A FORMER Lord Advocate has questioned the right of a global finance company responsible for running Rangers when it financially imploded to claim misconduct in public office while pursuing a £25m claim over damage to its business over the malicious club fraud case scandal.
Lawyers for the former head of the Crown Office and Procurator Fiscal Service James Wolffe are taking issue with the action by US-based Duff and Phelps which comes after it was admitted their employees David Whitehouse and Paul Clark were maliciously prosecuted in their action taken against prosecutors and the police.
Both settled out of court in December and the Crown Office confirmed both men were awarded £10.5m damages, while legal costs will be at least £3m.
Former Rangers administrators Mr Whitehouse, Mr Clark and five others were subjected to detention and criminal proceedings in relation to fraud allegations in the wake of Craig Whyte’s disastrous purchase of Rangers from Sir David Murray for £1 in May 2011 and its subsequent sale before a judge dismissed all charges.
The fraud case arose after the club under Mr Whyte went into administration nine months after he bought it, with debts soaring over £100m while the team ended up relegated to the bottom rung of the Scottish football pyramid.
Roddy Dunlop QC for Duff and Phelps said Mr Wolffe had put forward an “entitled to sue” point which he said was posed in this way: “Is the misfeasance actionable by the pursuer.”
He said: “What the defendant is getting at is, well, we didn’t prosecute you Duff and Phelps so, so where’s the beef.
“The question is can a party, who was not itself prosecuted, but who offers to prove significant reputational damage from a prosecution that was [it is claimed] itself misconduct in public office, does that party have title, is that actionable?”
Mr Whitehouse and Mr Clark
Mr Dunlop has previously called for a summary decree – an order which the court can grant if a party successfully persuades the judge that there is no real defence to an action even though a defence has been presented.
Gerry Moynihan QC for the the former Lord Advocate has previously indicated to Lord Tyre that he would be seeking dismissal of the case and that there were serious questions over quantifying the damages alleged to have been inflicted.
While the Court of Session say that the current claim is for £25m – it has been indicated that the quantum could change.
Mr Dunlop also indicated that he wanted to use evidence in the claim made by Mr Whitehouse and Mr Clark but could not do that without Crown Office approval as it risked contempt of court actions.
Douglas Ross QC for Mr Wolffe said Mr Dunlop should make an application to use the information.
“The material which it is understood the pursuer seeks access to is extensive and includes sensitive material,” he said.
“Others notably who are accused of [misfeasance] which the pursuer characterises in its note of proposal as criminal may have an interest. Careful consideration should be given to the basis on which access is sought and the matter should, in my submission, be under the control of the court.”
Lord Tyre postponed the case for another hearing for November.
Five of the seven men charged in relation to Rangers fraud cases have been pursuing compensation complaints over wrongful arrest against either Police Scotland, the Crown Office or both with a collective claim now standing at £113m.
Court of Session judge Lord Tyre has also ruled that David Grier, a Duff and Phelps executive that there was no “probable cause” to prosecute Mr Grier who is also seeking £5m damages from the Lord Advocate and £9m from Police Scotland.