In Willers v Joyce [2016] UKSC 43, the UK Supreme Court considered whether a claim in malicious prosecution could be brought in relation to civil proceedings by one individual against another.  The Court of Appeal had struck out Mr Willers' claim, stating he had no cause of action in English Law, and that malicious prosecution existed solely in relation to criminal proceedings.

The majority (five to four) considered that it would be instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person who instigated it.

The minority thought allowing the tort would:

  • Be inconsistent with the general rule that a litigant owes no duty to his opponent in civil litigation
  • Be inconsistent with witness immunity from civil liability
  • Create a danger of satellite litigation
  • Possibly have a chilling effect on the bringing of civil proceedings.

The Court, in setting out the test for the tort, noted that the combination of the requirements that the claimant must prove not only the absence of reasonable and probable cause, but also that the defendant must not have a bona fide reason to bring the proceedings, means that the claimant has a heavy burden to discharge.

Accordingly, the Court considered Mr Willers' case should be permitted to go to trial.

See the Court's decision here.