Gregory v Portsmouth City Council

The tort of malicious prosecution remains confined to the established categories recognised by authority: most criminal proceedings and civil insolvency proceedings. It does not extend to disciplinary proceedings conducted by a local authority where its committees are administrative bodies, rather than courts or tribunals exercising equivalent judicial functions. Publicity, adversarial procedure, reputational harm and absolute privilege do not, by themselves, justify judicial extension of the tort. A substantial policy-driven expansion, likely to create practical difficulties, is a matter for Parliament.

The appellant, a councillor, was subjected to disciplinary proceedings by Portsmouth City Council concerning alleged breaches of the National Code of Local Government Conduct. The findings and penalties were later quashed by the Divisional Court in R v Portsmouth City Council ex parte Gregory and Mos (1990) 2 Administrative Law Reports 681. The Council subsequently decided not to recommence the proceedings.

The appellant claimed damages for malicious prosecution, alleging malice, lack of reasonable and probable cause, reputational and health damage, and expense. A district judge struck out the claim, and Tudor Evans J dismissed the appeal. The central issue was whether disciplinary proceedings before the Council's committees could found an action for malicious prosecution.

1. Appeal dismissed. Simon Brown LJ, with whom Robert Walker LJ agreed, held that the tort did not extend to the disciplinary proceedings in question. Schiemann LJ dissented.
2. The established law recognised malicious prosecution principally in most criminal proceedings and in civil insolvency proceedings, such as bankruptcy and winding-up petitions. The traditional ingredients included prosecution, favourable termination where possible, absence of reasonable and probable cause, malice and legally recognised damage. The traditional heads of damage were injury to reputation, person or property, as stated in Savile v Roberts (1699) 1 Ld Raym. 374.
3. The Council's committees were not courts or tribunals exercising functions equivalent to those of courts. They were performing an administrative function, albeit under a duty to act fairly. The proceedings therefore did not involve setting the law in motion before a judicial authority. The fact that they were public, adversarial and disciplinary did not alter their legal character. The Council's role also created the difficulty that the alleged wrong concerned the Council's use of the wrong determining committees, rather than a prosecution before a separate tribunal.
4. The majority accepted that the existing boundaries of the tort were imperfect and difficult to justify in every respect. Nevertheless, the authorities supplied no sufficient basis for extending the tort to administrative disciplinary proceedings. Absolute privilege and the possibility of serious reputational or financial harm did not require such an extension. In the view of Robert Walker LJ, a substantial development of the law, with potentially numerous practical consequences, was for Parliament rather than judicial creativity.
5. Dissent. Schiemann LJ would have allowed the claim to proceed. He considered that, absent binding authority or overriding policy reasons, the law should provide a remedy for malicious disciplinary proceedings causing physical or mental injury, reputational loss or financial loss. He regarded the historical restrictions as products of circumstances no longer applicable.
6. The appeal was dismissed with costs. Costs incurred while the appellant was legally aided before 4 November 1994 were not to be enforced without leave; his costs were subject to legal aid taxation, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the appeal against Tudor Evans J's order and refused leave to appeal to the House of Lords.
• Queen's Bench Division: Tudor Evans J dismissed the appeal from the district judge and held that the disciplinary proceedings were not legal proceedings capable of founding malicious prosecution.
• District judge: struck out the claim on 15 October 1992.
• Divisional Court: in separate judicial-review proceedings, quashed the disciplinary findings and penalties in R v Portsmouth City Council ex parte Gregory and Mos (1990) 2 Administrative Law Reports 681.