Shaping The Tort Of 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. While it is right that, as a matter of policy, merely successfully defending a claim should not give rise to a claim for malicious prosecution against the claimant, it does not follow that a defendant should be left without redress where a claimant acts maliciously or proceeds on the basis of an illegitimate purpose.

Serious allegations of wrongdoing and fraud against individuals have an immediate and irreparable impact. Even if the defendant successfully defends the claim, or the claimant discontinues its claim, the genie has already left the bottle and the damage that has been done cannot be undone. It is in this context that the decision of the Supreme Court in Willers v Joyce [2016] UKSC 43, [2017] 2 All ER 327 which decided by a majority of 5:4 that the tort of malicious prosecution includes the prosecution of civil proceedings, is to be welcomed. Reflecting on this decision from 2016, it is perhaps surprising that there has not been a flurry of malicious prosecution claims in respect of civil proceedings. Here, we revisit the issues discussed in Willers v Joyce and consider some of the points that practitioners and the courts will need to consider in shaping the tort of malicious prosecution of civil claims.

Willers v Joyce

The key issue before the Supreme Court in Willers v Joyce was whether the tort of malicious prosecution includes the prosecution of civil proceedings. The appeal to the Supreme Court was from a decision of the Chancery Division [2015] EWHC 1315 which struck out a claim for malicious prosecution of a civil claim brought by Mr Willers against Mr Gubay. Judge Amanda Tipples QC's ruling in the Chancery Division was made on the basis that the decision in Gregory v Portsmouth City Council ([2000] 1 AC 419, which decided that English law did not recognise the tort of malicious prosecution in relation to civil proceedings) was binding on the court and that in English law, the tort of malicious prosecution is not available beyond the limits of criminal proceedings. Therefore, Mr Willers's claim for damages for malicious prosecution ought to be struck out as it disclosed no cause of action known to English law.

However, permission was given to appeal directly to the Supreme Court in light of the conflicting authorities of the House of Lords in Gregory...