Lawrence stated. Furthermore, the Vital UK assets had been transferred on deferred terms when there was no “reasonable prospect or likelihood” of an AIM listing “before or within a reasonable period after” July 1996. As a result of those two agreements, “Pelcroft became insolvent and unable to pay its debts…

“The cumulative effect of these transactions was that Pelcroft’s assets were transferred offshore, thereby rendering it in any event impossible for Pelcroft to meet its deferred payment obligations to the company. In effect, therefore, Pelcroft’s promise to pay the said consideration was or was rendered worthless.” By not “taking any or any adequate steps to protect” Vital UK, Whyte had “misapplied the company’s assets”.

The largest creditor was the Revenue, which was owed £280,000. HM Revenue and Customs is the second biggest creditor at Rangers, whichunder Whyte stopped paying PAYE and national insurance.
The Lawrence affidavit was backed up by another from Gilbert Campbell of the official receiver’s department, which was acting as liquidator for Pelcroft. Campbell stated that because of “the transfer by Pelcroft of substantially all of its liquid assets to VTCL, an offshore company“, for which it received nothing in return, it “therefore never had any or any realistic prospect of meeting its liabilities”. The three Whyte companies also never paid the £600,000 for their shares.

Campbell stated: “Whyte caused or permitted Pelcroft [to enter into agreements] the result of which was the transfer… of almost all Pelcroft’s assets out of the company and beyond the reach of creditors. This rendered Pelcroft unable to pay its debts… As a consequence Pelcroft’s promise to pay the consideration to Vital was rendered worthless.” In addition, “Whyte has not cooperated with the official receiver and has not been interviewed.”

Allan Baxendale from the DTI Disqualification Unit filed an affidavit stating that on the basis of what had happened at Vital UK and Pelcroft, Whyte was “unfit” as he had “misapplied money and property to the detriment of creditors” and “failed to cooperate with the official receiver”.

Whyte denied the allegations and initially contested the disqualification. In an April 1999 affidavit he denied that he had been a director of or ran Vital UK and claimed to operate as a “hands-off” investor. He claimed that the Vital UK assets were only worth £350,000 and that he had tried to ensure creditors were repaid in full through the Vietnam project, which involved, among other ventures, exporting Boddingtons beer. He and Aidan Earley – who backed him with an affidavit – were working on the AIM flotation to raise £750,000, which was only prevented by the decision to wind up Pelcroft. An Earley company received £250,000 from Whyte after the Rangers deal.

Whyte also revealed that he had agreed to pay £150,000 to the Vital UK liquidator to settle civil claims of misfeasance/breach of duty/negligence which had been due to go to court in 1998. His co-defendant, David Anderson, denied that he had ever acted as a director of Vital UK and alleged that his signature had been backdated on the form showing his appointment in 1994 – when he was not even working for Whyte.

Lawrence signed a second affidavit in December 1999 rejecting most of Whyte’s claims. He produced a bank mandate “signed by Whyte as chairman” of Vital UK and so “the only person who could alone control the company’s financial affairs”. “He must bear principal responsibility for so arranging the affairs of Vital and other companies so as to leave Vital in a position where it received only £60,000 (and that later than had been contracted for) instead of the £649,139 agreed,” Lawrence stated. Vital UK’s creditors were owed £384,000, which even after allowing for the £150,000 due from Whyte left £167,000 before costs.

As to any Vital UK benefit from the Vietnam venture on AIM, “there is no evidence to suggest that this was ever intended to happen” and “does not bear close examination”. Whyte had offered in 1997 to pay £400,000 over seven months, but no payment was made. “I therefore formed the view that Mr Whyte could not be trusted to keep to this arrangement.” Lawrence had subsequently settled for £150,000 in instalments.

Another official receiver officer, Michael Boyall, declared in a December 1999 affidavit that Whyte had been contacted in February 1997 requesting information about his actions at Pelcroft and requiring him to attend for an interview: “A complete signed copy (of the legal questionnaire) was never received from Mr Whyte and he did not ever attend for an interview.”

Whyte did not attend the final court hearing at which the disqualification order was made in June 2000, although he was legally represented. The disqualification action against Anderson was dismissed.

All these documents could have emerged if Whyte had admitted to the disqualification order. The tale they tell explains why he tried to keep it secret.

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One Comment on “Private Eye… Reasons for Craig Whytes Ban”

  1. The Big Man Says:

    One thing that puzzled me reading this in Private Eye, is…”Why were the documents so hard to get?”, there’s no suggestion that the ban was rescinded on appeal.

    Why were the court documents not a matter of public record?

    If only…

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