Pankim Kumar Patel v Minerva Services Delaware, Inc & Ors

On an application to amend a statement of case, the claimant must show a real, rather than fanciful, prospect of success and plead a coherent and properly particularised case. The court should not conduct a mini-trial, particularly in developing areas of law, although claims which are plainly unsustainable may be refused.

Following Willers v Joyce, malicious prosecution may in principle extend to civil proceedings, but its precise limits remain developing. It was not appropriate at an amendment stage to decide that malicious prosecution could never apply to foreign proceedings. Abuse of process was potentially capable of applying to foreign proceedings and foreign arbitrations. Malicious prosecution did not extend to arbitrations.

The claimant sought permission under Civil Procedure Rules 1998, Part 17 to amend his Points of Claim in an unlawful means conspiracy claim. The proposed amendments alleged that proceedings brought in England, Delaware and a Delaware arbitration constituted malicious prosecution or abuse of process, and added allegations concerning a forged deed, corporate attribution, malice and losses.

All three defendants opposed the amendments. The central issues were whether the proposed tort claims were legally maintainable in relation to foreign proceedings and arbitrations, whether the pleaded facts met the merits and particularity threshold, and whether the alleged losses were capable of recovery.

1. Amendment principles. Permission to amend was governed by the broad discretion under Civil Procedure Rules 1998, Part 17, r 17.1(2). The claimant had to show a real prospect of success, a coherent and properly particularised pleading, and claims maintainable under the law as it stood. The court should not conduct a mini-trial, but could reject claims which were plainly bad in law.
2. Malicious prosecution and foreign proceedings. The tort requires prosecution by the defendant, favourable termination, absence of reasonable and probable cause, malice and recoverable loss. The authorities did not establish an absolute bar to claims concerning foreign proceedings. Because the law remained developing, the issue should ordinarily be determined at trial where the facts were available.
3. Abuse of process. Abuse of process remained distinct from malicious prosecution. It concerned the use of proceedings for a predominant purpose outside the purpose for which they were designed. It was potentially capable of applying to foreign proceedings and foreign arbitrations, although the issue should be left to trial.
4. Arbitration. The court rejected the proposed extension of malicious prosecution to maliciously prosecuted arbitrations. The repeated emphasis in the authorities on legal proceedings meant that the claim had no real prospect on that basis. The court did not regard the US decision in ZF Automotive as assisting, since it construed a particular statute.
5. Pleading issues. The claimant was not required at this stage to plead evidence, to establish that the companies’ directors’ wills had been overborne, or to elect between alternative directing minds. Allegations of malice, attribution, causation and recoverability were generally matters for trial, subject to limited directions requiring clearer cross-references and further detail.
6. Foreign law and disposition. The claimant could rely at the pleading stage on the default rule and presumption of similarity concerning foreign law. Permission to amend was granted, save for the expressly rejected matters, including the malicious-prosecution claim concerning arbitration, the unspecified miscellaneous costs, and costs claimed from MSD which pre-dated its incorporation.

The judgment itself was a first-instance decision on an application to amend. It records that an earlier appeal in the same litigation had been dismissed by the Court of Appeal, but that decision was not under appeal in this application.