Shaping the tort of malicious prosecution of civil claims

• Analyses the tests for malicious prosecution of civil claims.
• Suggests updating professional guidance for solicitors and barristers on the issue to reflect existing guidelines re allegations of fraud.

Until relatively recently, a defendant that had successfully defended a maliciously advanced civil claim was prevented from bringing a claim for malicious prosecution against that claimant in respect of the damage caused. While it is right that, as a matter of policy, merely successfully defending a claim should not give rise to a claim for malicious prosecution against the claimant, it does not follow that a defendant should be left without redress where a claimant acts maliciously or proceeds on the basis of an illegitimate purpose.

Serious allegations of wrongdoing and fraud against individuals have an immediate and irreparable impact. Even if the defendant successfully defends the claim, or the claimant discontinues its claim, the genie has already left the bottle and the damage