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The tort of malicious prosecution of civil proceedings: a critique and a proposal
Published online by Cambridge University Press: 21 February 2022
Abstract
Litigation is a tactical business. The recognition of the tort of malicious prosecution of civil proceedings in Willers v Joyce in 2016, by the barest of majorities, adds to the tactical intrigue, for it is now feasible that failed civil proceedings could be swiftly followed by a counter-suit for malicious prosecution against the original unsuccessful claimant. The tort requires proof of ‘malice’. As a concept, malice may have a 400-year history, but insofar as the new tort is concerned, it has proven to be opaque. In this paper, a critical evaluation of the tort since the Supreme Court gave it the ‘green light’ in Willers is undertaken. As a cause of action, it has been sparsely used, and beset with difficulties and unforeseen consequences. Whilst tort law, as the rubric of civil wrongs, must remain ‘on the move’, it is important that judicial reform achieves desirable and useful outcomes. It is argued in the paper that the tort recognised by Willers has not met that objective to date. However, a detailed law reform study of this and other related torts, leading to a statutory tort of ‘abuse of litigious processes’, would serve to bring order to the present disarray.
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- Research Article
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- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of The Society of Legal Scholars
Footnotes
†
The author is grateful for the helpful comments received from members of the audience when this topic was presented to the Society of Legal Scholars on 1 September 2021, and for the constructive comments about the resulting manuscript which were provided by two referees. The usual caveat applies.
References
1 [2016] UKSC 43, [2018] AC 779, on appeal from [2015] EWHC 1315 (Ch).
2 It was the only 2016 case to feature a bench of nine Justices, and the first since R (Nicklinson) v MOJ [2014] UKSC 38 (assisted suicide), signifying its importance: Dickson, B ‘Inside court’ (2017) 167 NLJ 7736Google Scholar. One criterion for determining whether more than five Justices should sit on a panel is where a conflict between decisions in the Privy Council and the House of Lords has to be reconciled, as in this case: https://www.supremecourt.uk/procedures/panel-numbers-criteria.html.
3 As noted by Lord Toulson in Willers [2016] UKSC 43, [52] (the Willers Strike-Out Action).
4 Giles v Jeffrey [2019] VSC 562, [155], [111] (quote).
5 Perera v Genworth Financial Mortgage Ins Ltd [2019] NSWCA 10, [15].
6 Burgess v Beaven [2020] NZHC 497, [20].
7 Smyth v SAS Sogimalp Tarentaise [2019] IEHC 568, [58] (any uncertainty ‘resolved in this jurisdiction’ in favour of the tort); and Dublin Waterworld Ltd v National Sports Campus Devp Authy [2019] IECA 214, [134].
8 Lee Tat Development Pte Ltd v Management Corp Strata Title Plan No 301 [2018] SGCA 50, [70].
9 See n 3 above.
10 [2016] EWHC 3048 (Ch).
11 [2017] 12 WLUK 144 (Brighton CC).
12 [2017] UKPC 3 (Juman).
13 [2018] EWHC 3424 (Ch).
14 [2019] EWHC 2183 (Ch).
15 [2020] EWHC 3545 (QB).
16 [2021] EW Misc 21 (Barnsley CC).
17 [2013] UKPC 13, [2014] AC 366, on appeal from the Cayman Islands Court of Appeal.
18 Donoghue v Stevenson [1932] AC 562 (HL). The settlement sequel to the famous claim brought by Mrs Donoghue has been described thus by The Honourable Justice James Edelman in ‘Fundamental errors in Donoghue v Stevenson?’ (a Speech to the Friends of University of Western Australia, London, July 2014) (‘[a]fter the decision of the House of Lords, the case was set down for a Proof (of the facts). The Proof was to be held on 10 January 1933. But Mr Stevenson died before the Proof. A motion was brought to discharge the Proof by reason of Mr Stevenson's death. The Proof was discharged. The matter did not come back before the Court of Session until 6 December 1934. On that date, it was only to approve a settlement. His estate had allegedly settled the claim for £100’ (footnotes omitted)).
