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Malicious prosecution - a civil remedy

Malicious prosecution - a civil remedy

A groundbreaking decision of the Supreme Court in Willers v Joyce [2016] UKSC 43 shows how the courts have adapted and extended a remedy to do justice in situations in which a person has suffered injury in consequence of the malicious use of legal process. It extends the remedy of malicious prosecution to the malicious prosecution of a civil claim.

A groundbreaking decision of the Supreme Court in Willers v Joyce [2016] UKSC 43  shows how the courts have adapted and extended a remedy to do justice in situations in which a person has suffered injury in consequence of the malicious use of legal process. It extends the remedy of malicious prosecution to the malicious prosecution of a civil claim.

Until 2016 the tort of malicious prosecution was not available in relation to the prosecution of civil proceedings.

This meant that a defendant who had been the victim of a civil claim that was brought maliciously in bad faith and for an improper motive and who had sustained loss and damage as a result was without a remedy.

The case law prior to Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD674 (1882) WN 27 did not distinguish between civil and criminal proceedings but limited the types of damage recoverable in a way which had the practical effect of restricting the claims that could be brought as a result of malicious civil process.

The judgment of the court in Quartz Hill was that the bringing of a civil claim could not give rise to an action for malicious prosecution even if brought maliciously and without reasonable and probable cause.

In Gregory v Portsmouth City Council [2000] 1AC 49 the House of Lords upheld the decision of the court below striking out a claim for malicious prosecution of disciplinary proceedings brought by the local authority.

In Crawford Adjusters (Cayman) Limited v Sagicor General Insurance (Cayman) Limited [2014] AC 366 the Privy Council held that the court below was wrong to dismiss the claim for malicious prosecution.

Faced with these conflicting authorities, the Supreme Court in Willers held that the tort of malicious prosecution included the prosecution of civil claims in circumstances where the claimant had no reasonable and probable cause, and had no bona fide reason to bring proceedings. They had thus acted maliciously, resulting in the other party sustaining loss and damage. The leading judgment of the Supreme Court, delivered by Lord Toulon, considered the countervailing arguments to the applicability of malicious prosecution to civil proceedings but dismissed them, deciding that “all things considered I do not regard the suggested countervailing considerations as sufficient to outweigh the argument that simple justice dictates that Mr Willers’ claim for malicious prosecution should be sustainable in English law“.

It will be interesting to observe the application of this new remedy and whether or not advantage is taken of it by those suffering the malice of claimants with an improper agenda. Indeed I am acting in a case where a claim by an institution has been brought against my client who is invoking the remedy.

I agree with the court’s extension of the remedy to civil proceedings as a perfect example of the court’s willingness to adapt and extend the law in circumstances where justice dictates that the court should so proceed. I would be pleased to discuss any matters arising from this blog.

This publication is for general information only and is not intended to provide legal advice.