As many individuals that have been accused of fraud and wrongdoing are all too aware, serious allegations of this nature have the potential to cause immediate and irreparable harm. 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. Even if the Defendant successfully defends the claim, or the Claimant discontinues the claim, the damage that has been done cannot be undone.
Until relatively recently however, redress in such circumstances was only available in criminal proceedings (in the context of wrongdoing undertaken by the police, the CPS, SFO or some other body with prosecution powers). 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.
However, the decision of the Supreme Court in Willers v Joyce  UKSC 43 changed the position recognising the tort of malicious prosecution in respect of civil claims by a majority of 5:4; a decision which 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:
- proceedings had been brought against the Defendant;
- proceedings had been determined in the Defendant’s favour;
- the Claimant brought the proceedings without reasonable and probable cause;
- the Claimant brought the proceedings maliciously; and
- the Defendant suffered loss and damage.
After the Supreme Court decision recognising the tort as a matter of law, the case of Willers v Joyce  EWHC 3424 came before Mrs Justice Rose DBE in order to determine whether Mr Willers could make out such a claim on the facts of his case. The outcome was that Mr Willers' claim failed for several reasons, one of which was that Mrs Justice Rose DBE found that there was reasonable and probable cause for the previous civil claim brought by the Claimant.
Mr Willers had claimed (a) damages, including aggravated damages for distress, injury to health and injury to reputation, (b) loss of earnings, and (c) the difference between the full amount of the costs incurred by him in defending the previous proceedings and the amount of costs ordered in his favour. Mrs Justice Rose DBE considered these claims but identified several difficulties with quantification of loss. Whilst Mr Willers was ultimately unsuccessful, each of these heads of loss is potentially recoverable under this tort.
There are countless occasions when livelihoods, health and relationships are severely strained as a result of maliciously pursued litigation. It is right, therefore, that those individuals be given an avenue to pursue the wrongdoers and to receive an award of damages which goes some way to remedying those wrongs and the unfortunate consequences that malicious litigation often inflicts. 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. 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. However, it is important, particularly in light of Mrs Justice Rose DBE's decision, that careful consideration be given to the significant hurdles which must be overcome when alleging malicious prosecution of a civil claim.
Kathryn Garbett and Mehmet Karagoz first wrote about this topic which was published in the New Law Journal on 12 January 2018.