Employers of Rangers administrators allowed access to case material for separate action against Lord Advocate

Lord Tyre

About this case:

• Citation:
  [2022] CSOH 16
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Tyre

Duff and Phelps Ltd raised the minute in the malicious prosecution action by its employee David Whitehouse against the Chief Constable of Police Scotland and the Lord Advocate, which had previously been settled. The documents sought included witness statements, affidavits, and inventories of productions lodged by the defenders, which were already in the hands of the minuter’s representatives.

The minute was heard by Lord Tyre. The Dean of Faculty, Dunlop QC, and McKinlay, advocate, appeared for the minuter, with Moynihan QC and Hamilton, advocate, appearing for the Lord Advocate.

Wrongful from the outset

Following the admission of the Lord Advocate of malicious prosecution in the cases of Mr Whitehouse and another employee of the minuter, Paul Clark, it raised proceedings for damages against the Lord Advocate on the grounds of misfeasance in public office or abuse of power in the exercise of a public office or function. The Lord Advocate lodged defences denying that the prosecutions were at all times conducted maliciously.

The minuter had instructed the same legal representatives as Mr Whitehouse, and the documents it sought authorisation for were already in their possession. It was submitted that the same considerations applied to the minuter’s application as had applied to Mr Whitehouse’s, and the reality was that no additional persons would see the documents if authorisation was granted.

Counsel for the minuter further argued that insofar as the Lord Advocate relied upon preservation of the integrity of criminal proceedings, there was a reduced public interest in preserving the “integrity” of proceedings that were admittedly wrongful, at least in part. The minuter claimed that the prosecution was wrongful from the outset, and would have to aver and prove why, and in whose mind the admitted malice rested.

On behalf of the Lord Advocate it was submitted that it would be contrary to principle to grant an order permitting blanket use by the minuter of documents lodged for the purposes of the pursuer’s action. No cogent and persuasive reason had been advanced to use all of the documents, with the proper course of action being for the minuter to produce a list of documents it wished to use with an explanation of why.

Long, tortuous and expensive

In his decision, Lord Tyre began by noting: “The circumstances are unusual: permission is being sought to use documents in proceedings in the same court, arising out of the same facts and based on a broadly similar legal foundation as the proceedings in which the documents were lodged, in which the respective parties are closely connected, in which the same legal representatives – both solicitors and counsel – are instructed, and where the documents are already in the possession of those legal representatives.”

He continued: “It is, in effect, the minuter’s intention to use the documents for the purposes for which they were lodged in the pursuer’s case, albeit that they were not ultimately required for a proof in that case because it was resolved by settlement.”

Addressing the Lord Advocate’s argument that the documents needed to be examined selectively, he said: “In my view there is no underlying principle beyond application of the interests of justice. The process of recovery of documents in the pursuer’s action was long, tortuous and expensive. In my judgment there is a strong likelihood that if the present application were dealt with by a staged approach, the result would be a repetition of that process, with disputes developing as to whether the minuter’s explanation for requiring each particular document was or was not accepted by the Lord Advocate”

He continued: “At a practical level, it seems to me that granting the authorisation sought is likely to have benefits if a proof is required in the minuter’s action. If all parties are aware from an early stage of the full extent of available documentation, I would express the hope that this would facilitate a coherent, co-ordinated and (I wish to emphasise) selective approach to the lodging of documentary productions, with proper identification of a core bundle of documents and avoidance of multiple duplication.”

Addressing a qualification to be placed on the granting of the motion, Lord Tyre concluded: “In [Mr Whitehouse’s case], I received an assurance that authorisation was not sought in relation to documents (including certain expert reports) disclosed by the Crown for the purposes of the criminal proceedings against the pursuer which had not been recovered in the civil proceedings by application for commission and diligence. Authorisation of the provision of documents to the minuter will require to be subject to an equivalent exclusion.”

Lord Tyre therefore granted the minuter’s motion, subject to agreement on the restriction.