Appeal judges have been urged to look again at evidence that led to two former Dundee United players being labelled as rapists in a civil action.
Senior counsel for David Goodwillie argued that the judge who ruled against the players in the damages action fell into error by failing to take into account testimony from a man in a flat above the one where the offences were said to have taken place.
Dorothy Bain QC said Lord Armstrong’s treatment of the evidence from Clifford Wilson was “unsatisfactory and erroneous”.
The judge ruled earlier this year that Denise Clair was entitled to £100,000 agreed damages, saying she had proved her case against Goodwillie and David Robertson and that “they each raped her”.
Goodwillie, 28, who formerly played with United, Blackburn Rovers and Aberdeen, and his former Tannadice teammate Robertson, 31, who also played for St Johnstone, had maintained that the sex was consensual.
Both men have now appealed against Lord Armstrong’s decision to three judges, the Lord Justice Clerk, Lady Dorrian, Lady Clark of Calton and Lord Malcolm, at the Court of Session in Edinburgh.
During the case, Mr Wilson, who lived in the upstairs flat at the address at Greig Crescent, Armadale, in West Lothian, said he had heard giggling and laughing and what sounded like “normal sex” from the downstairs property.
In his judgement Lord Armstrong had said that Mr Wilson’s evidence was “sufficiently confused that little reliance ought to be placed on it”.
But Miss Bain said that what Mr Wilson described hearing was “supportive of a consensual encounter”.
Miss Clair, 31, who previously waived her right to anonymity, had gone out with a friend in Bathgate but woke the following morning naked in a house she did not recognise.
She contacted police and although an investigation was carried out no criminal prosecutions were brought. She was granted an award under the criminal injuries compensation scheme.
The hearing continues.