Whitehouse v Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Judgment Date | 09 May 2019 |
| Neutral Citation | [2019] CSOH 38 |
| Docket Number | No 35 |
| Court | Court of Session (Outer House) |
| Date | 09 May 2019 |
[2019] CSOH 38
Outer House
Lord Brodie
AB v Ministry of Justice [2014] EWHC 1847
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Crown Office and Procurator Fiscal Service, Criminal Justice and Licensing (Scotland) Act 2010 (Section 164) Code of Practice — Disclosure of Evidence in Criminal Proceedings (COPFS, Edinburgh, June 2011) (Online: https://www.copfs.gov.uk/images/Documents/Prosecution_Policy_Guidance/Guidelines_and_Policy/Code%20of%20Practice%20-%20Disclosure%20of%20Evidence%20in%20Criminal%20Proceedings.pdf) (13 August 2019)
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Evidence — Admissibility — Confidentiality — Legal advice privilege — Lord Advocate — Whether Lord Advocate was entitled to assert legal advice privilege
Process — Commission and diligence — Recovery of documents — Legal advice privilege — Lord Advocate — Whether Lord Advocate was entitled to assert legal advice privilege
David John Whitehouse and another raised an action for damages against the Lord Advocate. A diet of proof was fixed for 18 June 2019. The pursuers sought and obtained an order for recovery of documents from the defender who produced certain documents within a sealed confidential envelope. The action called before the Lord Ordinary (Brodie) on the motion roll, on 9 April 2019, on the pursuers' opposed motion to open the confidential envelope and to allow its contents to be disclosed.
The pursuers, a husband and wife, raised an action for damages against the Lord Advocate on the basis that the operative averments of a restraint order petition he presented in terms of the Proceeds of Crime Act 2002 (cap 29) were false and unsupported by evidence. The pursuers obtained an order for recovery of documents from the Lord Advocate for, inter alia, documents showing or tending to show the basis upon which the Crown determined that an application for a restraint order should be made. The Lord Advocate produced copies of emails exchanged between Crown counsel and legally qualified officials of the Crown Office and Procurator Fiscal Service (‘COPFS’) in a sealed confidential envelope. He opposed the pursuers' motion to open up the confidential envelope on the basis that the emails were exempt from disclosure by virtue of legal advice privilege (‘LAP’).
The parties agreed that for LAP to exist: (1) there must be a client; (2) advice must have been given by a lawyer in that capacity; and (3) LAP must not have been waived, but the parties respectively maintained or denied that each requirement was met.
Held that: (1) the Lord Advocate and his deputes could be clients and that they were lawyers did not preclude this (paras 21, 24); (2) in presenting the petition for a restraint order, the Lord Advocate was not acting on anyone else's behalf and was acting in a client-like role in which he was entitled to be represented by an Advocate-depute who may require advice from legally qualified officials (para 25); (3) the prior extensive recovery of documents did not constitute a waiver of LAP for all documents (para 32); (4) the emails contained a private discussion of the application of the law to the available facts, and the Lord Advocate was entitled to assert LAP accordingly (paras 40, 41); and motion refused.
Three Rivers District Council and anr v Bank of England (No 6) [2005] 1 AC 610 applied.
At advising, on 9 May 2019—
Lord Brodie—
[1] This is an unusual action. The pursuers, who are husband and wife, sue the Lord Advocate for damages on the basis that, on 4 December 2015, he made an ex parte application to a judge of the Court of Session in terms of sec 121(2) of the Proceeds of Crime Act 2002 (cap 29) by presenting a petition, the operative averments of which were false, with the result that the judge made a restraint order in terms of sec 120 of the Act. While the pursuers do not say in terms that the defender knew that the averments in his petition were false, they do have pleadings from which it could be inferred that the averments in the petition were, at the very least, made recklessly. The pursuers offer to prove that the averments in the petition ‘were entirely unsupported by evidence’ and that ‘[in] material respects, the defender had evidence which actively undermined the factual position set out in the petition’. Remarkable as these averments may be thought to be, equally remarkable is the fact that the defender effectively admits them. The restraint order was recalled by another judge on 17 December 2015 with that judge noting that the defender's failure to aver the full factual position amounted to ‘a clear and very serious breach of the duty of disclosure and candour’ in relation to reasonable cause to believe that the first pursuer had benefited from criminal conduct (see sec 119(2)(b)) and fear of dissipation of assets (see Jennings v Crown Prosecution Service). He awarded expenses against the defender on an agent and client basis. At answer 8 of the record in the present action the defender admits that his actions ‘in applying for and securing a restraint order against the pursuers on 4 December, 2015 were wrongful in the respect of a failure to discharge the duty of disclosure and candour as found by the Judge when recalling the order.’
[2] The background to the defender's application for a restraint order and accordingly this action, is the insolvency of Rangers Football Club plc (‘the club’), the history of which the courts have become familiar with. The first pursuer is an insolvency practitioner. On 14 February 2012 he was appointed joint administrator of the club along with his colleague Paul Clark. On 14 June 2012, following creditors' rejection of a proposal for a voluntary arrangement the business and assets of the club were sold. On 31 October 2012 joint liquidators were appointed and the first pursuer and Mr Clark vacated office. On 14 November 2014 the first pursuer was arrested and charged with offences related to the acquisition of the club in 2011, prior to its administration. On 1 September 2015 he was arrested again and charged with offences relating to the administration period. On 15 September 2015 he was indicted in the High Court, together with six co-accused. At a preliminary hearing on 5 February 2016 it was argued on his behalf that all seven of the charges against him were irrelevant. The Advocate-depute, without offering a response, conceded the position in relation to five of the charges and withdrew them. On 22 February 2016 the court determined that the remaining two charges were irrelevant and dismissed them. In a separate action for damages, based on very extensive pleadings, the first pursuer sues, inter alia, the present defender, for a variety of...
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