David John Whitehouse Against Philip Gormley Qpm And Others
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2018] CSOH 93 |
| Date | 06 September 2018 |
| Docket Number | A295/16 |
| Court | Court of Session |
| Published date | 06 September 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 93
A295/16
OPINION OF LORD MALCOLM
in the cause
DAVID JOHN WHITEHOUSE
Pursuer
against
PHILIP GORMLEY QPM AND OTHERS
Defenders
Pursuer: Currie QC, Duthie; Urquharts LLP
First Defender: Maguire QC, Watts, Lawrie; Ledingham Chalme rs LLP
Second and Third Defenders: Moynihan QC, Ross QC, Charteris; SGLD
6 September 2018
[1] David John Whitehouse (the pursuer) is one of the former administrators of Rangers
Football Club Plc. He has raised an action against first, the Chief Constable of Police
Scotland, second, the Procurator Fiscal For Specialist Casework in the Crown Office, and
third, the Lord Advocate. He seeks payment by the defenders, jointly and severally or
severally, of £9 million by way of damages for alleged wrongful detention, arrest and
prosecution based on common law fault and breaches of articles 5 and 8 of the European
Convention on Human Rights (ECHR). A similar action has been raised by
Mr Whitehouse’s co-administrator, Mr Paul Clark. This opinion follows upon a joint
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procedure roll debate in both actions when various issues of law were discussed. The main
topics were the nature and extent of the Lord Advocate’s immunity from civil suit at
common law, and whether, in respect of complaints concerning the conduct of police
officers, it is necessary to demonstrate that they acted maliciously and without probable
cause.
The circumstances and the parties’ contentions as set out in the pleadings
[2] At the outset it is necessary to describe the background to and the circumstances of
the present action. The pleadings extend to over 250 pages, therefore what follows should
be understood as a summary of what is a detailed and complicated picture. In late 2010 a
Scottish businessman, Craig Whyte, expressed interest in acquiring Rangers Football Club.
In March 2011 he engaged David Grier of MCR, a corporate restructuring advisory firm of
which the pursuer was a partner (prior to MCR’s acquisition by Duff & Phelps in October
2011), to assist in negotiations with the club’s lenders, Lloyds Banking Group. In May 2011
Craig Whyte, through an acquisition vehicle, Wavetower Limited, entered into an
agreement for the purchase of a controlling shareholding in the club and was appointed as a
director. The club struggled to meet its liabilities. In February 2012 it entered
administration. The pursuer and his colleague were appointed joint administrators. Later
that month the pursuer met with senior officers from Strathclyde Police and informed them
that preliminary investigations suggested that the acquisition of the club by Wavetower may
have involved illegal financial assistance. The administrators initiated proceedings at the
Royal Courts of Justice in London seeking payment of sums due to the club held by Collyer
Bristow, a firm of solicitors acting for Wavetower. Subsequently the administrators raised
proceedings for payment claiming an unlawful means conspiracy, on the basis that Craig
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Whyte and Gary Withey (Mr Whyte’s legal advisor and a partner at Collyer Bristow) had
made false representations to the previous owners as to the availability of funds to finance
the acquisition, and had acquired the controlling shareholding by fraud. The police were
notified of these allegations.
[3] On 25 June 2012 the Crown Office issued a press statement in the following terms:
“The Crown Office has today instructed Strathclyde Police to conduct a criminal
investigation into the acquisition of Rangers Football Club in May 2011 and the
subsequent financial management of the Club. The investigation into alleged
criminality follows a preliminary police examination of information passed to them
in February this year by the Club administrators. The Procurator Fiscal for the west
of Scotland will now work with Strathclyde Police to fully investigate the acquisition
and financial management of Rangers Football Club and any related reports of
alleged criminality during that process.”
At the hearing it was confirmed that the press release was issued on the instructions of and
with the authority of the then Lord Advocate.
[4] The club was marketed for sale by the administrators. In May 2012 a consortium led
by Charles Green entered into an agreement with the administrators. It obliged him to
pursue a company voluntary arrangement, with funding of £8.5 million, which failing to
purchase the business and assets of the club for £5.5 million. In June 2012 the creditors
rejected the CVA proposal. Mr Green’s acquisition vehicle, Sevco (Scotland) Limited,
acquired the business and assets of the club and paid £5.5 million to the administrators. In
October 2012 Jane Stephen and Malcolm Cohen of BDO were appointed joint liquidators,
with the pursuer and his colleague vacating office.
[5] During the police inquiry officers recovered materials by executing search warrants
at a range of locations, including the premises of banks and professional advisors involved
in the transaction. It is averred that the second defender, through his deputes, and the
Lord Advocate at all times directed the police investigation. They were made aware of all
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...3 Tchokhonelidze v Georgia (31536/07) [2018] ECHR 553 Weir v Jessop (No 2) 1991 JC 146; 1992 SLT 533; 1991 SCCR 636 Whitehouse v Gormley [2018] CSOH 93; 2020 SCLR 27; 2018 GWD 31–388 Williams v Department of Public Prosecutions [1993] 3 All ER 365; (1994) 98 Cr App R 209; [1994] RTR 61; [19......