Former administrators at Rangers football club have won a ruling from Scotland’s senior judges that the country’s top law officer is not immune from a civil damages claim in a landmark case.
David Whitehouse and Paul Clark will now be able to pursue the full compensation actions they have raised against the current Lord Advocate James Wolffe QC.
Mr Whitehouse, of Cheshire, brought a damages claim seeking £9 million against the Lord Advocate and former Police Scotland Chief Constable Phil Gormley, withMr Clark, of Surrey, suing for £5m.
READ MORE: 'He is so vital to us' - Steven Gerrard hails Ryan Jack's influence as Rangers defeat Ross County
READ MORE: One of Steven Gerrard or Neil Lennon 'will lose their job next summer'
Following a procedural hearing last year, judge Lord Malcolm held that only a human rights case could proceed against the Lord Advocate who otherwise enjoyed absolute immunity.
But a specially convened bench of five judges at the Court of Session in Edinburgh, including the Lord President, Lord Carloway, and the Lord Justice Clerk, Lady Dorrian, has ruled that is no longer the case.
Lord Carloway said a previous case, decided 58 years ago, which said the Lord Advocate cannot be sued for damages in a civil action for any act done by him, or on his behalf, as public prosecutor was wrongly decided and should be overruled.
The Lord President said: “There is no immunity from suit. Privilege is not a defence to malicious prosecution.”
He added: “The fact that a flood of actions is unlikely to occur appears to be the lesson learned from the many jurisdictions, both in Europe and in the Commonwealth, in which no, or a very limited, immunity exists.”
The Lord President said that even if the earlier case, decided by three judges, was determined to be correctly decided it would have been overruled on the basis that public policy no longer supported its continued application.
Mr Whitehouse and Mr Clark are seeking compensation for alleged wrongful detention, arrest and prosecution.
They were the subject of an abortive attempt to prosecute them in the High Court following the takeover of the Ibrox club by Craig Whyte and its subsequent administration and liquidation.
Several charges were dropped by the Crown and the remainder against them were dismissed by judge Lord Bannatyne.
Both men are seeking damages arising out of their treatment by the police and prosecution authorities in connection with their involvement in the winding up and sale of the club.