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Ministers entitled to resist McKie claim: judge

30 March 2006

Scottish Ministers were entitled to resist Shirley McKie's claim for damages for malicious prosecution, a judge ruled today.

Lord Hodge in the Court of Session gave this ruling in refusing Ms McKie's claim for expenses on the enhanced solicitor and client basis, in the action that settled for £750,000 on the day proof was due to begin. Ms McKie, a former police officer, brought the action after being wrongly accused of perjury when a fingerprint found at a murder scene was misidentified as hers.

Lord Hodge said that where one of the parties had conducted litigation incompetently or unreasonably, causing the other party unnecessary expense, the court could impose, as a sanction against such conduct, an award of expenses on the solicitor and client scale. The court had to take into account all relevant circumstances, including the party's behaviour before the action commenced, the strengths or otherwise of a party's position on the merits, and the way in which a party used court procedure, for example to progress or delay the resolution of the dispute.

Conflict of experts

The judge said he was satisfied that the ministers did not act unreasonably or in any way reprehensibly in initially taking the position that it was for Ms McKie to prove that the disputed fingerprint was not hers. They were faced with a conflict of opinion evidence from fingerprint experts, including those independent of SCRO. They took the decision in mid-2005 to admit that the print was not Ms McKie's on consideration of the balance of expert evidence.

Similarly, he added, the ministers did not act unreasonably or in any way reprehensibly in maintaining to the end of the action that the SCRO officials acted in good faith. He also could not conclude without hearing evidence that SCRO officials deliberately withheld evidence or misrepresented their evidence, and Ms McKie had not demonstrated that they acted maliciously or that ministers acted unreasonably in failing to admit that they did.

Level of settlement

Lord Hodge also said he was not able to infer that the level of the settlement meant that the Scottish Ministers tacitly accepted that Ms McKie would prove that the SCRO officials were guilty of criminal conduct or of malice. In negotiations Ms McKie's solicitors had valued her claim at over £1.2 million, and he could not look behind the terms on which the ministers settled the action, which were expressly that they did not admit legal liability as they continued to assert that the relevant SCRO officials acted in good faith.

Ms McKie's solicitors, Digby Brown, were however allowed an additional fee to reflect the difficulty and complexity of the action and their efforts to negotiate a settlement.

Lord Hodge's opinion can be read at http://www.scotcourts.gov.uk/opinions/2006CSOH54.html .