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Relegated No Longer? The Role of Malice in the Delictual Protection of Liberty: Whitehouse v Gormley

Document Cited authorities 3 Cited in Related
Author
DOI10.3366/elr.2019.0525
Published date01 January 2019
Date01 January 2019
Pages75-82

Whitehouse joins a long list of reported cases – some of which have already featured in these pages3 – which have arisen after the sale(s) of Rangers Football Club by, and to, various parties.4 Whitehouse was, as an employee of Duff and Phelps, appointed by Craig Whyte to conduct the administration of Rangers’ old holding company. Subsequently, Strathclyde Police were instructed to investigate Whyte's initial share acquisition, and obtained a warrant to search the administrator's offices in London and Manchester. Documents, including items which were privileged and others which were outside the scope of the warrant, were also taken from a search of a connected law firm, for which the authorities were later rebuked by Scottish5 and English6 courts. The Crown Office concluded that there were reasonable grounds to charge the pursuer: first, for his involvement in a fraudulent scheme (by obscuring the fact that Craig Whyte was using outside funding to purchase his shares); and, secondly, with attempting to pervert the course of justice. The pursuer was arrested at his home in England and transported to Glasgow, where he was detained for three days in November 2014. After being granted bail, he was later detained overnight pending an appearance in court in September 2015. Subsequently, a series of indictments were issued against the pursuer. Ultimately, however, all charges were dropped in June 2016.

The pursuer raised an action seeking compensation from the Lord Advocate and Police Scotland, craving damages of £9 million. He alleged financial loss (as an insolvency practitioner, the pending prosecution rendered him unable to practice) and reputational damage. His claims were founded on allegations that the Lord Advocate's pursuit of the investigation and prosecution amounted to the delict of malicious prosecution,7 and that the injury to his liberty brought about by four day's detention at the order of Police Scotland was also actionable in delict. The action against the Lord Advocate was held to be barred by the immunity that attaches to that office;8 this note will therefore discuss only the claim against the police.

The protection of liberty through the law of delict in Scotland is under-theorised. The fullest consideration, which unfortunately does not appear to have been relied on in Whitehouse, is Chapter 5 of Professor Elspeth Reid's Personality, Confidentiality and Privacy in Scots Law.9 It is at least clear that the delict has two elements: (i) the defender must have constrained...

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