Gregory v Portsmouth City Council

The tort of malicious prosecution does not extend to domestic disciplinary proceedings instituted by a local authority against a councillor. Such an extension would be a radical and uncertain reform because disciplinary procedures vary greatly in form, purpose and severity.

The availability and potential development of related torts, including defamation, malicious falsehood, conspiracy and misfeasance in public office, also weigh against extending malicious prosecution. The tort remains narrowly confined to criminal prosecutions and established instances of abuse of civil legal process. Whether it should extend to civil proceedings generally was unnecessary to decide, although practical considerations militated against that development.

A local authority instituted disciplinary proceedings against one of its councillors for alleged misuse of confidential information. Its special committee found breaches of the relevant code and removed him from council committees. The Divisional Court quashed those decisions for want of authority and procedural unfairness: Reg v Portsmouth City Council, Ex parte Gregory [1990] 2 Admin LR 681. Fresh proceedings were later commenced and abandoned.

The councillor claimed damages for malicious prosecution, alleging malice, absence of reasonable and proper cause, reputational and personal injury, legal costs and financial loss. The claim was struck out. Tudor Evans J upheld that order, and the Court of Appeal dismissed a further appeal by a majority: (1997) 96 LGR 569.

The central issue before the House was whether malicious prosecution could extend to domestic disciplinary proceedings instituted by a local authority against a councillor. The House also considered whether the tort should extend to civil proceedings generally.

1. Appeal dismissed unanimously. Lord Steyn delivered the leading speech. Lord Browne-Wilkinson, Lord Nicholls of Birkenhead and Lord Hobhouse of Woodborough agreed with his reasons. Lord Millett expressed an additional reservation about whether committee membership was a legally protected interest, but dismissed the appeal in complete agreement with Lord Steyn.

2. Per Lord Steyn, malicious prosecution is narrowly defined. Its paradigm is an abuse of the coercive power of the state through criminal proceedings. A claimant must establish that the criminal law was set in motion against him, that the prosecution ended in his favour, and that it was instituted maliciously and without reasonable and proper cause. Damage is also essential.

3. English law had recognised liability outside criminal prosecution only in particular instances of abuse of civil legal process. These included malicious bankruptcy or winding-up proceedings, procurement of search or bench warrants, execution against property and arrest of a ship. They did not establish a general tort covering all civil or disciplinary proceedings.

4. Per Lord Steyn, the proposed extension to disciplinary proceedings would be radical and uncertain. Disciplinary bodies range from formal professional tribunals to informal social and sporting organisations. Their purposes may be punitive, protective or mixed. Case-by-case classification would therefore produce substantial uncertainty.

5. The existence of related torts also undermined the case for extension. Depending on the facts, defamation, malicious falsehood, conspiracy and misfeasance in public office could protect interests harmed by malicious disciplinary proceedings. Experience might justify the development of those torts, but it did not justify extending malicious prosecution. Lord Bridge's observation in Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, that malicious prosecution was unavailable for police disciplinary proceedings, reinforced this conclusion.

6. Lord Steyn regarded symmetry between immunity from suit and malicious-prosecution liability as relevant but not decisive. Immunity had itself extended to tribunals performing functions equivalent to courts, and the development of one doctrine need not invariably precede the other.

7. It was unnecessary to decide whether malicious prosecution should extend to civil proceedings generally. Lord Steyn nevertheless considered that practical need for such an extension had not been demonstrated. The protection available through related torts and their capacity for pragmatic development made a radical enlargement of malicious prosecution undesirable.

1. House of Lords: The appeal was dismissed unanimously. The House affirmed the Court of Appeal's conclusion that malicious prosecution did not extend to the disciplinary proceedings.

2. Court of Appeal: By a majority, Simon Brown and Robert Walker LJJ dismissed the appeal; Schiemann LJ dissented: (1997) 96 LGR 569.

3. High Court: Tudor Evans J upheld the district judge's order striking out the malicious-prosecution claim and granted leave to appeal.

4. County court: District Judge Naylor struck out the claim as disclosing no reasonable cause of action.

5. Divisional Court: In earlier judicial-review proceedings, the disciplinary decisions were quashed for want of authority and procedural unfairness: Reg v Portsmouth City Council, Ex parte Gregory [1990] 2 Admin LR 681.