19 [2018] EWHC 3424 (Ch) (Rose J) (the Willers Trial Action).
20 Per Catholic Child Welfare Society v Institute of the Bros of Christian Schools [2012] UKSC 56, [19].
21 See Willers Trial Action [2018] EWHC 3424 (Ch), [1]–[13]; Willers v Joyce [2017] EWHC 1225 (Ch), [10]–[21].
22 Ibid, [4], [118], [172].
23 Described at ibid, [8]; and in Willers v Joyce [2017] EWHC 1225 (Ch).
24 Per Newey J, 16 April 2013.
25 Described in Willers Strike-Out Action [2016] UKSC 43, [5].
26 [2018] EWHC 3424 (Ch), [10].
27 The claim is brought against ‘Elena Joyce, John Nugent (in substitution for and in their capacity as executors of Albert Gubay, deceased)’, hence the stylisation of the case as ‘Willers v Joyce’.
28 [2000] 1 AC 419 (HL) (Gregory) (Councillor Gregory's action against the Council for TOMP, after the Council's disciplinary action against him was quashed by judicial order, struck out).
29 Willers v Gubay [2015] EWHC 1315 (Ch), [96] (Miss Amanda Tipples QC, whose judgment was called ‘meticulous’ by the Supreme Court: [2016] UKSC 43, [92]).
30 Permitted under the Administration of Justice Act 1969, s 12.
31 A related judgment, at [2016] UKSC 44, deals with the precedential order when the Privy Council reaches a different conclusion from the House of Lords/Supreme Court, which topic falls outside the scope of this paper.
32 Lord Toulson wrote the leading judgment, with whom Lady Hale and Lords Kerr and Wilson agreed (at [1]); and Lord Clarke wrote a separate concurring judgment (at [60]).
33 Lord Mance wrote the leading dissenting judgment (at [92]), whilst Lord Neuberger P (at [147]), Lord Sumption (at [174]), and Lord (now President) Reed (at [182]) wrote short concurring judgments.
34 Gregory [2001] 1 AC 419 (HL), at 426; S v Kensington and Chelsea RB (QB, 28 November 2018), [16].
35 [2016] UKSC 43, [5].
36 Szekely v Park View Health Partnership [2017] 12 WLUK 144 (Brighton CC) (Szekely).
37 Noted ibid (special professional indemnity insurance was required by TAD; but the tort ultimately failed).
38 Quartz Hill Consolidated Mining Co v Eyre (1883) 11 QBD 674 (CA); Savile v Roberts (1698) 1 Ld Ravm 374; Grainger v Hill (1838) 4 Bing NC 212.
39 Johnson v Emerson (1871) LR 6 Exch 329.
40 Gibbs v Rea [1998] AC 786 (HL).
41 Roy v Prior [1971] AC 470 (HL).
42 Clissold v Cratchley [1910] 2 KB 244.
43 [2016] UKSC 43, [150].
44 Ibid, [16] (Lord Toulson) and [98] (Lord Mance, citing Sagicor [2013] UKPC 17, [49]).
45 Several other examples exist, as noted in R Mulheron Principles of Tort Law (Cambridge: Cambridge University Press, 2nd edn, 2020) p 24.
46 [2018] EWHC 3424 (Ch).
47 The TOMP action was tried without the benefit of any oral evidence from Mr Gubay, given his death in 2016.
48 [2016] UKSC 43, [93].
49 [2018] EWHC 3424 (Ch), [187].
50 Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151 (HL) (establishing an exception to but-for causation), and applied since in, eg, Gouldsmith v Mid-Staffordshire NHS Trust [2007] EWCA Civ 397; Wright v Cambridge Medical Group [2011] EWCA Civ 669.
