Anthony Wilson & Ors v Department for Transport

An acquittal or collapse of a prosecution does not, without more, establish liability for malicious prosecution or misfeasance in public office.

For malicious prosecution, the claimant must prove prosecution in the claimant’s favour, absence of reasonable and probable cause, and malice. Reasonable and probable cause requires both an honest belief that there is a proper case to lay before the court and an objectively reasonable basis for that belief. The prosecutor need not believe conviction is probable or investigate every possible defence.

Malice requires a purpose other than bringing a person to justice. Where motives are mixed, the improper purpose must be predominant or the driving force. Incompetence, negligence and disclosure failures do not themselves establish malice or bad faith.

The six claimants brought claims in malicious prosecution and misfeasance in public office against the Department for Transport. The claims arose from a failed prosecution of the first five claimants for fraudulent trading concerning the manufacture and supply of non-compliant catalytic converters by Klarius Products Ltd.

The Department had initially investigated the matter through the Vehicle Certification Agency and took no further action. Following judicial review proceedings brought by competitors, it commissioned a fresh investigation through the Driver and Vehicle Standards Agency. Prosecution counsel advised that there was a realistic prospect of conviction, and the prosecution was authorised.

The prosecution later collapsed after serious disclosure failures. Not guilty verdicts were entered without the criminal court determining the substantive abuse of process or evidential applications. The central issues were whether the prosecution lacked reasonable and probable cause, whether it was brought or conducted maliciously or for an improper purpose, and whether the Department acted in bad faith.

1. Claims dismissed. The claimants failed to establish either malicious prosecution or misfeasance in public office. The criminal acquittals and the collapse of the prosecution did not determine, and did not establish, liability in the civil claims.
2. For malicious prosecution, the relevant question was whether the prosecutor honestly believed there was a proper case to lay before the court and whether there was an objectively reasonable basis for that belief. The prosecutor did not have to believe in probable conviction, investigate every possible defence or complete disclosure before charge. The advice of competent counsel was relevant and, where the relevant facts were presented, could be determinative: [2025] EWHC 1387 (KB), paras 377–379.
3. The Department had reasonable grounds to regard the VCA investigation as insufficiently rigorous. The fresh DVSA investigation generated evidence from ECT and AS capable of supporting a case that the regulatory breaches were deliberate and dishonest. The court was not deciding whether the claimants were guilty, but whether there was a proper case fit to be tried.
4. The judicial review proceedings caused the further investigation and were relevant background, but the court rejected the contention that the prosecution was brought to appease the judicial review claimants. The predominant purpose was to bring persons believed to be wrongdoers to justice. Any mixed motive therefore did not amount to malice.
5. The investigators’ shortcomings, their excessive closeness to one judicial review claimant, the inadequate consideration of VCA material and the disclosure failures were criticised. They were not shown to result from dishonesty, deliberate suppression, improper purpose or subjective recklessness. Incompetence or gross negligence falling short of reckless indifference was insufficient.
6. Misfeasance in public office likewise failed. There was no proof of targeted or untargeted malice, unlawful exercise of public power in bad faith, or absence of an honest belief in the lawfulness of the decision or conduct.
7. The alternative quantum findings were made only for completeness and did not affect the operative result.