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, with Mr Clark, of Surrey, suing for £5 million.
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The pair are seeking compensation for alleged wrongful detention, arrest and prosecution after they were detained at their homes in dawn raids in 2014 on suspicion of being involved in a "fraudulent scheme and attempt to pervert the course of justice"
Mr Whitehouse and Mr Clark, of Duff & Phelps, were appointed as joint administrators and informed Strathclyde police that the acquisition of Rangers by Craig Whyte through a firm, Wavetower, may have involved illegal financial assistance.
They maintain that at no point was there any justification for their detention or prosecution and claim the Lord Advocate never had sufficient evidence for any of the charges brought against them.
Following a procedural hearing last year judge Lord Malcolm ruled 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."
"Where there is proof of malice and lack of probable cause in relation to the general acts of a public official, including the Lord Advocate and those for whom he is responsible, the matter is actionable."
Lord Carloway said: "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 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.
Lady Dorrian said: "I accept that it is in the interests of justice that prosecutors should be protected against the consequences of mistake, negligence, error of judgement and similar matters."
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"However this does not require an immunity from suit which protects the prosecutor who acts maliciously and without probable cause," she said.
Lady Dorrian said: "I do not consider that immunity from suit for malicious prosecution is necessary for the discharge of the Lord Advocate's duties."
The remaining three judges, Lady Paton, Lord Menzies and Lord Brodie agreed.
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