51 Morgan Grenfell & Co Ltd v Special Commissioner [2001] EWCA Civ 329, [18].
52 Three Rivers DC v Bank of England (No 6) [2004] UKHL 48, [24] (Lord Scott).
53 The Abbeyfield (Maidenhead) Socy v Hart [2021] UKEAT 162, [46].
54 Reiterated recently in Victorygame Ltd v Ahuja Investments Ltd [2021] EWCA Civ 993, [52]–[62]. Exceptionally, a court may order disclosure of communications with non-parties that are privileged, in childcare or wardship proceedings concerning the welfare of children: A Zuckerman Zuckerman on Civil Procedure (Thomson Sweet & Maxwell, 2nd edn, 2006) [15.110].
55 Eg Magnesium Elektron Ltd v Neo Chemicals & Oxides (Europe) Ltd [2017] EWHC 2957 (Pat), [38]–[42]; and General Mediterranean Holdings SA v Patel [2000] WLR 272 (Comm) 280–91.
56 Bowman v Fels [2005] EWCA Civ 226, [78], citing Derby Magistrates’ Court, ex p B [1996] 1 AC 487 (HL), 503.
57 [2018] EWHC 3424 (Ch), [44].
58 [2016] UKSC 43, [165]. The privilege belongs solely to the client, so is his to waive: Victorygame, above n 54, at [54].
59 [2018] EWHC 3424 (Ch), [44], [147]. Strictly speaking, Langstone was not a party to the later Malicious Prosecution Action either, and hence there was no automatic right to disclosure from that company.
60 Ibid, [201].
61 As evident from the exchange between counsel and witness at ibid, [207].
62 Ibid, [301].
63 Ibid, [47]–[49], quote at [49] (emphasis added).
64 [2016] UKSC 43, [172].
65 The interplay between (1) the absolute privilege which all participants in the Original Action enjoy from any suit in defamation, for words written or spoken in the ordinary course of those proceedings, and (2) the TOMP where TAD is seeking to sue TAMC by relying upon precisely those same statements for the purposes of the Malicious Prosecution Action, is also an unresolved issue, mentioned in Willers: [2016] UKSC 43, [184] (Lord Reed, dissenting), but has not yet been the subject of later judicial consideration.
66 Willers Strike-out Action [2016] UKSC 43, [164].
67 Ibid, [184].
68 Sagicor [2013] UKPC 17, [144]. For an illuminating essay on the hallmarks of Lord Sumption's judgments, with particular reference to his dissenting judgments in Sagicor and the Willers Strike-Out Action, see J Lee ‘The judicial individuality of Lord Sumption’ (2017) 40 University of New South Wales Law Journal 862 (his ‘judicial style and philosophy [encompassed]: an insistence on historical accuracy, a reaffirmation of previous views, and concern over the appropriateness of judicial innovation’) (accessed via Austlii, no pp available).
69 Willers Strike-Out Action [2016] UKSC 43, [46], [58].
70 Ibid, [145] (Lord Mance) (opining, eg, that to allow this head of damage was contrary to a long line of authority in which costs could not constitute damages).
71 Ibid, [58] (Lord Toulson).
72 Ibid, [46], [58]. Cf where the judge in the earlier action had considered, and rejected, the award of costs on an indemnity basis: Magdeev v Tsvetkov [2019] EWHC 1557 (Comm) [113], [117] (Picken J), citing ENE Kos 1 Ltd v Petroleo Brasileiro SA (No 2) [2010] 1 All ER (Comm) [65]. Top-up costs would not be allowed then.
73 The interim costs award against Mr Willers was £1M: Willers v Joyce [2019] EWHC 2183 (Ch), [4].
74 Aiden Shipping v Interbulk [1986] AC 965 (HL); and Dymocks Franchise Systems (NSW) Pt Ltd v Todd [2004] UKPC 39, cited ibid, [33].
75 Senior Courts Act 1981, s 51(1) and (3).
76 [2019] EWHC 2183 (Ch), [56].
77 Ibid, [57]–[58].
78 Ibid, [59].
79 Ibid, [61].
80 See text accompanying n 35 above.
81 [2016] UKSC 43, [5].
