A FORMER administrator of Rangers who is suing Scotland's most senior prosecutor has lost a battle over documents which he wanted to use as evidence in his future legal action.
David Whitehouse and his wife have instructed lawyers to sue the Lord Advocate James Wolffe QC at the Court of Session, Scotland's highest civil court.
The couple claim that Scottish prosecutors acted inappropriately during a police probe into the Glasgow club's financial affairs in 2014.
Mr Whitehouse was charged with financial wrongdoing during the investigation. Prosecutors also obtained a legal order from the Court of Session which froze Mr Whitehouse's assets.
However, Mr Whitehouse was later cleared of any criminal wrongdoing and the order freezing the businessman's assets was later lifted because he had done nothing wrong.
This prompted Mr Whitehouse and his wife to sue the Lord Advocate for £180,000 at the Court of Session.
Their lawyers claim that the actions of prosecutors affected Mr Whitehouse's ability to make a living and caused them "loss of reputation, anxiety and distress".
The case is expected to be heard later this year.
However, in preparation for the action, lawyers for the couple went to the Court of Session to ask judge Lord Brodie to ask for permission in opening a 'confidential' envelope containing email communications.
Their emails were sent between prosecutors acting in the action to have Mr Whitehouse's assets frozen.
The Whitehouse's lawyers argued that being able to read the emails would help them prepare their case and be used as evidence in the action against the Lord Advocate.
However, lawyers acting for the Lord Advocate argued that Mr Whitehouse's legal team shouldn't have access to the emails because they contain information which is privileged and should remain confidential.
Mr Wolffe's lawyers argued that the emails were covered by legal advice privilege and shouldn't be disclosed to Mr Whitehouse's legal representatives.
In a written judgement issued at the Court of Session on Thursday, Lord Brodie ruled in favour of the Lord Advocate.
Lord Brodie wrote: "In my opinion the defender is entitled to assert legal advice privilege in respect of the contents of the sealed envelope.
"It follows that they should not be made available to the pursuers and subject to any further procedure may be returned to the defender."
READ MORE: Ex Rangers administrator launches legal bid for criminal prosecutions over failed fraud arrests
The legal action arises from the events surrounding Rangers earlier this decade. Mr Whitehouse and Paul Clark were appointed administrators of Rangers in February 2012.
The club went into liquidation in October 2012 and both Mr Whitehouse and Mr Clark left their positions.
Police then arrested Mr Whitehouse and charged him with offences relating to businessman Craig Whyte's takeover of Rangers in 2011.
Both Mr Whitehouse and Mr Clark were later cleared of any legal wrongdoing. An order placing a freeze on Mr Whitehouse's financial assets was granted but later recalled in December 2015.
The judge who recalled the financial order noted that prosecutors failed to provide the court with the full facts surrounding the case.
Lord Brodie wrote: 'The restraint order was recalled by another judge on December 17 2015 with that judge noting that the defender's failure to aver the full factual position amounted to a 'clear and very serious breach of the duty of disclosure and candour' in relation to reasonable cause to believe that the first pursuer had benefited from criminal conduct."
This prompted Mr Whitehouse and Mr Clark to sue Philip Gormley, the former Chief Constable of Police Scotland for £9 million at the Court of Session. They claim that detectives breached their human rights.
Now, Mr Whitehouse and his wife have launched another legal action against the Lord Advocate.
The judgement tells of how the request to access the email communications were heard during a procedural hearing held at the court earlier this year.
Lawyers acting for the Lord Advocate said that communications involving confidential information between lawyers were protected by privilege.
The lawyers argued that the contents of the emails contained such information and that the messages shouldn't be disclosed in this case.
Lawyers for Mr Whitehouse and his wife claimed that the rules surrounding legal privilege didn't apply in this case and they should be allowed to see the emails.
In his judgement, Lord Brodie said he opened a 'confidential' envelope containing the emails. He said he was able to determine that the contents of the envelope were eight emails which were sent over a period of 21 hours on December 16 and December 17 2015.
He said the emails involved an Advocate Depute, the lawyer who acts for the Lord Advocate in court actions, and Crown Office officials.
Lord Brodie wrote: "The content includes summaries of facts, statements relating to the law as it relates to restraint orders and evaluations of the facts in the light of the law.
"The exchange has the appearance of a review of the defender's position in relation to the forthcoming application for recall of the restraint order.
"What appears from the emails is an obviously private discussion of the application of the law to the available facts in an instant case, amount for persons on whom the defender's predecessor in office relied for legal advice.
"That in my opinion, gives the discussion and therefore the emails by which the discussion was carried out a confidential character.
"The then Lord Advocate, as represented by his depute, was the recipient of legal advice, albeit that the Advocate Depute was familiar with the relevant law and contributed to the discussion."
The full hearing in the action is expected to take place on June 18 2019.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereLast Updated:
Report this comment Cancel