Fraud Insights: Malicious Prosecution Of Civil Claims

Until relatively recently, a defendant that had successfully defended a maliciously advanced civil claim was prevented from bringing a claim for malicious prosecution against that claimant in respect of the damage caused. Whilst malicious prosecution claims could be brought in respect of criminal proceedings, civil proceedings were treated differently.

Unfortunately, as many individuals that have been accused of fraud and wrongdoing are all too aware, serious allegations of this nature in the civil context have the potential to cause immediate and irreparable harm. Even if the defendant successfully defends the claim, or the claimant discontinues the claim, the damage that has been done is not uneasily undone. In these circumstances, the decision of the Supreme Court in Willers v Joyce [2016] UKSC 43, which recognised the tort of malicious prosecution in respect of civil claims, is to be welcomed.

The legal requirements which need to be satisfied in order to bring a claim for malicious prosecution of a civil claim are:

the proceedings had been brought against the defendant; the proceedings had been determined in the defendant's favour; the claimant brought the proceedings without reasonable and proper cause; the claimant brought the proceedings maliciously; and the defendant suffered loss and damage. Kathryn Garbett, Partner in the Mishcon de Reya Fraud Defence team says:

"There have been several occasions where we have represented innocent individuals who have had to endure years of litigation which involved allegations of wrongdoing and fraud. Litigation of this nature is usually hard fought and more often than not by the end of it, has had a destructive effect on livelihoods, families, careers as well as an individual's physical and mental wellbeing. Where an individual has successfully defended a malicious claim of this nature, or...