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Malicious Prosecution
Last updated: 01-Apr-2015

Per Lord Kerr in Crawford Adjusters & Ors v Sagicor General Insurance (Cayman) Ltd & Anor (Cayman Islands ) [2013] UKPC 17 at paras 114-5 and 119:

Historical reasons for not extending liability for malicious prosecution to civil proceedings

114. It is interesting to trace the various reasons given in the past for not recognising liability for malicious prosecution in civil proceedings. In Savile the availability of pledges posted by plaintiffs was considered to be an adequate means of compensating the victim of such proceedings. In the Quartz Hill case the judgment of the court rejecting the malicious allegation was considered to provide appropriate redress to the wronged defendant. Likewise in Wiffen v Bailey and Romford Urban District Council [1915] 1 KB 600 the simultaneous presentation of the poison (the unfounded allegation) and the antidote (its rejection by the court) was deemed a sufficient recompense for the wrongly accused defendant. In Quartz Hill, the recovery of costs against the unsuccessful claimant was treated as a factor justifying the refusal to contemplate the availability of a further remedy for malicious prosecution of civil proceedings. And this was perceived to be the basis for the English rule in some of the decided cases in America – see, for instance, Lord Neuberger’s reference at para 177 of his judgment to Ciparick J’s discussion of this issue in Engel.

115. In Gregory v Portsmouth City Council [2000] 1 AC 419 Lord Steyn concluded that many of these reasons were no longer valid. At pp 427-428 he said:

"The traditional explanation for not extending the tort to civil proceedings generally is that in a civil case there is no damage: the fair name of the defendant is protected by the trial and judgment of the court. The theory that even a wholly unwarranted allegation of fraud in a civil case can be remedied entirely at trial may have had some validity in Victorian times when there was little publicity before the trial: see Little v Institute of Victoria (No 3) [1990] VR 257. However realistic this view may have been in its own time, it is no longer plausible. In modern times wide dissemination in the media of allegations in litigation deprive this particular reason for restricting the tort to a closed category of special cases of the support of logic or good sense. It is, however, a matter for consideration whether the restriction upon the availability of the tort in respect of civil proceedings may be justified for other reasons."

119. The case for recognising the existence of the tort for civil proceedings as well as in criminal proceedings seems to me far more grounded in logic than the case for refusing to extend it. Although the private prosecutor may take on the mantle of the state in criminal proceedings and although the coercive power of the state may be present in the prosecution by the DPP of offences, the central and critical species of wrongdoing is the same in malicious prosecution of civil proceedings. It is the procuring by malice of the discomfiture (at least) or the ruin (not infrequently) of the person against whom the action is taken for reasons disassociated with the professed purpose of the proceedings. Proceedings motivated by nothing more than malice are capable of wreaking devastation whether in pursuit of criminal prosecution or private action. Where it can be demonstrated that the court’s procedures do not provide an adequate remedy (or in this case no remedy at all) there can be no logic for denying the person who has suffered the same harm by the institution of civil proceedings as he who has been the victim of criminal proceedings. Indeed, it is not difficult to envisage cases where the harm will be considerably greater.

Lord Sumption (Dissenting) in Crawford Adjusters & Ors v Sagicor General Insurance (Cayman) Ltd & Anor (Cayman Islands ) [2013] UKPC 17 at para 129:`

The legal elements of the tort are defined in Clerk & Lindsell, The Law of Torts, 20th ed (2012), at para 16-09 as follows:
"In an action for malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say that the law was set in motion against him by the defendant on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly that it was without reasonable and probable cause; fourthly, that it was malicious."

Although the rule may be otherwise with regard to crimes, the law of England does not, according to my apprehension, take into account motive as constituting an element of civil wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad, or indifferent. But the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due. A wrongful act, done knowingly and with a view to its injurious consequences, may, in the sense of law, be malicious; but such malice derives its essential character from the circumstance that the act done constitutes a violation of the law.

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