Petition Of The Panel Of Takeovers And Mergers Against David King

CourtCourt of Session
JudgeLady Wolffe
Neutral Citation[2018] CSOH 105
Date14 November 2018
Docket NumberP341/17
Published date14 November 2018
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 105
P341/17
OPINION OF LADY WOLFFE
In the petition
THE PANEL ON TAKEOVERS AND MERGERS
Petitioner and Minuter
against
DAVID KING
Respondent
For orders under section 955
Pursuer: Johnston QC, Turner; Dentons UK
Defender: J Mitchell QC; Lindsays
14 November 2018
Introduction and background
The legal issue
[1] This is an application by The Panel On Takeovers And Mergers (“the Panel”) asking
the court to find David King (“the respondent”) guilty of contempt of court by reason of his
failure, it is said, to obtemper the court’s interlocutor of 22 December 2017 (“the first
interlocutor”), as confirmed and varied by the interlocutor of the Inner House of the Court
of Session dated 28 February 2018 (“the Inner House interlocutor”), and which read together
with the first interlocutor, I shall refer to as “the Interlocutor”.
2
[2] The matter called before me for debate on the issue of whether the Panel was obliged
first to obtain the concurrence of the Lord Advocate to the raising of these proceedings and,
whether, having failed to do so, the Panel’s application is incompetent.
Outline of the respondent’s challenge
[3] The respondent’s principal argument as to why the Minute was incompetent was as
follows:
(1) The Panel’s application was incompetent in the absence of the concurrence of the
Lord Advocate. In brief the argument was that, historically, all cases involving a
contempt of court required the prior concurrence of the Lord Advocate. This
flowed from the penal character of the consequences of a contempt and there was
no coherent policy reason to distinguish between contempt involving an interdict
and other forms of orders (“the concurrence challenge”)
The respondent referred to a subsidiary argument:
(2) In any event, proceeding by Minute was arguably incompetent and the present
application required to be by petition and complaint to the Inner House (“the
procedural argument”). This flowed from a narrow reading of section 47 (1) of
the Court of Session Act 1988 (“the 1988 Act”), which the respondent did not
himself espouse. For this reason, the procedural argument was not ultimately
advanced as a separate challenge to the competency of the Panel’s Minute. The
concurrence challenge sufficed for the respondent’s purposes. The procedural
argument was made to highlight, it was said, the illogicality of the Panel’s
application.
3
Outline of the Panel’s reply
[4] The Panel’s reply is as follows:
(1) In relation to the concurrence challenge, the modern law is that the concurrence
of the Lord Advocate is required only in proceedings for contempt of court for
breach of an interdict and, accordingly, no concurrence was required in
proceedings for contempt of court for breach of a positive order (such as imposed
on the respondent by the Interlocutor); and
(2) In relation to the procedural argument, proceeding by Minute in the original
proceedings (as after defined) was competent.
The procedural history
[5] The procedural background is lengthy. It suffices for present purposes to note that
the respondent’s original acquisition of shares in Rangers International Football Club plc
(“the Company”) gave rise to the need for certain rulings by the Panel. It did so in
furtherance of its function of administering the City Code on Takeovers and Mergers
(“the Code”) and in the exercise of its statutory functions in chapter 1 of Part 28 of the
Companies Act 2006 (“the Companies Act”). One of the rulings required the respondent to
make an offer for certain other shares in the Company and, related to that, to publish a
Code-compliant announcement of his offer to do so. These rulings were subsequently
confirmed by court orders sought in the Panel’s petition proceedings in this court
(“the original proceedings”) and embodied in the first interlocutor. By the Inner House
interlocutor, the Inner House confirmed and varied the first interlocutor. The respondent
was required to implement the Interlocutor by 30 March 2018. He has not done so.

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