Willers v Joyce

Willers appealed against a decision of the High Court that his claim for malicious prosecution should be struck out. The appeal was from a decision of Ms Amanda Tipples QC, sitting as a deputy judge of the Chancery Division, striking out a claim brought by Mr Peter Willers against Mr Albert Gubay as disclosing no cause of action known to English law. The judge was faced with conflicting views of the House of Lords in Gregory v Portsmouth City Council [2000] 1 AC 419 and the Privy Council in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366. She held that she was bound by the decision of the House of Lords but granted a "leapfrog" certificate under section 12 of the Administration of Justice Act 1969, and permission to appeal was given by this court. The Supreme Court unanimously dismissed the appeal. Lord Toulson, with whom Lady Hale, Lord Kerr and Lord Wilson agreed, held that the appeal should be dismissed. Although the authorities were not conclusive, there was little support for the proposition that malicious prosecution could apply to civil proceedings generally. It was a tort which was developed to constrain the arbitrary exercise of the powers of public prosecuting authorities or private persons exercising corresponding functions against the claimant in subsequent potential malicious prosecution proceedings. The tort of malicious prosecution was developed as a tool for constraining the arbitrary exercise of the powers of public prosecuting authorities or private persons exercising corresponding functions against the claimant in subsequent potential malicious prosecution proceedings. In the non-criminal context this was limited to cases where the court was invited by the potential defendant to exercise ex parte or interlocutory powers which resulted in the claimant losing his liberty or property without the prior opportunity properly to defend himself. That was no basis for extending it to civil proceedings generally. The existence of the tort would be inconsistent with the well-established general rule that a litigant owes no duty to his opponent in the conduct of civil litigation. The existence of the tort would be inconsistent with the equally well-established rule that even a perjuring witness in court proceedings is absolutely immune from civil liability. The original justification for the tort in the criminal context did not apply in the ordinary civil context. The precise ambit of the tort, if it extends to civil proceedings of a private nature will be both uncertain and potentially very wide. The existence of the tort could well have unanticipated knock-on effects in other areas of law. Confirmation of the existence of the tort could well create a new weapon in the hands of a ruthless party, namely intimidation through the unjustified, but worrying, threat of a malicious prosecution claim to deter bona fide proceedings. Unlike courts in England and Wales, courts in the United States of America have considerable experience of claims for malicious prosecution in the civil field. The state courts are pretty evenly divided as to the existence of the wide tort contended for by the appellant. There could be real problems involved both in identifying what constitutes malice and in deciding what types of loss and damage should be recoverable in connection with claims based on the proposed tort. Finally, the unfortunate experience of the litigation prompted by Parliament's decision to extend the right of litigants to seek wasted costs orders against barristers in England and Wales through section 4 of the Courts and Legal Services Act 1990, illustrated the risks of according a right of action to those who suffer as a result of wrong-doing in the context of litigation. Lord Clarke agreed with Lord Toulson. Lord Neuberger, Lord Sumption and Lord Reed dissented. They held that the appeal should be dismissed. The tort of malicious prosecution was developed as a tool for constraining the arbitrary exercise of the powers of public prosecuting authorities or private persons exercising corresponding functions against the claimant in subsequent potential malicious prosecution proceedings. In the non-criminal context this was limited to cases where the court was invited by the potential defendant to exercise ex parte or interlocutory powers which resulted in the claimant losing his liberty or property without the prior opportunity properly to defend himself. That was no basis for extending it to civil proceedings generally. The existence of the tort would be inconsistent with the well-established general rule that a litigant owes no duty to his opponent in the conduct of civil litigation. The existence of the tort would be inconsistent with the equally well-established rule that even a perjuring witness in court proceedings is absolutely immune from civil liability. The original justification for the tort in the criminal context did not apply in the ordinary civil context. The precise ambit of the tort, if it extends to civil proceedings of a private nature will be both uncertain and potentially very wide. The existence of the tort could well have unanticipated knock-on effects in other areas of law. Confirmation of the existence of the tort could well create a new weapon in the hands of a ruthless party, namely intimidation through the unjustified, but worrying, threat of a malicious prosecution claim to deter bona fide proceedings. Unlike courts in England and Wales, courts in the United States of America have considerable experience of claims for malicious prosecution in the civil field. The state courts are pretty evenly divided as to the existence of the wide tort contended for by the appellant. There could be real problems involved both in identifying what constitutes malice and in deciding what types of loss and damage should be recoverable in connection with claims based on the proposed tort. Finally, the unfortunate experience of the litigation prompted by Parliament's decision to extend the right of litigants to seek wasted costs orders against barristers in England and Wales through section 4 of the Courts and Legal Services Act 1990, illustrated the risks of according a right of action to those who suffer as a result of wrong-doing in the context of litigation.