Willers v. Joyce and another - (20 Jul 2016)

A person who suffers damage as a result of malicious prosecution of a civil suit against him is entitled to recover that damage

Tort

Principal issue in instant appeal is relating to prosecution of civil proceedings in tort of malicious prosecution. Instant appeal is from a decision striking out a claim brought by Mr Peter Willers against Mr Albert Gubay as disclosing no cause of action known to English law. Mr Willers was Mr Gubay’s right hand man for over 20 years until he was dismissed in the summer of 2009. Mr Willers was a director of Langstone Leisure Ltd. In 2010 Langstone sued Mr Willers for alleged breach of contractual and fiduciary duties in causing it to incur costs in pursuing the Aqua directors. Mr Willers defended the action, and issued a third party claim for an indemnity against Mr Gubay, on grounds that he had acted under Mr Gubay’s directions in the prosecution of the Aqua claim. It is Mr Willers’ case that, claim brought against him by Langstone was part of a campaign by Mr Gubay to do him harm. It is not disputed that they include all the necessary ingredients for a claim of malicious prosecution of civil proceedings, if such an action is sustainable in English law.

There is a public interest in finality and in avoiding unnecessary satellite litigation, but an action for malicious prosecution does not amount to a collateral attack on outcome of first proceedings. The tort does not create a duty of care. There is a great difference between imposing a duty of care and imposing a liability for maliciously instituting proceedings without reasonable or probable cause.

To make out malicious prosecution it is well established that, 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, Defendant does not have to believe that, proceedings will succeed. It is enough that, on material on which he acted, there was a proper case to lay before Court. Malice is an additional requirement. As applied to malicious prosecution, it requires Claimant to prove that, Defendant deliberately misused process of Court. Critical feature which has to be proved is that proceedings instituted by Defendant were not a bona fide use of Court’s process. Combination of requirements that, claimant must prove not only absence of reasonable and probable cause, but also that Defendant did not have a bona fide reason to bring proceedings, means that claimant has a heavy burden to discharge.

There is a close affinity between tort of malicious prosecution of a crime and tort of malicious prosecution of a civil action. A person who suffers damage as a result of malicious prosecution of a civil suit against him is entitled to recover that damage in just same way as a person who suffers damage as a result of malicious prosecution of criminal proceedings against him. While allowing the appeal, Court held that, entirety of Mr Willers’ claim should be permitted to go to trial.

Tags : MALICIOUS PROSECUTION CIVIL SUIT DAMAGES