Consultant prosecuted over Rangers sale fails in motion for summary decree in £2m damages claim against Police Scotland

David Grier, 57, a former employee of Duff & Phelps who acted as an adviser to Craig Whyte in his purchase of the club from Sir David Murray, raised an action for damages against the Chief Constable of Police Scotland over his alleged “wrongful detention, arrest and prosecution”.

The pursuer was seeking summary decree in respect of the merits of the action, which if successful would have left only the amount of damages to be paid to him to be determined, but a judge in the Court of Session rejected the move after ruling that the defender was “not bound to fail” and that there were issues to be tried which required the hearing of evidence.

‘Conspiracy to defraud’

Lord Bannatyne heard that the pursuer was seeking £2m as damages based on allegations of “unlawful and malicious conduct” of the defender’s agents after he was arrested in 2014 and charged with “conspiracy to defraud” over his role in the acquisition of Rangers in 2011.

Mr Grier was accused of conspiring with others to mislead the club’s independent committee about the funding of the takeover.

It was alleged that he was aware that it had been represented to the Murray Group, the independent committee and Lloyds bank that the acquisition was being funded personally by Mr Whyte when in reality the funds to be used were advances for future seasons ticket sales provided by Ticketus, which gave a “misleading impression” of the liquidity of Mr Whyte and the ultimate liquidity of Rangers.

The club went into administration in 2012 as it was unable to meet its liabilities, following which the pursuer and others connected with the takeover were investigated after preliminary investigations suggested that the acquisition may have involved “illegal financial assistance”. 

The pursuer was arrested at his home in England on Friday 14 November 2014 by officers of Police Scotland and taken to Helen Street station in Glasgow, where he spent the weekend in custody.

An indictment was served on the pursuer and others but following a number of preliminary hearings at the High Court a judge dismissed the charges against the pursuer in April 2016. 

‘Malicious prosecution’

The pursuer raised the present claim for damages based on the actions of the detective chief inspector and detective inspector who led the investigations against him and prepared reports for the Crown in the prosecution.

He sought summary decree on the basis that the Crown relied upon the communications from the defender’s agent as being true and accurate when they were in fact “false”.

It was submitted that a person providing information to the prosecuting authorities could competently be sued for malicious prosecution if “malice and want of probable cause” were shown.  

The absence of any evidence to support an allegation, which appeared now to be accepted by the defender, rendered it obvious that there could be no “reasonable” cause, in that there was no reason for making the statement, and thus no “probable” cause.

It was argued that if a police officer knew there was no evidence for an allegation, or it was presumed that he must have known, then he could not in making the report of the crime have been acting in accordance with his duty – he must have been “deliberately acting maliciously”, malice being acting for an “improper motive”, and it did not require actual evincing of malice and ill will.  

‘Issues to try’

Refusing the motion for summary decree, the judge ruled that the “complexity of the case” meant it could not be determined in a summary manner.

In a written opinion, Lord Bannatyne said: “The pleadings as I have earlier said were very extensive;  the issues between the parties both of fact and law were numerous and complex; substantial notes of argument were submitted, which were supplemented by lengthy oral submissions which were further added to by supplementary notes of argument on behalf of both parties submitted after the hearing of the motion; the documentary evidence relied on and in particular the statements of the detective chief inspector were lengthy. 

“This motion is not capable for these reasons of being determined in a summary fashion. The hearing of the motion I believe to a very large extent sought to replace a procedure roll hearing. Much of the legal argument before me was of a type and nature clearly more suited to a procedure roll than the hearing of a summary decree motion.

“I consider that there are clearly issues to try in this case. To take but one example: whether Detective Chief Inspector R was acting in good faith and genuinely made errors in reporting are issues which require to be investigated at a proof and are not matters on which I as a judge hearing a summary decree motion could properly make a finding.”

He concluded: “I hold that the defender is not bound to fail at proof in his defence regarding malice. Beyond that for the reasons I have set out I do not believe that the defender is bound to fail in his defence on the question of probable cause.

“Lastly, as regards to the issue of causation, I believe that one cannot hold at this stage that the defender is bound to fail in his defence in respect of that issue. Overall, I am of the view that I cannot conclude that the defender’s defence is bound to fail. I consider that there are issues to try in respect of material issues as above set out.”