Mosley v Associated Newspapers Limited

The tort of malicious prosecution is concerned with the malicious abuse of court process. Although it extends beyond criminal prosecutions to certain civil proceedings, the claimant must show that proceedings were instituted or that the court’s process was invoked. A complaint or dossier sent to the police or prosecuting authority is insufficient where it produces no charge, investigation or other judicial process. The intended or actual publicity of the complaint does not alter that conclusion. Reputational harm caused by wider publication may instead be addressed through defamation or misuse of private information. Where the pleaded facts cannot establish the required prosecution, the claim may be struck out under CPR 3.4(2)(a).

The claimant had previously succeeded in a privacy action against News Group Newspapers Limited concerning publication of an article about him. Following discovery of a 1961 election leaflet, the defendant published articles questioning whether the claimant had committed perjury during that trial and sent a dossier to the Crown Prosecution Service. The CPS referred the material to the Metropolitan Police, but no criminal investigation or prosecution followed.

The claimant alleged that the defendant had maliciously and without reasonable and probable cause set the law in motion, causing reputational harm and distress. The defendant applied to strike out the claim on the basis that no prosecution had occurred. The central issue was whether sending material to the CPS, with the intention that an investigation or prosecution should follow, satisfied the prosecution element of the tort.

1. Application granted. The claim disclosed no reasonable grounds for bringing an action and was struck out under CPR 3.4(2)(a). The court assumed the pleaded facts in the claimant’s favour, including that the defendant had tried to interest the CPS and police in a perjury investigation.
2. The elements of malicious prosecution are: prosecution by the defendant; favourable termination; absence of reasonable and probable cause; and malice. Each element must be established separately. Malice cannot compensate for failure to prove prosecution.
3. Following Sagicor and Willers v Joyce, the tort extends to malicious prosecution of civil proceedings. Its more accurate description is malicious abuse of the process of the court. Authorities concerning bankruptcy and winding-up petitions, including Quartz Hill Consolidated Gold Mining Co v Eyre, remain explicable on that basis.
4. The prosecution element requires invocation or institution of court process. A complaint to the police or prosecuting authority is insufficient unless it results in effective steps bringing about proceedings. The CPS and police considered the dossier but decided that no investigation or charge should follow. There was no arrest, charge, laying of an information or other judicial process.
5. Amin v Bannerjee was explained by reference to the open-court inquiry that had occurred there. Casey v Automobiles Renault Canada was not accepted as stating the English test: its formulation was too wide, and the decision was distinguishable because the court process had at least technically been engaged.
6. The claimant was not left without a remedy for reputational harm caused by the articles. That harm arose principally from publication, not from the confidential submission to the CPS. Defamation was available, subject to the applicable defences, and there was no justification for extending malicious prosecution to fill the alleged remedy gap.