82 [2017] 12 WLUK 144.
83 Noted in Willers v Joyce [2017] EWHC 1225 (Ch), [21].
84 [2016] UKSC 43, [100].
85 [2018] EWHC 3424, [189], [198], [200], [327], and citing Martin v Watson [1996] 2 AC 74 (HL), 86.
86 [2017] 12 WLUK 144, points 2 and 3 of the court's conclusions, respectively.
87 [2018] EWHC 3424, [192] (emphasis added).
88 Ibid, [192].
89 Ibid, quotes at [194] and [200], respectively.
90 [2016] UKSC 43, [5].
91 Ibid, [28] and [64] respectively, citing: Churchill v Siggers (1854) 3 E&B 929.
92 [2020] EWHC 3545 (QB), [65].
93 [2016] EWHC 3048 (Ch), [66]–[67].
94 [2020] EWHC 3545 (QB), [56]. See further E Weinert et al ‘Does sending evidence to the CPS amount to malicious prosecution?’ (2021) 32 Entertainment Law Review 138.
95 [2020] EWHC 1684 (QB), [41].
96 In the criminal context, a prosecution is not commenced when a person is charged and arrested, as that is not ‘putting in force the process of the law’ or a ‘prosecution’: Barkhuysen v Hamilton [2016] EWHC 2858 (QB).
97 CFC 26 Ltd v Brown Shipley & Co [2016] EWHC 3048 (Ch), [68]; CXZ [2020] EWHC 1684 (QB), [37].
98 Barkhuysen v Hamilton [2016] EWHC 2858 (QB), [146] (emphasis added); CFC 26, ibid, [66], citing: Clerk & Lindsell Tort Law (21st edn) [16-11].
99 [2017] 12 WLUK 144.
100 Ibid, point 3 of the court's findings, citing Gregory, above n 28, in support.
101 Mosley v Associated Newspapers [2020] EWHC 3545, [53] (emphasis added).
102 Secretary of State for Health v Servier Laboratories Ltd [2019] EWCA Civ 1160, [58].
103 Murphy, J ‘Malice as an ingredient of tort liability’ (2019) 78 CLJ 355CrossRefGoogle Scholar at 363.
104 [2016] UKSC 43, [55] (Lord Toulson).
105 Ibid, [56].
106 S v Kensington and Chelsea RB (QB, 28 November 2018) [23].
107 Hersi & Co Solicitors v Lord Chancellor [2018] EWHC 946 (QB) [134].
108 Szekely [2017] 12 WLUK 144, point 8, ‘conclusions’.
109 CFC 26 Ltd v Brown Shipley & Co Ltd [2016] EWHC 3048 (Ch), [70], citing: Chancery Guide, para 10.1.
110 Garbett, K and Karagoz, M ‘Shaping the tort of malicious prosecution of civil claims’ (2018) 168 NLJ 11Google Scholar.
111 Szekely [2017] 12 WLUK 144, point 9, ‘conclusions’ (TAD had alleged that TAMC had ignored requests for documentation during the Original Action; this was irrelevant to proof of malice; and, in any event, was justified because of the need for confidentiality during those proceedings).
112 [2016] UKSC 43, [55].
113 [2018] EWHC 3424 (Ch) [279] (Rose J).
114 Juman [2017] UKPC 3, [10]. See also S v Kensington and Chelsea RB (QB, 28 November 2018) [17].
115 This element is comprised of both an objective and a subjective enquiry – that, objectively, there were reasonable grounds for TAMC's bringing the Original Action against TAD; and that, subjectively, TAMC had an honest belief that there was a case against TAD fit to be tried in the Original Action. If either of these fails, then there is no reasonable or probable cause for TAMC's having instituted the original action.
116 [2016] UKSC 43, [54]; and see too Willers Trial Action [2018] EWHC 3424 (Ch), [278] (Rose J).
117 [2018] EWHC 3424 (Ch), [276] and [287], respectively.
