Malicious prosecution – where are we now?

The impact of Willers -v- Joyce on the tort of malicious prosecution

In the landmark decision of Willers -v- Joyce and another [2016] W.L.R. 477, the Supreme Court has signalled a move towards a revival of the tort of malicious prosecution in English law. 

The decision opens up a potential cause of action for those who have suffered as a result of the launch of unsuccessful civil proceedings against them with malice and without reasonable or probable cause. The courts have already heard a number of cases on the back of Willers -v- Joyce in an attempt to identify the parameters of the tort of malicious prosecution in respect of civil claims. We look at the key features of the tort and subsequent developments.

Background

Prior to Willers -v- Joyce, there had been great uncertainty surrounding the existence of a tort of malicious prosecution under English law. 

The House of Lords stated in Gregory -v- Portsmouth City Council [2000] 2 W.L.R. 306 that the tort was confined to criminal proceedings. The Privy Council then muddied the waters in Crawford Adjusters (Cayman) Ltd -v- Sagicor General Insurance (Cayman) Ltd [2013] 3 W.L.R. 927, ruling that the tort should be available for civil proceedings as a matter of principle and policy.

The question therefore arose in Willers -v- Joyce as to whether the courts were bound to follow the Gregory judgment despite the subsequent Privy Council ruling. 

A new tort: Willers -v- Joyce 

Mr Willers was a former director of a company allegedly controlled by the defendant, Mr Gubay. When the company pursued a claim against him for alleged breach of contractual and fiduciary duties, Mr Willers alleged that this claim was part of a campaign by Mr Gubay to do him harm. The claim was eventually discontinued and Mr Willers recovered £1.7 million in legal costs. Mr Willers brought a claim against Mr Gubay for the difference between the costs awarded and the costs incurred (in excess of £3.9 million). The High Court struck out the claim on the basis that no tort of malicious prosecution was recognised under English law. Mr Willers appealed to the Supreme Court.

The Supreme Court did not outline the details of the claim, simply noting that they include ‘all the necessary ingredients for a claim of malicious prosecution’. The matter to consider was, therefore, whether Mr Willers could in fact bring a claim for malicious prosecution in relation to civil proceedings.

The Supreme Court upheld the appeal, meaning the claim should be permitted to proceed to trial. Faced with arguments that the tort would deter claimants from bringing valid civil claims or that it may bring about satellite litigation, Lord Toulson nevertheless explained that these considerations did not outweigh the argument that it seemed ‘instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not to be entitled to compensation for the injury intentionally caused by the person responsible for instigating it’. 

The test for malicious prosecution

The Supreme Court held that a claimant bringing a malicious prosecution claim needs to establish two things, that: 

1. Proceedings were brought against it without reasonable and probable cause

2. the party bringing proceedings did so maliciously

Lord Toulson noted that the element of malice ‘requires the claimant to prove that the defendant deliberately misused the process of the court’: this involves establishing that the proceedings ‘were not a bona fide use of the court’s process’.

Subsequent developments

A far cry from the ‘floodgates’ arguments brought before the Supreme Court in Willers -v- Joyce, subsequent malicious prosecution claims have in fact been few and far between. 

Recent case law has centred on the definition of ‘proceedings’ in the Willers -v- Joyce test. In CFC 26 Ltd -v- Brown Shipley & Co Ltd and Others [2016] EWHC 3048 (Ch), the High Court held that an enforcement notice served by a local authority would not be sufficient for the purposes of the tort: the ‘proceedings’ must have been ‘set in motion by an appeal to some person clothed with judicial authority’.

In Barkhuysen -v- Hamilton [2016] 2 W.L.R. 9, the High Court also held that a mere arrest of an individual would not be classed as ‘proceedings’. The rationale provided was that compensation should be available for injury caused by a malicious abuse of the state’s judicial power.

Comment

The revival of the tort of malicious prosecution opens up the possibility of a just outcome for individuals who are accused of serious wrongdoing and forced to engage in expensive and lengthy litigation. However, potential claimants will need to carefully consider the financial position of their opponent and whether the damages sought would be proportionate to the cost of proceedings. If the financial benefits are in doubt, a civil restraint order could be a more appropriate route. At this early stage, the most beneficial application of the tort may well be as a deterrent: referring to the Willers case in early correspondence on malicious claims may encourage claimants to abandon the claim.

The current position following Willers -v- Joyce leaves a number of questions unanswered. How will the courts determine what losses are recoverable? Does the tort extend to malicious applications within existing civil proceedings?

Malicious prosecution as a legal principle is still in its early stages of development, and as such the full application of the tort is likely to be the subject of a significant amount of case law over the coming years. We await such clarity and judicial comment with interest.