Two men charged with offences related to the acquisition and subsequent administration of Rangers FC have been awarded interim damages after the Lord Advocate admitted malice and want of probable cause in the Crown's actions against them.
Lord Tyre in the Court of Session ordered payment of £350,000 to David Whitehouse and £250,000 to Paul Clark, who were partners in a firm instructed by businessman Craig Whyte in his negotiations in 2010 and 2011 to acquire Rangers, and who were appointed joint administrators when the club's parent company went into administration in 2012. They acted until liquidators were appointed in October 2012.
The two men are currently suing Police Scotland and the Lord Advocate for a total of £14m in damages, alleging that they were subjected to wrongful detention, arrest and prosecution during police investigations in 2014 and 2015. All seven charges against them, alleging conspiracy to defraud and attempting to pervert the course of justice, were later either withdrawn by the Crown or ruled irrelevant by the High Court.
In their action – allowed to proceed after five judges overruled an earlier decision giving the Lord Advocate immunity from such claims – the two allege that at no point was there any justification for their detentions, committal or prosecution.
Having previously defended the case, the Lord Advocate has now admitted that the Crown, under his predecessor Frank Mulholland QC, acted unlawfully during a substantial part of the proceedings.
Documents recovered by the pursuers' advisers show senior Crown Office lawyers speaking about the "need to nail the Duff & Phelps people" – referring to the pursuers' firm at the time of their appointment as administrators. The court heard that no minutes appeared to exist of meetings chaired by Mr Mulholland to discuss strategy in the case.
Gerry Moynihan QC, for the Lord Advocate, said the Crown now accepted that the pursuers' right to liberty under article 5 of the European Convention on Human Rights had been breached. A minute of amendment had been lodged which admitted liability for the malicious prosecution for everything beyond the first petition appearance.
Police Scotland has made no similar admission. A further procedural hearing is due in September, with a full hearing scheduled for January 2021.