CXZ v ZXC

The tort of malicious prosecution requires the claimant to show that legal proceedings were instituted by setting the law in motion through an appeal to a person clothed with judicial authority. A police complaint, investigation, voluntary interview under caution, search or threat of arrest does not suffice where no arrest or charge occurs. The extension of the tort to civil proceedings does not remove the requirement for an instituted legal process. Privacy-law developments concerning police investigations do not, at first instance, justify extending the tort to uncharged investigations.

The claimant alleged that the defendant maliciously reported him to the police for sexually abusing their children. The police investigated, interviewed him voluntarily under caution, searched premises and later took no further action. No arrest or charge occurred.

The claimant brought proceedings for malicious prosecution. The defendant applied to strike out the claim under CPR 3.4(2)(a) or alternatively for summary judgment under CPR r.24.2(a)(i). The central issue was whether the pleaded facts established the first element of malicious prosecution.

1. Application granted. The claim was struck out and summary judgment was entered for the defendant. The claimant had no realistic prospect of establishing that he had been prosecuted.
2. The essential first element of malicious prosecution is that the law was set in motion against the claimant by an appeal to a person clothed with judicial authority. This reflects the tort’s character as wrongful use or malicious abuse of legal process. The principle was supported by Martin v Watson [1996] 1 AC 74, AH v AB [2009] EWCA Civ 1092, Barkhuysen v Hamilton [2016] EWHC 2858 (QB) and CFC 26 Ltd v Brown Shipley & Co Ltd [2016] EWHC 3048 (Ch).
3. A voluntary interview under caution remained conceptually distinct from arrest because it did not deprive the claimant of his liberty. The claimant was never arrested, charged or brought before a judicial authority. The decision in Sallows v Griffiths [2001] FSR 15 did not assist because that case involved arrest and charge.
4. Willers v Joyce [2016] UKSC 43 established that the tort may extend to civil proceedings, but confirmed rather than removed the requirement for an instituted process. It did not support extending the tort to an investigation in which no process was instituted.
5. The claimant relied on developments concerning privacy in police investigations, including ZXC v Bloomberg LP [2020] EWCA Civ 611. Those developments recognised potential reputational harm but did not justify extending malicious prosecution to an uncharged investigation, particularly at first instance.
6. The claimant’s application for relief from sanctions under CPR 3.9 was left without order. The sanction from which relief was sought was unclear, making application of the Denton v White test impossible, and the application appeared academic.