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Fraud Insights: Malicious Prosecution of Civil Claims

Posted on 29 January 2018 by Kathryn Garbett and Mehmet Karagoz

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:

  1. the proceedings had been brought against the defendant;
  2. the proceedings had been determined in the defendant’s favour;
  3. the claimant brought the proceedings without reasonable and proper cause;
  4. the claimant brought the proceedings maliciously; and
  5. 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 where a claimant discontinues a malicious claim, the defendant is often left relieved but somewhat frustrated. The frustration stems from their inability to obtain full compensation for the damage they have suffered to their reputation, health or earnings. It is hoped that the availability of the tort of malicious prosecution of civil claims will redress the balance for the victims of such malicious claims."

Mehmet Karagoz, Associate in the Mishcon de Reya Fraud Defence team says:

"Whilst not all successful defences will give rise to a potential claim for malicious prosecution, the availability of the tort allows individuals who are the victims of malicious civil claims to achieve some justice. Unfortunately, the speed at which information is communicated through the internet now means that publicly reported allegations of wrongdoing are likely to cast an irreversible shadow over the person named The ability of an individual to bring his or her claim for malicious prosecution of a civil claim will not only give rise to an opportunity to obtain compensation but also acts as a deterrent to claimants that attempt to misuse the Court in pursuit of personal vendettas and dishonest claims."

Kathryn Garbett and Mehmet Karagoz first wrote about this topic which was published in the New Law Journal on 12 January 2018.

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