118 Willers Strike-Out Action, ibid, [55] (Lord Toulson); and cited in: Juman [2017] UKPC 3, [18]; and Rees v Commr of Police [2018] EWCA Civ 1587, [85]. Whether that improper motive has to be a motive, or the dominant motive, for TAMC's bringing the Original Action, was not addressed by the majority, but was queried in dissent: [140] (Lord Mance). See too Sagicor [2013] UKPC 17, [101] (Lord Kerr).
119 Williamson v AG of Trinidad and Tobago [2014] UKPC 29, [12].
120 [2016] UKSC 43, [139].
121 That was the author's experiences as a litigator; and see too Garbett, K and Karagoz, M ‘Catch them if you can’ (2020) 170 NLJ 17Google Scholar (‘parties to litigation rarely, if ever, communicate their true motive for bringing a claim’).
122 Total Extraction Ltd v Aircentric Ltd [2021] EW Misc 21 (Barnsley CC), [39].
123 [2018] EWHC 3424 (Ch), [280].
124 [2016] UKSC 43, [124] (Lord Mance).
125 CFC 26 Ltd v Brown Shipley & Co Ltd [2016] EWHC 3048 (Ch), [73]–[74].
126 Juman [2017] UKPC 3, [17].
127 Ibid, [19].
128 Szekely [2017] 12 WLUK 144, point 6, ‘conclusions’.
129 Ecclesiastical Insurance Office plc v Whitehouse-Grant-Christ [2018] CSIH 19, [25].
130 Willers Trial Action [2018] EWHC 3424 (Ch), [303] (Rose J).
131 Mr Gubay arranged for caveats to be placed on the Willers’ residential home; attempted to prevent the payment of Mr Willers’ pension; took steps to obtain bank statements relating to Mr Willers’ private bank accounts; and engaged a private detective who probably used unlawful methods to obtain Mr Willers’ phone records: ibid, at [281].
132 Ibid, [281]–[287], [287], quote at [328].
133 [2016] UKSC 43, [178] (Lord Sumption).
134 Ibid, [79] (Lord Clarke), and [52] (Lord Toulson), respectively. Lord Toulson did not identify authority for the reference to 400 years of jurisprudence on the meaning of malice, but according to the author's searches, there is reference to ‘an action for a malicious prosecution’ in, eg, Cutler v Dixon (1585) 4 Co Rep 14b (KB), 76 ER 886, 888, at fn (A) of the report, as an editorial note to this Collateral Report. That case concerned witness immunity for anything said or done in court, even falsely and maliciously.
135 X v Bedfordshire CC [1995] 2 AC 633 (CA), 663 (Lord Bingham MR), cited in Sagicor [2013] UKPC 17, [73].
136 JD v East Berkshire Community Health NHS Trust [2005] UKHL 23 [100] (Lord Rodger).
137 Willers Strike-Out Action [2016] UKSC 43, [136].
138 Ibid, [174].
139 Ibid, [42] and [43], respectively. See too [66] (Lord Clarke).
140 White v Jones [1995] 2 AC 207 (HL), 268 (Lord Goff).
141 Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 (HL), 837 (Lord Steyn).
142 Sagicor [2013] UKPC 17, [104].
143 D Nolan ‘Tort and public law: overlapping categories?’ (2019) 135 Law Quarterly Review 272 at 287.
144 Noted in: Willers Strike-Out Action [2016] UKSC 43, [160], [168].
145 Per CPR 3.11, and PD 3C. See, for further discussion Gold, S ‘Civil way’ (2016) 166 NLJ 7715Google Scholar, 7715; and Sorabji, J ‘Malicious prosecution and abuse of process’ (2017) 36 Civil Justice Quarterly 387Google Scholar, 387.
146 Per nn 74 and 75 above.
147 [2016] UKSC 43, [8].
