Regulator probes charity over funding of St Mirren execs' court claim
The ruling has been described by Mr Wardrop's lawyers as setting a "crucial precedent" for free speech in Scotland.
The claim for damages surrounded comments made by Mr Wardrop around the legality of an application on behalf of Kibble for public funds for a regeneration project including a well-being centre on what appeared to be club land. There were claims that Mr Gillespie and Mr MacMillan had a conflict of interest.
The total costs of the case are thought to run to over £400,000 - and a future hearing is expected to thrash out who pays. Mr Wardrop's legal team say they would be surprised if they do win their costs in the case as the Mr Gillespie and Mr MacMillan's damages claim was dismissed.
Court papers seen by The Herald confirm that the action brought by Mr Gillespie and Mr MacMillan is being funded by Kibble, the charity that cares for children with complex needs at sites across Renfrewshire.
Mr Gillespie is the chief executive of the charity, while Mr MacMillan is director of corporate affairs and both are Kibble representatives on the St Mirren board.
According to court papers seen by The Herald, the judge Lord Clark said of the funding that "this can...give rise to some degree of concern".
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The Office of the Scottish Charity Regulator (OSCR) has said that it was "aware of the situation and is in the process of carefully considering the judgment as part of our ongoing inquiries into the charity".
It is understood that there were concerns raised with the regulator about the funding of the case by the charity. And is believed that the regulator will look at whether the case funding was in the best interests of the charity.
Alan Wardrop (Image: .) Kibble is one of two that has "significant control" of the Scottish Premiership club according to Companies House with more than 25% but not more than 50% of the shares.
St Mirren became fan-owned in the summer of 2021 when the St Mirren Independent Supporters Association (SMISA) bought out the remaining shareholding of chairman Gordon Scott to become majority (51%) owners of the Buddies in what it called "a historic day".
The move to fan ownership of the Paisley club came after Kibble became part-owners in March 2020. It purchased a 27.5% stake in the club.
SMISA said the deal helped to safeguard the future of the club – formed in 1877 – by placing it in the hands of its supporters, "the people who care for it the most".
An OSCR probe into the charity was believed to have been put on hold pending the outcome of the defamation case but has now been reignited.
The judge dismissed Mr Gillespie and Mr MacMillan's claim for damages, which might have amounted to £80,000 because he believed that Mr Wardrop's comments were in the public interest and were honestly held based on the evidence he had at the time - both defences under the Scottish law around defamation damages.
Mr Wardrop said: "I, like many, would question how it was ever appropriate for charitable funds to be used in that manner, particularly where the action was destined for failure because of the defences available to me. It is quite frankly an astonishing waste of charitable money."
In a statement, David Nairn, chairman of Kibble said: "We are extremely pleased that the judgment underlines the facts in this case and vindicates the board's unanimous decision to support Jim and Mark in what was an important action to protect their reputations and that of Kibble.
'Kibble is a very highly regarded national charity, which takes its responsibilities extremely seriously. The board has acted with the utmost propriety in this matter at all times and has, of course, kept regulators fully abreast of our actions and will continue to do so.'
Key to the case were remarks made by Mr Wardrop in a row over what was alleged was a "secretive" plan for the project including a well-being centre on St Mirren land.
Part of the so-called 'St Mirren' regeneration plan (Image: NQ) Alan Wardrop, a lifelong Saints fan who made the step up to the club's board in July 2016 after championing club ownership spoke out two years ago as concerns arose over Kibble's partnership with St Mirren and an alleged plan to develop a wellbeing centre in Ferguslie Park.
According to documents sent to the Scottish Government, Kibble – which cares for children with complex needs at sites across Renfrewshire – appeared to want to build a £13.4 million wellbeing hub next to St Mirren's SMiSA Stadium.
A map of land supposedly earmarked for the Kibble project submitted by Renfrewshire Council was alleged to have pinpointed St Mirren land - while seeking £2m of public money by way of grant from the Scottish Government.
But an email seen by The Herald from Mr Gillespie and shared with candidates standing for election to the board of the St Mirren Independent Supporters Association (SMISA) said that the council had "wrongly shaded in an area of land owned by St Mirren" and gave a "categoric assurance" that club land would not be used.
As the dispute emerged, Kibble said Mr Wardrop's concerns over the legalilty of the bid titled "St Mirren Regeneration and Wellbeing Masterplan" were based on the "entirely false premise that there was ever any intention to build on land owned by St Mirren".
The spokesman for the charity went on: "There simply was not."
But Renfrewshire Council did not agree that areas of land indicated on a submitted map were produced in error and said the area earmarked in the application to Scottish Government was pinpointed by Kibble.
