Former administrators at Rangers football club have won a ruling from Scotland’s senior judges that the country’s top law officer is not immune from a civil damages claim in a landmark case.
David Whitehouse and Paul Clark will now be able to pursue the full compensation actions they have raised against the current Lord Advocate James Wolffe QC.
Mr Whitehouse, of Cheshire, brought a damages claim seeking £9 million against the Lord Advocate and former Police Scotland Chief Constable Phil Gormley, with Mr Clark, of Surrey, suing for £5m pounds 5 million.
Following a procedural hearing last year judge Lord Malcolm held that only a human rights case could proceed against the Lord Advocate who otherwise enjoyed absolute immunity.
- READ MORE: Crown pays over £80k to ex-Rangers administrator David Whitehouse over "wrongful" restraint order
But a specially convened bench of five judges at the Court of Session in Edinburgh, including the Lord President, Lord Carloway, and the Lord Justice Clerk, Lady Dorrian, has ruled that is no longer the case.
Lord Carloway said a previous case, decided 58 years ago, whose outcome was that the Lord Advocate cannot be sued for damages in a civil action for any act done by him or on his behalf, was wrongly decided and should be overruled.
The Lord President said: “There is no immunity from suit. Privilege is not a defence to malicious prosecution. “Where there is proof of malice and lack of probable cause in relation to the general acts of a public official, including the Lord Advocate and those for whom he is responsible, the matter is actionable.”
The Lord President said that even if the earlier case, decided by three judges, was determined to be correctly decided it would have been overruled on the basis that public policy no longer supported its continued application.
Lady Dorrian said: “I accept that it is in the interests of justice that prosecutors should be protected against the consequences of mistake, negligence, error of judgement and similar matters.
“However this does not require an immunity from suit which protects the prosecutor who acts maliciously and without probable cause,” she said.
Lady Dorrian said: “I do not consider that immunity from suit for malicious prosecution is necessary for the discharge of the Lord Advocate’s duties.”
The remaining three judges, Lady Paton, Lord Menzies and Lord Brodie, agreed.
Mr Whitehouse and Mr Clark are seeking compensation for alleged wrongful detention, arrest and prosecution.
They were the subject of an abortive attempt to prosecute them in the High Court following the takeover of the Ibrox club by Craig Whyte and its subsequent administration and liquidation.
Several charges were dropped by the Crown and the remainder against them were dismissed by judge Lord Bannatyne.
Both men are seeking damages arising out of their treatment by the police and prosecution authorities in connection with their involvement in the winding up and sale of the club.
Mr Whitehouse and Mr Clark, of Duff & Phelps, were appointed as joint administrators and informed Strathclyde police that the acquisition of Rangers by Mr Whyte through a firm, Wavetower, may have involved illegal financial assistance.
- READ MORE: Scotland's chief law officer admits 'wrongful' restraint order over former Rangers administrator
But they were detained by police in dawn raids at their homes in 2014 on suspicion of being involved in a “fraudulent scheme and attempt to pervert the course of justice”.
Mr Whitehouse and Mr Clark maintain that at no point was there any justification for their detention or prosecution. They claim the Lord Advocate never had sufficient evidence for any of the charges brought against them.
Mr Whitehouse claims there were failures by the Crown to make proper disclosures of documents and recordings, made by Mr Whyte of his conversations with Charles Green who acquired Rangers, which were exculpatory of the administrators. Both the Lord Advocate and chief constable are contesting the actions.
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