148 Per the Protection from Harassment Act 1997, as discussed in Shmilovits, L ‘Harassment: an elephant in the corner’ (2019) 135 Law Quarterly Review 27Google Scholar, 30; and Gold, above n 145. In Iqbal v Dean Mason Solicitors [2011] EWCA Civ 123, it was held that ‘even litigation, whose natural contentiousness also requires its own freedom of speech, can exceptionally be abused’ under the tort: R Mulheron Principles of Tort Law (Cambridge: Cambridge University Press, 2016), ch ‘HA’, principle HA.3, p 259.
149 Per the Congenital Disabilities (Civil Liability) Act 1976, s 1(1).
150 JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373, [126].
151 Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 (CA), 38.
152 Eg in Michael v South Wales Police [2015] UKSC 2, delivered 18 months prior to Willers.
153 Originating in: Grainger v Hill (1838) 4 Bing (NC) 212.
154 [2013] UKPC 17, [62], [149]. However, in Total Extraction Ltd v Aircentric Ltd [2021] EW Misc 21 (Barnsley CC, 30 September 2020) [54], termination in TAD's favour was said not to be required for the special instances of malicious prosecution of civil proceedings that pre-dated Willers v Joyce (per nn 38–42 above).
155 In Land Securities plc v Gladgate Fielder [2009] EWCA Civ 1402, it was stated that ‘the last reported successful action in this jurisdiction for the tort of abuse of process was either about 140 or 170 years ago’; also: Sagicor [2013] UKPC 17, [149] (‘there are only two reported cases in England in which the action has succeeded, both involving the now obsolete procedures for the arrest of debtors’).
156 See n 154 above. The case was brought, in the alternative, as a special category of the TOMP, but not for the generic TOMP.
157 [2020] EWHC 3545 (QB) [66], citing Sagicor [2013] UKPC 17, [62].
158 Sagicor, ibid, [84].
159 Willers Trial Action [2018] EWHC 3424 (Ch), [303]–[304].
160 Total Extraction, above n 154, [28], [33], [44], citing supportive comments in Grainger, above n 153.
161 Sagicor [2013] UKPC 17, [83].
162 The author is undertaking a detailed study of two doctrines which used to be torts that belonged in the stable of ‘abuse of litigation’, viz, champerty and maintenance, until their statutory abolition as torts (and as crimes) in 1967: The Modern Doctrines of Champerty and Maintenance (Oxford: Oxford University Press, forthcoming).
163 Identified in Mulheron, above n 45, pp 9–15, by reference to judicial sources.
164 Foreshadowed in J Goudkamp ‘A tort is born’ (2017) 167 NLJ 7753.
165 Mooted in Sorabji, above n 145, at 399.
166 [2016] UKSC 43, [179] (predicted by Lord Sumption); and ‘rarely applied’: Szekely [2017] 12 WLUK 144.
167 Fleming's The Law of Torts (Sweet & Maxwell, 10th edn, 2011) [27.10], as cited in Whitehouse v The Lord Advocate [2020] SCLR 165, [104].
168 Willers Strike-Out Action [2016] UKSC 43, [131], [174].
169 [2016] UKSC 43, [43].
170 CXZ v ZXC [2020] EWHC 1684 (QB) [41].
171 ie the tort nearly did not exist, as pointed out in, eg, Regan, D ‘Litigation: what next?’ (2016) 166 NLJ 7713Google Scholar at 7713; Samuels, A ‘Malicious prosecution: a useful weapon in the armory’ (2016) 160 Solicitors’ Journal 25Google Scholar at 28.
172 Lakatamia Shipping Co Ltd v Nobu Su [2021] EWHC 1907 (Comm), [123] (Bryan J).
173 [2016] UKSC 43, [57].
174 It is unlikely that the Supreme Court will reverse its 2016 decision, as: ‘[t]he presumption is that the Supreme Court will follow its own previous decisions … it has a power to reverse its previous decisions, which will be exercised sparingly’: Sir Philip Sales ‘The common law: context and method’ (2019) 135 Law Quarterly Review 47 at 59.
175 [1997] 11 WLUK 69 (CA, 5 November 1997), as described by the HL, above n 28, at 424–25.