Malicious Prosecution – The Development of this Tort in Civil Proceedings

January 3, 2019

Malicious Prosecution – The Development of this Tort in Civil Proceedings

The Supreme Court decision in Willers v Joyce and another [2016] UKSC 43&44 began the revival of the tort of malicious prosecution in English law.

The decision opened up a potential cause of action for those who suffer as a result of unsuccessful malicious civil proceedings being brought against them without reasonable or probable cause. Since this decision the Court has sought to identify the parameters of the tort of malicious prosecution.

Malicious Prosecution before Willers v Joyce

Prior to 2016 there was great uncertainty surrounding the existence of a tort of malicious prosecution. In the case of Gregory v Portsmouth City Council [2000] 2 WLR 306 it was suggested that the tort should be confined to criminal proceedings. However, the Privy Council in hearing Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] 3 WLR 927 extended this, suggesting that, as a point of principle, the tort should be available in civil proceedings too.

The Willers v Joyce Case

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

The Supreme Court in considering the claim noted that it included ‘all the necessary ingredients for a claim of malicious prosecution’. Therefore, the decision had to be made as to whether Willers could bring a claim for malicious prosecution in relation to civil proceedings.

The Appeal was successful, which allowed Willers to bring his claim for malicious prosecution to trial.

The Test for Malicious Prosecution

In order to bring a claim for malicious prosecution a party must establish:

  1. Proceedings were brought against it without reasonable and probable cause
  2. The party bringing proceedings did so maliciously

Lord Toulson in the Supreme Court’s Judgement noted that the element of malice ‘requires the claimant to prove that the defendant deliberately misused the process of the court’. This requires a party to establish that the proceedings ‘were not a bona fide use of the court’s process’.

Further Caselaw

Since the Willers v Joyce Judgement in 2016 malicious prosecution claims have been few and far between, which has come as a relief as many thought the decision may potentially lead to the floodgates being opened.

More recent case law has focused on the definition of ‘proceedings’ in the malicious prosecution test. It has been found that a notice served by a local authority would not be sufficient as ‘proceedings’ must have been ‘set in motion by an appeal to some person clothed with judicial authority’, CFC 26 Ltd v Brown Shipley & Co Ltd [2016] EWHC 3048 (Ch).

The Future of Malicious Prosecution

While the tort does open up the possibility of a just outcome for those who are accused of serious wrongdoing and forced to engage in expensive and lengthy litigation, potential claimants will still need to take into account the practical consideration of whether the sum they are likely to recover can justify the cost of further litigation. The most beneficial use of the tort may well be at an early stage in proceedings to encourage claimants to abandon unwarranted claims.

The development of the tort remains in its infancy. There is no clear test yet as to how the Court will determine what losses are recoverable or whether it can be extended to malicious applications within civil proceedings.  As more cases make their way through the Court system, further clarification on the application of the tort is expected.


If you have any questions or queries regarding this subject, please contact Claire-Elaine directly and she will be more than happy to help.

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