Law lord can be sued in £9m Rangers case
Top judges strip him of immunity in landmark ruling
‘Privilege is not a defence’
RANGERS administrators have been given the goahead to sue Scotland’s top law officer in a £9million 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 and Mr Clark are seeking compensation for alleged wrongful detention, arrest and prosecution.
Mr Whitehouse, of Cheshire, brought a damages claim seeking £9million against the Lord Advocate and former Police Scotland Chief Constable Phil Gormley, with Mr Clark, of Surrey, suing for £5million.
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. But a specially convened bench of five judges at the Court of Session in Edinburgh, including the Lord President Lord Carloway, and Lord Justice Clerk Lady Dorrian, has ruled that is no longer the case.
Lord Carloway said a previous case, decided 58 years ago, which said the Lord Advocate cannot be sued for damages in a civil action 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.’
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 judgment and similar matters.’ But she added: ‘I do not consider that immunity from suit for malicious prosecution is necessary for the discharge of the Lord Advocate’s duties.’
The other three judges, Lady Paton, Lord Menzies and Lord Brodie, agreed.
Mr Whitehouse and Mr Clark were the subject of an abortive attempt to prosecute them in the High Court following the takeover of the Ibrox club by businessman Craig Whyte and Rangers’ 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.
Mr Whitehouse and Mr Clark, of Duff & Phelps, were appointed as joint administrators and informed police that the acquisition of Rangers by Mr Whyte through a company, Wavetower, may have involved illegal financial assistance.
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’.
The pair maintain that at no point was there any justification for their detention or prosecution.
They claim that the Lord Advocate never had sufficient evidence for any of the charges brought against them.
Both the Lord Ad vocate and the former chief constable are contesting the actions brought by the former administrators.