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Malicious Prosecutions

3244332524 cd99603589 qJonathan Fisher QC discusses the implications of the recent Supreme Court decision in Willers v Joyce [2016] UKSC 43 involving the application of malicious prosecution to the pursuit of civil proceedings. Having determined that the tort can apply to civil proceedings, the decision provides a timely reminder for prosecutors of their potential liability in both criminal and civil proceedings. Private prosecutors are similarly exposed.

SPEED READ

Jonathan Fisher QC discusses the implications of the recent Supreme Court decision in Willers v Joyce [2016] UKSC 43 involving the application of malicious prosecution to the pursuit of civil proceedings. Having determined that the tort can apply to civil proceedings, the decision provides a timely reminder for prosecutors of their potential liability in both criminal and civil proceedings. Private prosecutors are similarly exposed. With the rapid growth in private prosecutions and the proposed privatisation of the enforcement of confiscation proceedings, private prosecutors may wish to consider this potential liability as an additional risk factor when undertaking work of this nature.

COMMENTARY

Willers v Joyce [2016] UKSC 43 raises the question whether the tort of malicious prosecution applies to the pursuit of civil proceedings. The claimant was a former director of a company who alleged that the defendant had caused the company to pursue a civil claim against him. Following the decision of the House of Lords in Gregory v Portsmouth City Council [2000] 1 AC 419, the trial Judge held that the tort of malicious prosecution applied only to the pursuit of criminal proceedings. The trial Judge declined to follow the conflicting Privy Council decision in Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another [2013] UKPC 17 which had held to the contrary. In a 5-4 majority decision, the Supreme Court preferred the approach of the Privy Council and held that the tort of malicious prosecution applied to the pursuit of civil claims as well as criminal prosecutions. The lead judgment was given by Lord Toulson, with whom Lady Hale, Lords Kerr and Wilson agreed. Lord Clarke gave a concurring judgment. Dissenting judgments were given by Lords Neuberger, Mance, Sumption and Reed.

In Gregory v Portsmouth City Council, Lord Steyn had sought to explain the historical narrowness of liability for malicious prosecution. As he said:

“[The tort of malicious prosecution] had never been held to be available beyond the limits of criminal proceedings and a few special cases of abuse of civil legal process, such as malicious presentation of a winding up or bankruptcy petition (Johnson v Emerson (1871) LR 6 Ex 329; Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674), malicious obtaining of a search warrant (Gibbs v Rea [1998] AC 786) or bench warrant (Roy v Prior [1971] AC 470), or malicious process to obtain execution against property (Clissold v Cratchley [1910] 2 KB 244)” (at pages 427-428).

This approach was heavily rejected by the Privy Council in Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another [2013] UKPC 17. The Privy Council said it was important that for every injustice there should be a remedy at law to prevent litigants from commencing legal action without any merit.

In this context, it is important to remember that the requirement to establish malice does not mean that the claimant has to show that the defendant bore some ill-will or grudge against him. Lord Toulson began by explaining in Willers v Joyce that:

“Maliciously causing a person to be prosecuted on the basis of an allegation known by the complainant to be false is far from being a thing of the past, and in recent times it has led in some cases to the conviction of the complainant for the offence of perverting or attempting to pervert the course of justice” (at paragraph 43).

However, the potential scope for liability for malicious prosecution was much wider. Lord Toulson supported his analysis with a citation from Bromage v Prosser (1825) 4 B & C 247 where Mr Justice Bayley had said that:

“Malice, in common acceptation, means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse” (paragraph 55).

This being so, the Supreme Court’s decision might spawn a growth in satellite proceedings and the possibility of never-ending legal proceedings. Practitioners who have acted for bitterly aggrieved clients will be familiar with the situation where a successful defendant in a civil claim (maliciously) wishes to commence an action for malicious prosecution in order to wreak revenge on the losing claimant. The door is wide open and the prospects for continuous litigation could be endless!

The dissenting minority were concerned about this possibility. As Lord Sumption put it:

“The reluctance of the courts to accept rules of law justifying secondary or satellite litigation is born of long-standing judicial experience of the incidents of litigation and the ways of litigants. That experience is as relevant today as it has ever been. The volume of litigation has increased exponentially in the last 70 years. Its tendency to generate persistence, obsession and rancour is as great as ever. The hazards of losing, already considerable in terms of costs, must inevitably be greater if one adds the threat of secondary litigation for prosecuting the earlier action in the first place. Doubtless the great majority of secondary actions will fail, but that makes it even less satisfactory to enlarge the opportunities for bringing them” (at paragraph 179).

Whilst the focus of attention in Willers v Joyce attaches to civil claims, the decision also reminds State prosecutors of the potential consequences which can flow from a failed criminal prosecution where the evidential case against the accused was weak. Private prosecutors are equally vulnerable and there are potential implications when obtaining search warrants and restraint and confiscation orders under the Proceeds of Crime Act 2002.

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The views expressed in this article represent those of the author and not Bright Line Law.

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