In July 2016, the UK Supreme Court handed down its decision in Willers -v- Joyce & Anor [2016] UKSC 43, and, by a majority of 5:4, held that the tort of malicious prosecution of civil proceedings is recognised under English law.

Before Willers, the tort of malicious prosecution was limited to the malicious prosecution of criminal proceedings, potentially giving rise to a cause of action by a party who had successfully defended such proceedings. In a civil context, the cause of action for malicious prosecution had also been available within narrow confines, often involving immediate damage, such as the malicious presentation of a winding-up petition. In Gregory -v- Portsmouth City Council [2000] 1 AC 419, Lord Steyn had previously noted that he was ‘not persuaded that the general extension of the tort to civil proceeding has been shown to be necessary’ considering ‘the protection afforded by other related torts’.

Willers followed soon after the decision in Crawford Adjusters (Cayman) Ltd -v- Sagicor General Insurance (Cayman) Ltd [2014] AC 366, where, by a 3:2 majority, the Privy Council (in an appeal from the Cayman Islands Court of Appeal) held that bringing a claim based on the malicious prosecution of a civil action is within the scope of the tort of malicious prosecution.

Willers resolved the tension between Gregory and Crawford Adjusters, and extends the scope of the tort under English common law to both civil and criminal matters. A separate judgment in Willers given by Lord Neuberger has helpfully clarified the status of Privy Council decisions before the courts of England and Wales – i.e. the limited circumstances when they can be relied upon as legal authority.

Hong Kong position

In Hong Kong, shortly before the Willers decision, the Court of Appeal in Pathak Ravi Dutt -v- Sanjeev Maheshwari [2015] HKCA 595 had summarised that in an action for malicious prosecution, the plaintiff must prove four essential elements:

  1. the plaintiff was prosecuted by the defendant, that is to say, the law was set in motion against the plaintiff by the defendant on a criminal charge
  2. the prosecution was determined in the plaintiff’s favour
  3. the prosecution was without reasonable and probable cause
  4. the prosecution was malicious

As noted above, in England the Willers decision has expanded this first element.

In light of Willers, the Hong Kong courts have also considered the application of the tort of malicious prosecution to civil proceedings. In Sum Cheung Wai -v- Tsui Hin Yuet [2016] HKCA 378, the Court of Appeal noted Crawford Adjusters, Gregory and Willers, and commented in passing that the matter was one of ‘current debate’, although it did not arise directly in that case.

In Yanfull Investments Ltd -v- Datuk Ooi Kee Liang [2016] HKCFI 723, Chan J heard a summons to set aside an ex parte order granting the plaintiff leave to serve the writ out of the jurisdiction under RHC Order 12. One of the causes of action was the malicious prosecution of civil proceedings. Chan J noted Crawford Adjusters, and held that there was not enough material to ‘hold that this cause of malicious prosecution is so devoid of merit that I can strike it out’ and he struck out the claim on limitation grounds instead. The subsequent appeal to the Court of Appeal, and application for leave to appeal heard by the Court of Final Appeal, found no error in Chan J’s reasoning.

The approach of Chan J was discussed in Chua, Grace Gonzales -v- Sobrevilla, Rhennie Boy Fernandez [2017] HKDC 1029, where Her Honour Judge Winnie Tsui noted the developments in Sum Cheung Wai and Yanfull, and observed that there seems to be an implicit acceptance that the malicious prosecution of civil proceedings is ‘a viable tort in Hong Kong’, and that the plaintiff’s claim so based could not be ‘struck out on the ground that the tort itself is not recognised at law.’

The cumulative effect of Willers as cited with approval in Hong Kong in Yanfull therefore appears to be that the tort of malicious prosecution of civil proceedings is now also recognised in Hong Kong.

What may be recoverable

The Court of Appeal in T -v- Shiu Wai Tuen [2011] HKCA 411 noted that there is a lack of Hong Kong authority regarding quantum of damages in malicious prosecution claims.

In Willers, the claimant sought damages for damage to health, earnings, and recovery of the excess of legal costs over the amount awarded pursuant to the costs order in the action by the defendant against the claimant (for breach of contract and fiduciary duty), which the defendant had abandoned shortly before trial. The Supreme Court allowed all of these to be permitted to go to trial in the circumstances of that case.

Claims for malicious prosecution are rare in Hong Kong and, as noted in Willers by Lord Mance, they are ‘virtually extinct’ in England. The extension of the tort to include the malicious prosecution of civil (in addition to criminal) proceedings may in time give a rise to an increase in the number of claims.

Moreover, the tort could expand further. Lords Mance and Neuberger, who each gave a dissenting judgment in Willers, suggested that logically the tort could extend to a malicious defence, or to an individual application or step in litigation, to family court or even to arbitral proceedings.

However, those possible expansions notwithstanding, succeeding in a claim for malicious prosecution will be difficult. Lord Toulson in Willers noted that anyone bringing a claim must prove that there was the ‘absence of reasonable and probable cause’, and that ‘the defendant did not have a bona fide reason to bring proceedings’, which ‘means that the claimant has a heavy burden to discharge’.