A former Rangers administrator was subjected to very serious “wholly unfounded” criminal allegations for 18 months which had a significant impact on him, his family and his career, a court heard today.
A judge was told that it would be “anomalous” that if David Whitehouse had been the subject of such conduct as claimed in a damages action that he does not have redress in civil proceedings.
Mr Whitehouse and his fellow administrator, Paul Clark, of Duff & Phelps, are suing Scotland’s current senior officer, the Lord Advocate James Wolffe QC and former Chief Constable Philip Gormley.
Mr Whitehouse (52) of Cheshire, has raised a claimed for pounds nine million in damages and Mr Clark (53) of Surrey, is seeking in excess of pounds five million.
During a debate in the action at the Court of Session in Edinburgh the Lord Advocate has maintained that there is legal authority giving him immunity from such claims.
But Heriot Currie QC, for Mr Whitehouse, said: “It is anomalous that a party who had been subjected to the conduct averred in this case does not have a remedy.”
Mr Whitehouse and Mr Clark faced criminal proceedings in the wake of the takeover of the Ibrox club by Craig Whyte from Sir David Murray and its subsequent administration, liquidation and sale.
The Crown dropped several charges and a High Court judge, Lord Bannatyne, dismissed the remainder in February 2016.
The administrators then raised a civil action seeking compensation maintaining they were subjected to a wrongful prosecution and that their human rights had been infringed.
Mr Currie told Lord Malcolm that there was no case against Mr Whitehouse on any of the charges levelled against him that the advocate depute accepted that the Crown did not have an evidential basis for the main conspiracy charge.
He said: “These are the very serious nature of the allegations made by Mr Whitehouse against the procurator fiscals who put him on petition and the Lord Advocate who served indictments against him.”
“For 18 months the pursuer was subject to very serious, we say wholly unfounded, allegations with a significant adverse effect on him, his family and his professional career,” said Mr Currie.
He said it was discovered last week that the police had recovered emails of Mr Whyte which had been conveyed to the Crown Office but not disclosed during the criminal proceedings.
Mr Currie said the fact that the defence was able to bring an end to the prosecution was “in no way a substitute for a remedy for Mr Whitehouse over the alleged conduct of the fiscals and Lord Advocate”.
The senior counsel argued that the court required to balance any justification for immunity against the consideration that in general a party should have a remedy for a wrong. He said that in England there was no absolute immunity for the Crown Prosecution Service.
He said it was contended that in the present case the Crown had grossly exceeded or abused its powers.
Mr Currie argued that the conduct of the Lord Advocate should be open to scrutiny by the court from when the Crown Office issued a press statement in 2012 until the detention and arrest of the administrators in a human rights claim advanced by the pair.
“The issue would be whether there was ever an evidential basis for that detention, whether that detention was malicious, reckless, outwith the competence,” he said.
He argued that in the legal authority over the Lord Advocate’s privilege, which is more than 50 years old, the court did not balance the immunity issue against the public interest and in particular the principle that a wronged person ought not to be denied a remedy.
Mr Currie said that in the present day public confidence in an authority was more likely to be achieved by transparency and accountability.
The hearing continues.