St Mirren's board insisted at the time that the application was "unspecific" as to the precise location and that it was "not on land owned by St Mirren".
But the row spilled over into an annual general meeting of SMiSA which is the majority owner of the club and which called for an investigation.
The judge in a ruling decided it could not accept a council officer's evidence that said the Mr Gillespie and Mr MacMillan had identified St Mirren land for the project. He decided therefore that the "central claim" that Mr Gillespie and Mr MacMillan had a plan to build on St Mirren land was not established.
He described it as a "false application" that was "in reality poorly worded and wrongly expressed but with no actual intention to gain public money on a false basis".
Happier times: The St Mirren Championship-winning board. They are from left to right David Nicol, Gordon Scott (chairman), Mr Wardrop, Chris Stewart and Tony Fitzpatrick,
But Mr Gillespie and Mr MacMillan failed in a bid to win a total of £80,000 in damages over what the judge decided were defamatory comments arising from the row after he decided that there were defences to breaches of the Defamation and Malicious Publication (Scotland) Act 2021 which were met.
They included that Mr Wardrop reasonably believed that comments complained of about the funding application made in a campaign statement and in the Herald were in the public interest.
The judge said the issues around the applications for millions of pounds worth of public funds "certainly raised issues on matters of public interest" and that Mr Wardrop "reasonably believed" that published comments were "in the public interest".
There was also a defence of "honest opinion" on other comments made in the Herald that was also met with the judge stating that it was "genuinely held" based on the evidence he had before him at the time.
Details that the charity was funding the case emerged in evidence from Duncan Sloan, a Kibble trustee.
According to the judge, Mr Sloan "confirmed that the pursuers' conduct of the present litigation is being funded by Kibble".
He adds: "As submitted for [Mr Wardrop] this action has not been raised on behalf of Kibble, but charitable funds have been used to facilitate this action. This can also give rise to some degree of concern, but ultimately it is a matter for the board of Kibble to determine how and when to spend funds and the very fact of this financial involvement does not undermine the evidence given."
In the wake of the land row, Mr Wardrop received a stadium ban by the club.
He had previously been credited with making fan ownership possible by teaming up with SMISA to initially begin a buyout process in 2016.
When SMISA became majority shareholders, they asked Mr Wardrop to remain on the board as one of their representatives and he willingly agreed.
Mr Wardrop was the mastermind behind the 1877 Club in the main stand of the SMISA Stadium and has also contributed several items to the mini-museum inside the club from his personal collection of memorabilia.
When he announced he was quitting the board in October 2022, a SMISA spokesman said: 'Everyone at SMISA would like to thank him for all his time and effort on the board, both before and after he agreed to become one of our representatives."
'Everything he ever did was undoubtedly with the best interests of St Mirren at heart.'
It emerged that Mr Wardrop had resigned in a row over the project.
At the time of the Kibble's share purchase in 2020, St Mirren said the charity which had been based in Paisley since 1840, "will bring its commercial expertise to St Mirren, helping bring in new income to be reinvested in the team, while working with the club to create new training and employment options for the young people in their care".
Mr Gillespie said at the time: "This new partnership will allow us to grow the business of St Mirren and at the same time increase Kibble's opportunities for employment, training and education as well as access to sport, health and wellbeing support.
"Kibble will bring our commercial expertise to St Mirren, creating a dynamic partnership and complementing the existing set up by offering the support and expertise that a large charity has in areas such as HR, finance, marketing and communications. The strength in this partnership will help bring in new income to be reinvested in the team, which in turn will generate more non-footballing income to create a sustainable business model for the club going forward."
Video: How St Mirren became a fan-owned club... featuring interviews with Mr Wardrop and St Mirren chairman John Needham.
Kibble's roots date back to 1840 upon the death of Miss Elizabeth Kibble, heiress to a large textile fortune.
On her death she left a portion of her wealth to 'found and endow in Paisley, an institution for the purpose of reclaiming youthful offenders against the laws'.
According to Kibble, it has evolved for more than a century and a half from this point and has "always stayed true to its original mission: supporting young people facing adversity".
The OSCR is the independent regulator and registrar for Scotland's charities and plays a crucial role in maintaining public trust and confidence in the charity sector.
A non-ministerial department of the Scottish Government, it is tasked with ensuring charities comply with the legal requirements under the Charities and Trustee Investment (Scotland) Act 2005.
Among its tasks is to ensure funds are used appropriately and that charities are governed properly.
In 2023, OSCR investigated several charities following complaints of poor governance and spending irregularities. In some cases, trustees were suspended and funds were frozen while investigations were carried out.
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