When civil proceedings are malicious

If you are sued by someone else, you might feel angry and aggrieved. How dare they? The allegations are completely unjustified! They themselves are at fault! But if the proceedings against you were brought maliciously, the Supreme Court has now confirmed that this in itself can provide you with an action against your accuser.

The case (Willers v Joyce [2016] UKSC 43) involved a dispute between the directors of a private company. The company brought a claim against one of the directors, Mr Willers, for breach of his director’s duties. Mr Willers defended the action on the basis that he had been acting under the direction of another director, Mr Gubay. The company discontinued the action shortly before trial. Mr Willers then brought his own action for malicious prosecution, alleging that Mr Gubay was out to do him harm.

When the action came before the Supreme Court, the question was whether a tort (or civil wrong) of malicious prosecution existed, and if so whether there were public policy reasons against allowing claims of this type.

The court reviewed caselaw going back to the 1600s, and concluded that the authorities were in conflict. As regards the policy ground, it was argued that there is an existing sanction against someone who brings an improper claim, namely indemnity costs. However, the court found (by a 5:4 majority) that it would be unjust for there to be no remedy for a person who suffers injury as a result of malicious prosecution of civil proceedings. Accordingly, the tort of malicious prosecution of civil proceedings does exist.

What is it that makes a claim ‘malicious’? A Claimant will have to establish that the proceedings were brought without reasonable and probable cause, and that the party who brought them did so maliciously, i.e. by deliberately misusing the process of the court. The proceedings must not be a bona fide use of the court’s process.

The court’s judgment stressed that it would not be easy to prove that a case was brought maliciously, and the number of successful claims will be small. However, the likely effect of the Supreme Court decision is going to be as a deterrent to potential Claimants whose claims are uncertain, or where the facts are not entirely clear.

Michael Feakes