A new tort? Malicious prosecution of civil proceedings

Although apparently not yet referred to in a medical litigation setting (nor yet referred to in an Australian judgment), last years decision of the United Kingdom Supreme Court Willers v Joyce [2016] UKSC 43 held that a claim in malicious prosecution could be brought in relation to civil proceedings by an individual against another individual. The claim was remitted for trial. The summary published by the court explained:

To make out malicious prosecution it is well established that the requirements of absence of reasonable and probable cause and malice are separate requirements although they may be entwined. In order to have reasonable and probable cause, the defendant does not have to believe that the proceedings will succeed. It is enough that, on the material on which he acted, there was a proper case to lay before the court. Malice is an additional requirement. As applied to malicious prosecution, it requires the claimant to prove that the defendant deliberately misused the process of the court. The most obvious case is where the claimant can prove that the defendant brought the proceedings in the knowledge that they were without foundation. But the authorities show that there may be other instances of abuse. A person, for example, may be indifferent whether the allegation is supportable and may bring the proceedings, not for the bona fide purpose of trying that issue, but to secure some extraneous benefit to which he has no colour of a right. The critical feature which has to be proved is that the proceedings instituted by the defendant were not a bona fide use of the court’s process [54-55]. The combination of requirements that the claimant must prove not only the absence of reasonable and probable cause, but also that the defendant did not have a bona fide reason to bring the proceedings, means that the claimant has a heavy burden to discharge [56].

James Goudkamp has now published a paper on the decision: The Birth of a Tort: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings (2017) (June) New Law Journal.

Unfortunately it seems that although remitted for trial last year, the claim itself (as of last week) remains in interlocutory stages: see Willers v Joyce [2017] EWHC 1225 (Ch).


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