Discovering the Tort of Malicious Prosecution

This post has been contributed by Dr Carol Brennan,  Module Convenor for Tort law.

Tort students will be aware that Tort Law is sometimes referred to as ‘the Law of Torts’ because it is comprised of a multiplicity of different actions. Many of these are apparently unconnected and protect diverse interests: not only integrity of person and property but reputation, privacy and the sanctity of contractual relationships. No university tort syllabus can begin to cover all of the different torts, sometimes said to amount to as many as 70. It might be interesting to learn a bit about one of the less well known, which has recently garnered some publicity: malicious prosecution.

A person holding a digital camera up close

The developing law on privacy saw a significant contribution from Sir Max Mosley, former Chairman of Formula One and the son of Sir Oswald Mosley, a notorious British fascist in the lead-up to World War 2. In 2008 he brought a successful action for misuse of private information against the New sof the World for publishing a kiss-and-tell interview with a woman who took part with him in a sexual ‘orgy’, with the story accompanied by photos of the participants in uniforms which some said had ‘Nazi’ connotations. The court held that he had a ‘reasonable expectation of privacy’ regarding this activity, and that there was insufficient public interest in its publication. Therefore he was awarded generous damages. Sir Max later petitioned the ECtHR, unsuccessfully, regarding his request that publishers be compelled to give advance notice to the subjects of controversial stories.

Ten years later he brought an action against the publishers of the Daily Mail for damages for malicious prosecution. This is an old tort, with case references going back to at least the 17th century. It is regarded as a trespass tort which is directed against the harm of imprisonment or threat of imprisonment, as well as damage to the reputation of the claimant. The action originally applied to criminal actions only but it now includes instigations of civil proceedings as well. However, unlike other trespass torts, it is not actionable per se; damage must be proved. To bring a successful action for malicious prosecution the claimant must prove each of the following:

  1. the defendant prosecuted him (or provided relevant information to the prosecuting authority);
  2. the prosecution lacked reasonable and probably cause;
  3. the defendant acted maliciously (with some wrongful or improper motive) and
  4. the claimant suffered damage as a result.

Sir Max’s case was based upon the fact that the defendant newspaper had sent a dossier of evidence to the Crown Prosecution Service indicating that he had lied on oath in the 2008 privacy proceedings. He alleged that the defendants had acted in such a way as to do his reputation as much harm as possible, and in part by reporting widely and in detail about the dossier. Malicious prosecution actions are usually heard by a judge and jury although this one was struck out by a single judge as disclosing no reasonable grounds for bringing the claim. The reason this action failed was that no criminal charges were brought as a result of the defendant’s action. The judge confirmed that it is necessary ingredient of the tort that the defendant’s actions ‘be effective in bringing about proceedings.’ Here the CPS, having reviewed all the facts, had declined to proceed against Sir Max.

Fears of the ‘floodgates’ effect of proliferating malicious prosecution actions have not been realised. However there are obvious policy reasons why the courts are keen to keep it within strict boundaries in order to protect the state’s discretion to prosecute, which must remain unfettered. It is interesting to consider what alternative tort actions could have been brought by Sir Max in these circumstances and what their prospects for success might be.

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