Malicious Prosecution of Civil Proceedings

In Willers v Joyce [2016] UKSC 43 a Supreme Court panel of 9 (by a 5/4 majority) has decided that the malicious prosecution of civil proceedings is actionable.

Langstone had brought proceedings against a former director, Mr Willers, for damages for breach of his duties to the company. Mr Willers defended on the basis that he was acting under the instructions of Mr Gubay who controlled the company as a shadow director. Langstone abandoned the proceedings shortly before trial. Mr Willers commenced proceedings against Mr Gubay for malicious prosecution of the Langstone action. Those proceedings had been struck out at first instance as the Judge felt bound by the previous House of Lords decision in Gregory v Portsmouth City Council [2000] 1 AC 419.

In a leapfrog appeal, the majority held that it was instinctively unjust for a person to suffer injury as a result of malicious prosecution and yet not be entitled to compensation. Although there were a number of countervailing factors, they did not outweigh the argument that simple justice dictated that the claim should be sustainable. Such a claim could also include the excess legal costs paid beyond those originally awarded on the standard basis (the same not constituting an abuse of process).

It remains to be seen whether this will now open the door to a new tranche of civil litigation. Achieving success in a claim of malicious prosecution is no easy task. As Lord Toulson said, a claimant has a “heavy burden” to discharge. That is because it is necessary to prove not only the absence of reasonable and probable cause for bringing the initial proceedings but also that the defendant did not have a bona fide reason to do so.  What is clear is those who do bring such proceedings may find themselves on the receiving end of an action not previously possible prior to Willers. 

Bryan Patterson-Whitaker

Pupil Barrister