Summary
The tort of malicious prosecution extends to civil proceedings. A claimant must prove that the defendant instituted proceedings which terminated in the claimant’s favour, lacked reasonable and probable cause, were brought maliciously, and caused damage. Malice requires an improper purpose to be the sole or dominant purpose.
Recoverable damage includes foreseeable economic loss beyond the costs of defending the proceedings. Abuse of process remains distinct. It requires use of proceedings for an object outside their proper scope; a wish to harm an opponent through the successful prosecution of the relief claimed is insufficient.
Factual background
An insurer brought civil proceedings alleging that a loss adjuster had participated in fraud and conspiracy concerning payments for hurricane reconstruction work. The proceedings were discontinued after disclosure undermined the expert reports on which the allegations depended. The loss adjuster suffered substantial professional and financial damage.
The Grand Court dismissed his counterclaim for abuse of process and malicious prosecution. It found all the factual elements of malicious prosecution proved but considered that the tort did not extend generally to civil proceedings. The Cayman Islands Court of Appeal dismissed his appeal.
The central issues before the Board were whether malicious prosecution extended to ordinary civil proceedings, whether abuse of process had been established, and whether consequential economic loss was recoverable.
Held
By a majority, the appeal was allowed. Lord Wilson, Lady Hale and Lord Kerr held that malicious prosecution extends to civil proceedings. The common law had originally admitted such liability, and the later restriction associated with Quartz Hill Consolidated Gold Mining Co v Eyre had rested on the obsolete premise that a civil defendant’s vindication and costs arrived simultaneously with the damaging allegation. Modern publicity can cause serious reputational and economic harm long before trial. Lord Steyn’s obiter observations in Gregory v Portsmouth City Council [2000] 1 AC 419 did not prevent recognition of the tort where no alternative remedy addressed a manifest injustice.
The applicable elements are that the defendant instituted or continued proceedings which terminated in the claimant’s favour, lacked reasonable and probable cause, were prosecuted maliciously, and caused damage. Malice is established where an illegitimate or oblique purpose is the sole or dominant purpose. The absence of reasonable cause is a separate and demanding requirement. These elements provide substantial protection against retaliatory or unmeritorious secondary litigation.
Foreseeable economic loss is recoverable in malicious prosecution and abuse of process. Recovery is not confined to defence costs or other out-of-pocket expenses. The contrary principal reasoning in Land Securities plc v Fladgate Fielder [2009] EWCA Civ 1402 was wrong.
Sagicor was liable for malicious prosecution. The underlying proceedings had ended in the appellants’ favour; there had been no reasonable cause for the fraud and conspiracy allegations; the dominant purpose was to destroy the loss adjuster professionally; and substantial loss had resulted. The responsible officer’s subjective belief in fraud did not assist because it lacked reasonable cause.
Abuse of process was not established. That tort requires the proceedings to be used to obtain an object outside their lawful scope. Although professional destruction was the predominant motive, the judge had not found that it was to be achieved otherwise than through initiation and successful prosecution of the action. An improper motive for seeking the relief claimed did not itself amount to an improper use of process.
Judgment was entered for the appellants for CI$1.335 million. Lord Sumption and Lord Neuberger dissented. They considered that extending malicious prosecution to ordinary civil proceedings was inconsistent with established limits, litigation immunity and the policy against secondary litigation.
The court’s approach to earlier authorities
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Appellate history
- Privy Council: By a majority, allowed the appeal and entered judgment for the appellants for CI$1.335 million.
- Cayman Islands Court of Appeal: On 5 April 2012 dismissed the appeal from the Grand Court. Sir Anthony Campbell JA delivered the judgment, with which Sir John Chadwick P and Elliott Mottley JA agreed.
- Grand Court of the Cayman Islands: On 14 February 2011 Henderson J dismissed the counterclaim. He found the factual ingredients of malicious prosecution proved but held that the tort did not extend to ordinary civil proceedings. He also held that the proceedings had not been used for an object outside their proper scope.
Key cases cited
25 authorities cited.
- Jones v Kaney [2011] UKSC 13
- Trent Strategic Health Authority (Respondents) v Jain and another (Appellants) [2009] UKHL 4
- Gorringe (by her litigation Friend June Elizabeth Todd)(FC) (Appellants) v. Calderdale Metropolitan Borough Council (Respondents) [2004] UKHL 15
- Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435
- Gregory v Portsmouth City Council [2000] 1 AC 419
- X (Minors) v Bedfordshire County Council [1995] 2 AC 633
- Land Securities Plc & Ors v Fladgate Fielder (A Firm) [2009] EWCA Civ 1402
- JSC BTA Bank v Ablyazov & Ors [2011] EWHC 1136 (Comm)
- A v New South Wales [2007] HCA 10
- Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674
- Rawlinson v Purnell Jenkison and Roscoe (1999) 1 NZLR 479
- Gibbs v Rea [1998] AC 786
- Williams v Spautz (1992) 174 CLR 509
- Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391
- Little v Law Institute of Victoria [1990] VR 257
- Speed Seal Products Ltd v Paddington [1985] 1 WLR 1327
- New Zealand Social Credit Political League Inc v O'Brien [1984] 1 NZLR 84
- Goldsmith v Sperrings Ltd [1977] 1 WLR 478
- Roy v Prior [1971] AC 470
- Berry v British Transport Commission [1961] 1 QB 149
- Wiffen v Bailey and Romford Urban District Council [1915] 1 KB 600
- Grainger v Hill (1838) 4 Bing (NC) 212
- Daw v Swaine (1668) 1 Sid 424
- Savile v Roberts 1 Ld Raym 374
- Jones v Givin (or Gwynn) 93 ER 300
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Cases citing this case
16 later cases · 8 positive · 4 neutral · 3 caution · 1 negative
Most senior citing decisions:
- Trevor Williamson v The Attorney General of Trinidad and Tobago [2014] UKPC 29 applied
- Crawford v Jenkins [2014] EWCA Civ 1035 considered
- Singh v Moorlands Primary School & Anor [2013] EWCA Civ 909 approved
- Yello Voice Solutions Limited v Onecom Partners Limited [2026] EWHC 1856 (Comm)
- Maggie Otto v Inner Mongolia Happy Lamb Catering Management Company (Re HLHP Oriental Food Limited) [2025] EWHC 3307 (Ch)
- Andrew Breeze & Anor v Chief Constable of Norfolk Constabulary [2025] EWHC 2684 (KB)
- Pradeep Morjaria & Ors v Camran Mirza & Ors [2025] EWHC 1961 (Ch)
- Pankim Kumar Patel v Minerva Services Delaware, Inc & Ors [2024] EWHC 172 (Ch)
- FKJ v RVT & Ors [2023] EWHC 3 (KB)
- W NAGEL (A FIRM) v CHAIM PLUCZENIK & Ors [2022] EWHC 1714 (Comm)
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