Malicious prosecution: A useful weapon in the armoury

The situation is well known to many defendants and their solicitors. The civil action is withdrawn or discontinued

or successfully defeated, with costs. The defendants and

their solicitors feel that the case should never have been brought, they have suffered grievously, and they should have a remedy. They have a remedy: the tort of malicious prosecution of civil (as well as criminal) proceedings, as set out by Lord Toulson in Willers v Joyce [2016] UKSC 43.

The claimant must prove

that the defendant had no reasonable ground, cause, or justification for bringing the case, was aware of this fatal

flaw, and acted out of malice. The defendant must have acted in bad faith. The defendant must have known that his claim was untruthful and false, there was no honest belief, and he knew that his claim was vindictive, utterly without merit. More

than vexatious, the claim was

an abuse of the process of the court. The malicious defendant knew that the claimant, the victim in the earlier malicious civil proceedings, would suffer injury, damage, or harm.

The defendant was guilty of pursuing a campaign to do harm to the victim, and alas

he did so.

Injury or damageThe claimant could have suffered injury or damage arising from the earlier civil proceedings in

a variety of ways. For example, the adverse publicity could

have been widespread, so that the claimant suffered loss of reputation, distress, humiliation, damage to health, loss of public office, loss of employment, loss of earnings, or loss of prospects for the future. He may even have suffered arrest, loss of liberty, and imprisonment; abuse and assault by third parties; or loss

of property.

The fact that the claimant won the malicious case and triumphantly defended himself against all the false claims

made against him, may not be sufficient remedy. The damage was done. The public remember the false accusations, but do not remember, even if they come to know, the truthful vindications and exonerations.

Further, although the claimant may have won the malicious case brought by the malicious party, and recovered costs, life and litigation being what they are, he may still have suffered a sizeable gap between the costs awarded and the actual costs.

JustificationThe justifications for the existence of the tort of malicious prosecution of civil proceedings are clear enough:

• The defendant deliberately injured, damaged, or harmed the claimant and justice calls for a remedy;

• The defendant should
  
  make good the harm they
  
  have caused;

• The court cannot allow
  
  the abuse of process to
  
  go unpunished;

• Abusers and potential abusers of the court system must be deterred from wrongdoing; and

• Simply dismissing the earlier malicious civil proceedings, with costs, may not be a sufficient remedy in view
  
  of the serious and lasting harm still suffered by the innocent victim.

It is true that the claimant may have other remedies available, such as defamation, malicious falsehood, misfeasance in public office, civil conspiracy, breach of contract, breach

of employment law rights, or breach of commercial rights. However, such remedies may not cover the situation, and anyway the same wrongful acts by the defendant may properly constitute the basis for two or more legal remedies.

With restraint

However welcome the

existence of the tort of malicious prosecution of civil proceedings may be, it should not be embarked upon lightly.

All litigation carries risks.

Having at least fought off the malicious civil proceedings,

the traumatised victim may

not wish to pursue the matter further; he may feel relieved rather than vindictive.

As with much of the common law, the exact definition and extent of the tort may not

be too easy to ascertain and apply, expounded as it is in its resurrected form in the no doubt learned and lucid judgment of Lord Toulson.

Further, Willers was decided by a 5:4 majority in a nine-judge Supreme Court, a 'close-run thing' as the Duke of Wellington said of Waterloo.

However, where a claim does appear to have all the hallmarks of a false and malicious claim, which could seriously injure, damage, or harm a meritorious defendant, solicitors have a useful weapon in the armoury with which to defend their client and to urge restraint

upon the other side because

of potential consequences. SJ