MALICIOUS PROSECUTION OF CIVIL PROCEEDING
Paul Mitchell QC
Conspiracy
“Conspirators be they that do confeder or bind themselves by oath, covenant or other alliance, that every of them shall aid and bear the other falsly and maliciously to indite or falsly to move or maintain pleas; and also such as cause children within age to appeal men of felony, whereby they are imprisoned and sore grieved; and such as retain men in the country with liveries or fees for to maintain their malicious enterprises…”. Ordinacio de Conspiratoribus, 33 Edward I (1305).
Malicious Prosecution
First recognised as a cause of action in Savile v Roberts (1698), Holt CJ
-Prosecutor
-Indicts victim, who is not convicted
-Without reasonable cause
-To satisfy not justice “but to gratify [his] peevish revenge or malice”
-And causes damage to health, wealth or reputation
In the civil context...
No successful claims for merely bringing failed civil proceedings between 1698 and 2013
Gregory v Portsmouth Council [2000] 1 AC 419, HL
Crawford Adjusters (Cayman) Ltd v. Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17; [2014] AC 366
Sagicor
Majority: Hale, Kerr, Wilson JJSC
Minority: Neuberger PSC, Sumption JSC
PC decision so not binding on English courts
Majority do not follow Gregory
Willers v Joyce & Nugent
Two judgments: [2016] UKSC 43 & 44
The second concerns the rules of precedent - unanimous
On malicious prosecution, split 5:4
-Majority: Toulson, Hale, Kerr, Wilson, Clarke JJSC
-Minority: Neuberger PSC, Mance, Sumption, Reed JJSC
Elements of the cause of action
The defendant, acting as the prosecutor…
Maliciously…
And without reasonable and probable cause…
Sued the claimant and did not succeed…
With the result that the claimant suffered loss
Who is the prosecutor?
In criminal context, the person who “set the law in motion”
Martin v Watson [1996] AC 74, HL
AH v AB [2009] EWCA Civ 1092
Mahon v Rahm [2000] 1 WLR 2150, CA
Who sets the law in motion in civil case?
The claimant – but what if not a natural person?
A key witness (as in Martin v Watson)?
Malice
“Deliberate misuse of the Court’s process”: Toulson JSC at [55]
(Probably) claim is baseless and prosecutor has actual knowledge of that: Toulson JSC at [53]
But note that a claim that started well can be revealed as baseless and continuing it could be malicious: Mance JSC at [132]
Malice usually requires intentionally doing something wrongful: O v Rhodes [2016] AC 219 at [37] to [41],
Note however notion of “dominant motive”, Mance JSC in Willers at [139]: even if prosecutor mistakenly believes claim is well founded, if the dominant purpose is to injure that could make a prosecution malicious
Probable cause and privilege
If successful defendant suspects predominantly malicious motive and pleads a prima facie case
How does the alleged prosecutor defend the allegations?
To prove reasonable and probable cause, prosecutor has to waive privilege.
What if the alleged prosecutor was a witness not a party?
Termination of malicious action
No need to prove innocence: Beckett v New South Wales [2013] HCA 17
Just that claim has terminated in such manner as not to prevent the new allegations being made
That includes termination by way of settlement: Mance JSC in Willers at [129]
Recoverable loss
Three heads of loss in Savile v Roberts:
-Name: damage to reputation
-Health: damage caused by deprivation of liberty
-Wealth: costs and expenses
SC suggests in Willers that economic loss generally is recoverable
Economic loss (1)
Claim for “extra costs” of defending the malicious prosecution?
Sinclair v Eldred (1811), Cotterell v Jones (1851), Quartz Hill Consolidated Gold Mining v Eyre (1883, CA) and Wiffen v Bailey (1915, CA): all clear that “extra costs” are not ordinarily recoverable
If extra costs are recoverable, expect many allegations of prof neg
Economic loss (2)
Impact of having to conduct litigation on the management of a business
Staff time?
Reputational damage: lost profits?
Opportunities and threats
Family proceedings
Perjured evidence
Hopeless defences
Discontinuance
Aggressive conduct of litigation generally
Professional negligence…
Complaints made to regulators by claimants in prof neg actions
Claims against lawyers by former client sued for malicious prosecution?