Malicious Prosecution

Malicious prosecution* is a tort which is sometimes grouped together with others as torts involving an abuse of legal process. It is similar to false imprisonment in the sense that false imprisonment, and other trespasses, can involve a breach of legal process in some sense. For example, if police officers abuse their powers of arrest and detain a suspect without proper legal authority to do so, they have abused proper legal process in a way.

But there are also notable differences between malicious prosecution and false imprisonment, especially in terms of the traditional approach to them. Malicious prosecution, traditionally, was an indirect tort that arose from an action on the case. In contrast, false imprisonment was traditionally a direct form of wrongdoing and therefore a trespass. No doubt this difference has become somewhat confused with the more recent shift from direct versus indirect to intentional versus unintentional torts.

Elements of malicious prosecution

So what are the elements of the tort of malicious prosecution? A person causes a prosecution to be brought against a particular individual by providing information. Prosecution here means the launch of official criminal proceedings. It does not include civil proceedings (such as in tort, contract etc.). There is authority that it might include bankruptcy proceedings or proceedings to wind up a company.

In order for a person to be successful in an action for malicious prosecution (where he or she was the defendant), the plaintiff in this action must show that:

  • there was no reasonable or probable cause for the plaintiff in the malicious prosecution (i.e. the defendant or accused in the action for prosecution) to instigate the proceedings in question;
  • the plaintiff in the malicious prosecution acted with an element of malice*. Malice means the absence of any proper motive to instigate the action. Hatred, ill-will and the desire to cause harm to the defendant are some types of malice. Negligence is not malice;
  • the proceedings failed—i.e. the malicious prosecution was unsuccessful; and
  • the defendant in the malicious prosecution suffered loss. This element demonstrates some connection to historical actions on the case rather than trespass.

The actions for malicious prosecution are comparatively rare.

Note:

You will need to get used to the way that we constantly make a distinction between things which are legal and things which are not.

Reading

Turn to your Reader for the following cases on the general nature of the tort of malicious prosecution:

Glinski v McIver [1962] AC 762

Roy v Prior [1970] 2 All ER 729

Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc. [1990] 1QB 391

Offei also discusses some South Pacific cases at pp. 77–86. Take note of Manorama Raju v Gurnam Singh and Another [1975] 21 Fiji 22 and Attorney-General v Wilson Wong (1994) Appeal No. 4 Solomon Islands.

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