Discovering the Tort of Malicious Prosecution – Undergraduate Legal guidelines Weblog

This submit has been contributed by Dr Carol Brennan,  Module Convenor for Tort legislation.

Tort college students will probably be conscious that Tort Regulation is usually known as ‘the Regulation of Torts’ as a result of it’s comprised of a multiplicity of various actions. Many of those are apparently unconnected and shield various pursuits: not solely integrity of particular person and property however repute, privateness and the sanctity of contractual relationships. No college tort syllabus can start to cowl all the completely different torts, generally stated to quantity to as many as 70. It could be attention-grabbing to be taught a bit about one of many much less well-known, which has lately garnered some publicity: malicious prosecution.

The creating legislation on privateness noticed a major contribution from Sir Max Mosley, former Chairman of Method One and the son of Sir Oswald Mosley, a infamous British fascist within the lead-up to World Warfare 2. In 2008 he introduced a profitable motion for misuse of personal data towards the New sof the World for publishing a kiss-and-tell interview with a lady who took half with him in a sexual ‘orgy’, with the story accompanied by pictures of the individuals in uniforms which some stated had ‘Nazi’ connotations. The court docket held that he had a ‘cheap expectation of privateness’ relating to this exercise, and that there was inadequate public curiosity in its publication. Due to this fact he was awarded beneficiant damages. Sir Max later petitioned the ECtHR, unsuccessfully, relating to his request that publishers be compelled to present advance discover to the topics of controversial tales.

Ten years later he introduced an motion towards the publishers of the Day by day Mail for damages for malicious prosecution. That is an outdated tort, with case references going again to at the very least the seventeenth century. It’s considered a trespass tort which is directed towards the hurt of imprisonment or risk of imprisonment, in addition to harm to the repute of the claimant. The motion initially utilized to prison actions solely nevertheless it now contains instigations of civil proceedings as effectively. Nonetheless, in contrast to different trespass torts, it’s not actionable per se; harm should be proved. To deliver a profitable motion for malicious prosecution the claimant should show every of the next:

1. the defendant prosecuted him (or offered related data to the prosecuting authority);
2. the prosecution lacked cheap and possibly trigger;
3. the defendant acted maliciously (with some wrongful or improper motive) and
4. the claimant suffered harm consequently.

Sir Max’s case was based mostly upon the truth that the defendant newspaper had despatched a file of proof to the Crown Prosecution Service indicating that he had lied on oath within the 2008 privateness proceedings. He alleged that the defendants had acted in such a approach as to do his repute as a lot hurt as potential, and partially by reporting broadly and intimately in regards to the file. Malicious prosecution actions are often heard by a choose and jury though this one was struck out by a single choose as disclosing no cheap grounds for bringing the declare. The rationale this motion failed was that no prison prices have been introduced on account of the defendant’s motion. The choose confirmed that it’s vital ingredient of the tort that the defendant’s actions ‘be efficient in bringing about proceedings.’ Right here the CPS, having reviewed all of the details, had declined to proceed towards Sir Max.

Fears of the ‘floodgates’ impact of proliferating malicious prosecution actions haven’t been realised. Nonetheless there are apparent coverage the explanation why the courts are eager to maintain it inside strict boundaries with the intention to shield the state’s discretion to prosecute, which should stay unfettered. It’s attention-grabbing to contemplate what different tort actions may have been introduced by Sir Max in these circumstances and what their prospects for fulfillment could be.