A SENIOR judge has told Scotland's senior law officer, the Lord Advocate that an admission over the malicious prosecution of former Rangers chief executive Charles Green in a failed club fraud case should have come sooner.
Lord Tyre spoke out after a court heard that a promised public apology by the former Lord Advocate James Wolffe QC took a year a year to materialise after it was first promised.
A legal team acting for Mr Green argued that he should get enhanced costs saying the Lord Advocate had unduly delayed admitting liability for malicious prosecution.
Mr Green won £6m from the Lord Advocate in a settlement over his £20m claim plus legal costs in August three years after prosecutors told him there is "now no evidence of a crime".
The 67-year-old businessman was arrested with several other men following a police probe into alleged fraud in relation to the sale of the current Scottish champions to businessman Craig Whyte in 2011 and a subsequent asset purchase while in liquidation.
Dubai-based Mr Green, whose Sevco consortium, bought the assets of the club business in liquidation nine years ago for £5.5m was due to receive compensation after Crown lawyers accepted he was subjected to a malicious fraud prosecution.
The decision to drop charges against Mr Green and others by the Crown Office had marked the end of the two-and-a-half-year long proceedings which saw only Craig Whyte face trial and led to no convictions.
The Inner House of the Court of Session paved the way for payouts to those wrongfully arrested when it ruled in 2019 that the Lord Advocate does not have immunity from claims of malicious prosecution in cases brought by former Rangers administrators David Whitehouse and Paul Clark of Duff and Phelps.
But Mr Green's legal team said there was no investigation of Mr Green's damages claim while Mr Whitehouse and Mr Clark were fighting for the right to bring their cases.
Prosecutors later admitted Mr Whitehouse and Mr Clark were wrongfully arrested and prosecuted and they later settled their action with each of them receiving £10.3 million each. Their legal bills worth £3 million each, were also paid for.
Lord Tyre raised concern about the time taken to accept liability in the case, but refused enhanced 'agent and client basis' costs while separately agreeing to additional fees.
Awards of expenses on an 'agent and client' basis are rare and implies some degree of censure as to the conduct of the litigation by the paying party.
But Lord Tyre said: "It does seem to me something that can be said in this case is that the admission of liability ought to have come sooner, and that the admission of liability having been made, there there may be an argument that an offer should have been made more quickly.
"Although I take the point that there was a lot of investigation [on the level of damages] to be done which depended on production and information by the pursuer."
Earlier he told Douglas Ross QC, acting for the Lord Advocate, there should be more concern about the failure to admit liability fairly speedily after former Rangers administrator David Whitehouse won the right to take a separate damages case over the failed fraud case, "because from my own knowledge of this it was plain that this had been a prosecution without a basis at all."
But he said he was "not persuaded" that delay in admission of liability is sufficient to justify the enhanced 'agent and client' basis costs.
Advocate Lord Keen of Elie QC for Mr Green said that where one of the parties conducted litigation incompetently or unreasonably and thereby caused the other party unnecessary expense, the court could impose a sanction through enhanced costs.
"This action was not between two private individuals. It involved the power of the state being brought to bear upon an individual and being brought to bear in a way that posed a real threat to his future liberty," he said.
"He was arrested. He was detained. He appeared on petition in 2015.
"The circumstances of arrest became a matter of some notoriety, it certainly went into the public domain.
"There was no evidence against Mr Green."
A letter was sent on behalf of the Lord Advocate on August 12, 2020 with a suggestion to negotiate a settlement but with no admission of liability and a commitment to issue a publc apology.
"One of the principal purposes of Mr Green bringing this action was to vindicate his reputation that had been reduced to tatters by virtue of what had happened from 2015 onwards, and no admission of liability was not going to resurrect his reputation," said Lord Keen.
A month later, the Lord Advocate formally admitted liability but a public apology did not materialise for a year.
On July 30, Mr Green was offered a "non-negotiable" proposal to settle for £4.8m Ten days later, on August 9, a new offer materialise - for £1.5m more than the non-negotiable sum. Mr Green decided to accept.
"I would submit that having regard to the way in which this matter emerged and was conducted, there are perfectly good grounds and indeed compelling grounds for awarding costs in order that Mr Green is safe from any liability for the costs incurred here," said Lord Keen.
"We had a period of two and a half years where there was no answer on liability," he said.
"We have the Lord Advocate adopting the position that pending the decision in Whitehouse, he didn't require to investigate the merits of the claim.
"And we have a settlement at the door of the court."
He added: "Given that there was never any evidence against Mr Green, It is difficult to conceive as to why it was necessary to wait until the August 10 to try and achieve settlement of this claim."
Mr Ross said Mr Green had "rightly received substantial damages and compensation" for malicious prosecution.
But he insisted that the time taken in defence of the action was "neither unreasonable nor reprehensible".
"It ultimately became plain that there was no proper basis for the prosecution of Mr Green," he said. "But in order to in order to reach that stage, a very substantial amount of work had to be done.
"Following the admission of liability those acting for the Lord Advocate made strenuous efforts with a view to seeking to settle the case.
"It's my respectful submission, that there was no conduct on behalf of the Lord Advocate in the defence of the action which unduly delayed proceedings, or could otherwise have been unreasonable or reprehensible and hence no justification for the award of expenses on an 'agent and client' basis. "
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