Mutton v Baker

Mutton commenced proceedings against Baker, alleging that Baker maliciously caused his arrest by police, which constituted malicious prosecution, and further alleging that Baker made defamatory statements, injurious falsehood, in respect of the plaintiff’s business. The court was required to determine whether the statement of claim disclosed a cause of action, whether the claim had any real prospect of success, and if so, whether it was appropriate to grant leave to serve the amended statement of claim. The court considered that the elements of the tort of malicious prosecution include the instigation of judicial process, and whether the statement of claim alleged that a prosecution had been instigated. The court found that the plaintiff had not alleged any instigation of judicial process, and therefore did not allege the necessary elements of the tort of malicious prosecution. The court also found that the statement of claim did not allege that any defamatory statements were made to any third party, and therefore did not allege the necessary elements of the tort of injurious falsehood. The court dismissed the claim for want of prosecution. The court held that the claim for malicious prosecution had no real prospect of success because it was not pleaded that there had been any instigation of judicial process. The court further held that the claim for injurious falsehood had no real prospect of success because it was not pleaded that any defamatory statements were made to any third party. The court dismissed the application for leave to serve an amended statement of claim.