Reclaiming Motions In The Causes (first) David John Whitehouse And (second) Paul John Clark Against (first) The Chief Constable, Police Scotland And (second) The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Menzies,Lady Paton,Lord Justice Clerk,Lord President |
| Neutral Citation | [2019] CSIH 52 |
| Date | 30 October 2019 |
| Docket Number | A293/16 and A295/16 |
| Court | Court of Session |
| Published date | 30 October 2019 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2019] CSIH 52
A293/16 and A295/16
Lord President
Lord Justice Clerk
Lady Paton
Lord Menzies
Lord Brodie
OPINION OF LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motions
in the causes
(FIRST) DAVID JOHN WHITEHOUSE; and (SECOND) PAUL JOHN CLARK
Pursuers and Reclaimers
against
(FIRST) THE CHIEF CONSTABLE, Police Scotland; and
(SECOND) THE LORD ADVOCATE
Defenders and Respondents
First Pursuer: Dunlop QC, McKinlay; Urquharts (for Livingstone Brown, Glasg ow)
Second Pursuer: Fairley QC, McNaughtan; Kennedys Scotland (for Belt rami & Co, Glasgow)
First Defender: no appearance
Second Defender: Moynihan QC, DB Ross QC, Charteris; Scottish Government Legal Directorate
30 October 2019
Introduction
[1] These reclaiming motions (appeals) relate to two separate actions by the pursuers
against the Chief Constable and the Lord Advocate. The pursuers each claim damages
against both defenders arising out of their treatment by the police and the prosecution
authorities in connection with their involvement in the winding up and sale of Rangers
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Football Club. The reclaiming motions do not concern the Chief Constable, against whom
claims, which are presented under Article 5 of the European Convention on Human Rights,
are to proceed to a proof before answer. They concern only the Lord Advocate. It is
accepted that he is responsible for the acts of the Advocates Depute and the Procurator
Fiscal Deputes who were involved in the case.
[2] The Lord Advocate contends that he and the ADs and PFDs have immunity from
suit in terms of Hester v MacDonald 1961 SC 370. The first issue, as developed at the Summar
Roll hearing, is whether the law, as stated in Hester, was correctly decided or whether the
Lord Advocate is liable in damages for acts which are malicious and without probable cause.
The second is whether, if Hester was correctly decided, it should nevertheless by overruled
on the basis that the policy considerations which existed in 1961 are not applicable in the
modern era. The third is whether the pursuers’ cases, in so far as they were based on the
right to respect for private life in Article 8 of the Convention, is relevant for inquiry.
Background
[3] The written pleadings in the two cases run respectively to 300 and almost 175 pages.
The following outline of events is a compilation of those averments, some of which have
been admitted, but others not. The pursuers’ cases, as set out below, should not be taken as
established; the averments have yet to be proved. The pursuers aver that they were the
subject of detentions, arrests and prosecutions of a broadly similar nature. In late 2010, a
businessman, namely Craig Whyte, wanted to acquire Rangers. In March 2011, he engaged
MCR, who were a corporate restructuring advisory firm in which the pursuers were
partners, to assist in negotiations with the club’s lenders, the Lloyds Banking Group. MCR
were taken over by Duff & Phelps in October 2011. The pursuers became partners of that
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firm. In May 2011, Mr Whyte, through an acquisition vehicle, namely Wavetower Ltd,
agreed with Lloyds to buy a controlling shareholding in the club. Mr Whyte was appointed
as a director. In February 2012 Rangers entered administration.
[4] The pursuers were appointed as joint administrators of Rangers. They informed
Strathclyde Police that the acquisition of Rangers by Wavetower may have involved illegal
financial assistance. They initiated proceedings in England for payment of sums due to
Rangers which were being held by Collyer Bristow, who were Wavetower’s solicitors. They
also raised proceedings for damages based upon an “unlawful means conspiracy” whereby
Mr Whyte and a partner at Collyer Bristow had: (i) made false representations about the
availability of funds to finance the acquisition; and (ii) acquired the controlling shareholding
by fraud. The police were told of these allegations. On 25 June 2012 the Crown Office
issued a press statement stating that they had instructed the police to conduct an
investigation into the acquisition and financial management of Rangers. In May 2012,
another acquisition vehicle, namely Sevco (Scotland) Ltd, acquired the business and assets of
Rangers on behalf of Charles Green and associates for £5.5 million. During 2012,
Mr Whitehouse provided three statements to the police and Mr Clark provided four. In
October 2012 the pursuers vacated office following the appointment of new joint liquidators.
[5] In August 2013, the police executed search warrants, which had been granted by a
sheriff at Glasgow, at Duff & Phelps’ London and Manchester offices. Duff & Phelps
instructed their solicitor to liaise with the police in relation to documents, which they
maintained were either not within the scope of the warrant or over which legal privilege
was claimed. In February 2014, the Crown Office assured Duff & Phelps that the police had
not reviewed the material which was subject to the privilege claim. This was not true.
[6] In November 2014, Duff & Phelps’ solicitor and counsel had a meeting with the
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Whitehouse v Lord Advocate
...September 2019. At advising, on 30 October 2019, the court allowed the reclaiming motion and allowed the pursuer a proof before answer ([2019] CSIH 52; 2020 SC 133). The cause was thereafter transferred to the commercial roll (Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 19......