Key takeaways
Malicious claims can trigger legal redress
Victims may seek damages for bad faith litigation.
Applicable law hinges on location of harm
Jurisdiction depends on where proceedings were filed.
Courts reject forum-shopping for damages
Claims must align with recognised local tort law.
In Commercial Bank of Dubai PSC and others -v- Al Sari and others [2025] EWHC 400 (Comm), the High Court considered claims that certain defendants had maliciously prosecuted two sets of proceedings in the Dubai International Financial Centre (DIFC) in the United Arab Emirates. The key question for the court was applicable law.
What is “malicious prosecution of civil proceedings”?
Malicious prosecution of civil proceedings is a type of tort (a civil wrong) allowing victims of malicious claims to seek redress. It was established by the Supreme Court in 2016 in the case of Willers -v- Joyce [2016] UKSC 43 and 44. The key elements are:
the claimant has suffered damage as a result of a civil claim;
the civil claim was brought maliciously and without reasonable cause; and
the civil claim was not a bona fide use of the court process.
In the Commercial Bank of Dubai case, the claimants claimed damages for losses (including legal fees and losses resulting from the delayed sale or use of property in England) said to have been suffered as a result of the civil proceedings issued in DIFC.
Applicable law
The High Court was tasked with determining the law applicable to the claim; English law or the laws of the DIFC.
The Rome II Regulation governs the law applicable to non-contractual obligations in most civil and commercial matters where the event giving rise to the damage occurred before the end of the UK-EU transition period. Article 4(1) of the Rome II Regulation provides that:
"the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”
The issue was what constitutes damage for the purposes of Article 4(1).
The claimants argued that damage was suffered in the place of the bank account from which the legal fees were paid (or, alternatively, in the place where the claimants signed the contract of retainer under which the fees would become payable or in the place where the work was done) and the place where the properties were located. On that basis, they asserted that the claims for malicious prosecution of civil proceedings were governed by UAE law or, alternatively, UAE law and English law.
The Judge was not persuaded that the place(s) where the adverse financial consequences manifested themselves were material. The tort of malicious prosecution addresses the specific interest of not being harassed by bad faith litigation before the sovereign court of a particular state. The act of commencement of proceedings is itself a sufficient actionable interference and legal costs incurred in dealing with the claim are, in fact, a form of mitigation. The Judge held that damage occurred at the place where the proceedings were instituted and, therefore, the applicable law was that of DIFC. Given that a tort of malicious prosecution of civil proceedings was not recognised under DIFC law, the claims were not arguable. There were various reasons why the Judge considered that conclusion to be sensible, including the avoidance of potential claims across multiple jurisdictions depending on, for example, where lawyers were instructed, which bank accounts were used to pay legal fees, where contracts were executed.
