Should a person who maliciously institutes civil proceedings without any reasonable and probable cause be held liable in the same way as the malicious prosecutor in criminal proceedings? Early case law in England is equivocal, but a decision of the House of Lords in 2000 specifi cally rejected it.1 However, two recent decisions have brought about a signifi cant change.
In Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd, 2 the Privy Council, in a three to two majority decision,3 upheld the action. Then in Willers v Joyce, 4 the same question arose for determination by the UK Supreme Court, and this time by a fi ve to four majority, it was again resolved in favour of allowing the action. Let us consider fi rst the background to these two decisions and then look at the reasoning underlying the majority and the minority views. In English law, there is a long-established category of claim, laid down authoritatively in Quartz Hill Consolidated Gold Mining Co v Eyre, 5 where an action does lie, namely civil proceedings which attack the credit of the person sued, like bankruptcy proceedings or a winding up petition against a company. There are a few other special cases,6 but in all other circumstances, the courts in England have in the past denied a remedy even in the case of civil claims making serious allegations of fraud or immorality. One justifi cation for this restrictive view lies not in any matter of high principle but in the theory propounded in Quartz Hill Consolidated Gold Mining Co v Eyre, that the bringing of an ordinary civil action, unlike an action which may wreck credit the moment it becomes known that it has been started, does not naturally or necessarily involve any injury to reputation, person or property. First, it is argued that the defendant suffers no loss of reputation or standing, because his character will be cleared by the successful defence of the charge.7 But this view may be criticised on the grounds that public suspicion may be aroused by the mere bringing of charges, irrespective of their outcome, and that in any event, no similar argument applies where a person successfully defends a criminal charge. Second, it is said that the defendant’s only pecuniary damage will ...
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