A SENIOR judge told Scotland’s leading lawyer, the Lord Advocate, that an admission to the malicious prosecution of former Rangers general manager Charles Green in a failed club fraud case should have come sooner.
Lord Tire spoke out after a court heard that the public apology promised by former Lord Advocate James Wolffe QC took a year a year to materialize after their first promise.
A legal team acting on Mr Green’s behalf argued he should get higher fees, saying the Lord Advocate had unduly delayed admission of liability for malicious prosecution.
Mr Green won £ 6million from the Lord Advocate in a settlement over his claim for £ 20million plus court costs in August three years after prosecutors told him he failed there was “now no evidence of a crime”.
The 67-year-old businessman was arrested along with several other men following a police investigation into an alleged fraud linked to the sale of the current Scottish champions to businessman Craig Whyte in 2011 and a subsequent purchase of assets in liquidation.
Dubai-based Mr Green, whose Sevco consortium, bought the assets of the club’s liquidating business nine years ago for £ 5.5million, was due to receive compensation after Crown lawyers accepted that he was being prosecuted for malicious fraud.
READ MORE: Former Ranger leaders Charles Green and Imran Ahmad secure public apology for wrongful prosecution
The prosecution’s decision to drop the charges against Mr Green and others marked the end of a two-and-a-half-year case that only saw Craig Whyte stand trial and resulted in no conviction .
The Inner Chamber of the Court of Session paved the way for payments to wrongly arrested people when it ruled in 2019 that the Lord Advocate does not have immunity from malicious prosecution in cases brought by former administrators of Rangers David Whitehouse and Paul Clark of Duff and Phelps.
But Mr Green’s legal team said there had been no investigation into Mr Green’s claim for damages as Mr Whitehouse and Mr Clark fought for the right to wear. complaint.
Prosecutors later admitted that Mr Whitehouse and Mr Clark were wrongly arrested and prosecuted and then settled their action with each receiving £ 10.3million each. Their legal bills worth £ 3million each have also been paid.
Lord Tire expressed concern about the time it would take to accept responsibility in the case, but declined the increased “agent and client” costs while accepting additional charges separately.
Cost awards on an “agent and client” basis are rare and involve a certain degree of censorship as to the conduct of the litigation by the paying party.
But Lord Tire said: “It seems to me that something that can be said in this matter is that the admission of responsibility should have come sooner, and that the admission of responsibility having been made, it can be said. there be an argument that an offer should have been made more quickly.
READ MORE: Ex-Rangers executive Charles Green wins over £ 6million from Lord Advocate in malicious club fraud lawsuit
“Even if I understand that there have been a lot of inquiries [on the level of damages] to do which depended on the production and information of the prosecutor. ”
Previously, he had told Douglas Ross QC, acting for the Lord Advocate, that there should be more concern about the inability to admit responsibility soon enough after former Rangers administrator David Whitehouse , was granted the right to bring a separate action for damages for the failed fraud case, “because from my own knowledge of this it was clear that this was a lawsuit without any merit. ”
But he said he was “not convinced” that the delay in admitting liability is sufficient to justify the increased base “agent and client” costs.
Lawyer Lord Keen of Elie QC for Mr Green said that when one of the parties carried out a dispute incompetently or unreasonably and thus caused the other party unnecessary expense, the court could impose a sanction through increased costs.
“This action was not between two individuals. It involved the power of the state being exercised over an individual and exercised in a way that posed a real threat to his future freedom,” he said.
” He was stopped. He was detained. He appeared on petition in 2015.
“The circumstances of the arrest have become a subject of notoriety, they have certainly fallen into the public domain.
“There was no evidence against Mr. Green.”
A letter was sent on behalf of the Lord Advocate on August 12, 2020 with a suggestion to negotiate a settlement but without admission of liability and a commitment to issue a public apology.
“One of the main purposes of Mr Green’s action was to defend his reputation which had been shattered by what had happened from 2015 onwards, and no admission of liability was going to resurrect its reputation, “said Lord Keen. .
A month later, the Lord Advocate officially acknowledged his responsibility, but the public apology did not materialize for a year.
On July 30, Mr Green was offered a “non-negotiable” offer to settle £ 4.8million. Ten days later, on August 9, a new offer materialized – for £ 1.5million more than the non-negotiable sum. Mr. Green decided to accept.
“I would say that in view of the way this case has emerged and been conducted, there are perfectly valid and even compelling reasons to award costs so that Mr. Green is exempt from liability for the costs incurred here, ”said Lord Enthusiastic.
“We had a two and a half year period where there had been no response on accountability,” he said.
“We have the Lord Advocate taking the position that, pending Whitehouse’s decision, he did not need to investigate the merits of the claim.
“And we have a settlement at the gate of the court.”
He added: “Given that there was never any evidence against Mr. Green, it is difficult to understand why it was necessary to wait until August 10 to try to reach a settlement of this claim. ”
Mr Ross said Mr Green had “rightly received substantial damages and compensation” for malicious prosecution.
But he insisted that the time taken to defend the action was “neither unreasonable nor reprehensible”.
“It eventually became clear that there was no suitable basis for the prosecution of Mr. Green,” he said. “But to get to this point, a very important job had to be done.
“Following the admission of liability, the people acting on behalf of the Lord Advocate made considerable efforts to try to resolve the matter.
“I respectfully submit that there was no conduct on the part of the Lord Advocate in the defense of the action which unduly delayed the proceedings, or might otherwise have been unreasonable or objectionable and, therefore, no justification for the allocation of costs to an “agent and customer base.” ”