David Whitehouse & Paul Clark v the Lord Advocate

A Court of Five Judges of the Court of Session has ruled in an appeal that the case for damages brought by David Whitehouse and Paul Clark (pursuers) against the Lord Advocate can proceed to a hearing of evidence on both of the grounds relied on by the pursuers.

The pursuers are each claiming damages against the Lord Advocate arising out of their prosecution in connection with their involvement in the sale of Rangers Football Club.

When the Club entered into administration, the pursuers were appointed as the joint administrators until liquidators were put in place.

The Crown Office brought charges of fraud against the pursuers in relation to the Club’s sale. However these charges were later either withdrawn by the Crown or dismissed by the court as irrelevant.

The pursuers allege that the prosecution was malicious and had not been based on sufficient evidence. They argue that they are accordingly entitled to damages at common law and in respect of a breach of their rights to a private life as guaranteed by the European Convention on Human Rights.

The Lord Advocate argued that the claims should be dismissed without the need for any evidence to be led. The Lord Advocate was immune from suit in respect of his acts, and those for whom he is responsible, in terms of a case (Hester McDonald) in 1961. And Article 8 of the European Convention on Human Rights was not engaged by a criminal prosecution.

The Lord Ordinary (the judge at first instance) ruled that only the human rights claim could proceed to a proof (a hearing of evidence), but that in terms of the 1961 case, which was binding on a single judge, the Lord Advocate had immunity from suit in respect of the common law claim. The Lord Advocate had argued that this protection was necessary for his deputes to carry out their work robustly and effectively as independent public prosecutors in Scotland.

The Court of Five Judges which heard the pursuers’ appeal agreed with the finding of the Lord Ordinary in relation to the human rights claim, but ruled that the Lord Advocate was not immune from suit in relation to the common law delict (wrong) of malicious prosecution and that therefore the whole of the pursuers’ case could go forward.

The case may now continue to proof at which evidence will be led and after which a judgment will be made as to whether the pursuers’ allegations have been made out.

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