Willers v Gubay

The High Court is bound by a House of Lords decision defining the tort of malicious prosecution as generally confined to criminal proceedings and special instances of abuse of civil legal process. A later majority decision of the Privy Council extending the tort to civil proceedings did not make it practically certain that the Supreme Court would depart from that binding authority. The exceptional circumstances permitting a lower court to prefer Privy Council authority were therefore absent. An ordinary civil action did not fall within the recognised exceptions and could not support a claim for malicious prosecution.

The claimant brought proceedings for damages alleging that the defendant had maliciously caused earlier civil proceedings to be brought against him. The defendant applied under CPR Part 3.4(2)(a), alternatively under the inherent jurisdiction, to strike out the claim on the ground that malicious prosecution of civil proceedings was not a cause of action known to English law.

The claimant relied on the majority decision of the Privy Council in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd, which recognised the tort in civil proceedings. The defendant relied on the binding House of Lords decision in Gregory v Portsmouth City Council. The central issue was whether the High Court could follow the Privy Council decision in preference to the House of Lords authority.

1. Claim struck out. The claim for damages for malicious prosecution of civil proceedings disclosed no reasonable grounds and was struck out under CPR Part 3.4(2)(a). The pleaded facts were assumed to be provable for the purpose of the application.
2. Effect of Gregory. The House of Lords had decided that, in English law, the tort was unavailable beyond criminal proceedings and special instances of abuse of civil legal process. Its discussion of the general extension of the tort to civil proceedings was expressly obiter, but it was fully argued and carefully considered. The present case concerned an ordinary civil action and did not fall within a recognised exception.
3. Effect of Crawford Adjusters. The Privy Council majority held that the tort applied generally to civil proceedings. That decision represented a development or extension of the law, rather than guidance on the proper interpretation of Gregory.
4. Precedent. A High Court judge could depart from binding domestic authority in favour of Privy Council authority only in the exceptional circumstances identified in cases such as R v James and Abou-Rahmah v Abacha, where it was effectively a foregone conclusion that the higher domestic court would adopt the Privy Council’s approach. Those circumstances were absent. Crawford Adjusters was decided by only three of the twelve Supreme Court justices, there were strong dissents, and there was no relevant overlap with the constitution of the House of Lords in Gregory.
5. Alternative ground. Even if Gregory were not binding, Quartz Hill Consolidated Gold Mining Co v Eyre remained binding and treated a winding-up petition as an exception to the general rule concerning ordinary civil actions. The present claim did not fall within that exception.
6. The court considered the policy argument for retaining the existing law unnecessary to decide.