Da Silva & Anor v The Department for Business, Energy And Industrial Strategy

For malicious prosecution, the claimant must prove prosecution, acquittal, absence of reasonable and probable cause, and malice. In a public-authority prosecution, the CPS Code for Crown Prosecutors is relevant: there must be enough evidence for a realistic prospect of conviction and prosecution must be in the public interest. Malice includes an improper motive, but absence of reasonable and probable cause does not by itself establish malice.

Whether a payment is a prohibited employment-agency fee depends on substance rather than its description. A court may infer that an unexplained part of a charge was for finding employment. Retention of a worker’s passport may amount to a detriment. On the facts, there was reasonable and probable cause for the prosecution and no malice.

The claimants, directors of Staff Supply Company Ltd, claimed damages against the Department for Business, Energy and Industrial Strategy for malicious prosecution and misfeasance in public office. The claims arose from their prosecution under the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003. They were acquitted by magistrates, who held that the prosecution had not proved the relevant offences to the criminal standard.

The defendant contended that the prosecution had reasonable and probable cause, that it was not malicious, and that the misfeasance claim was time-barred. The central issues were whether the prosecution had reasonable and probable cause, whether the defendant or its officers acted maliciously, and whether the misfeasance claim was barred by limitation.

1. Limitation. The defendant failed to establish that the misfeasance claim was time-barred. The pleaded misfeasance claim was based on the same facts as the malicious-prosecution claim. It would have been disproportionate and practically difficult to investigate separately when loss was suffered from each allegedly malicious act. The limitation defence was therefore rejected: [2018] EWHC 1591 (QB), paras [16]-[22].
2. Applicable principles. The claimants had to prove prosecution, acquittal, absence of reasonable and probable cause, and malice. Reasonable and probable cause required an honest and reasonable belief in guilt based on reasonable grounds. A prosecutor need not test every possible fact merely to discover whether a defence might exist. For a public authority, the two-stage test in the CPS Code was relevant: sufficient evidence for a realistic prospect of conviction and prosecution in the public interest: paras [7]-[10].
3. Malice. Malice includes spite, intent to injure and any improper motive, but an absence of reasonable and probable cause does not, without more, establish malice. Sloppiness and malice are distinct: para [11].
4. Employment-agency charges. The statutory language was deliberately wide. The question whether SSC charged a fee for finding employment was one of substance and inference, not the labels used in its documents. The £4,500 charges and the surrounding evidence made it reasonably arguable that at least part of the charges were for placing students in employment. The retention of passports could reasonably be viewed as a detriment because it could discourage workers from leaving employment: paras [14], [24], [27], [63], [148].
5. Evidence and investigation. The defendant was entitled to investigate further despite an earlier District Judge’s conclusion that SSC was not an employment agency. That decision did not explain the statutory test, and the defendant relied on different evidence. The investigation, witness statements, requests to banks, and decision to prosecute were reasonable and were not shown to be improper or malicious: paras [94], [97]-[106], [127]-[138].
6. Conclusion. There was reasonable and probable cause for the prosecution. The court also found that neither relevant officer acted maliciously or abused public power. The claims were dismissed: paras [147]-[150].

The judgment records that Foskett J permitted amendments to plead the misfeasance claims, leaving limitation for the trial judge. No appeal history is stated.