Willers v Joyce: malicious prosecution extended

A claim in malicious prosecution can be brought in relation to civil proceedings between private individuals, the Supreme Court has held by a 5-4 majority.

Malicious prosecution already exists in relation to criminal proceedings. The groundbreaking judgment in Willers v Joyce [2016] UKSC 43 now extends malicious prosecution to civil proceedings.

For the purposes of the appeal, the court was invited to assume that Mr Gubay controlled a leisure company, Langstone, of which Mr Willers was a director. Mr Willers was later dismissed as director of Langstone and in 2010 Langstone sued Mr Willers for alleged breach of contractual and fiduciary duties in pursuing litigation.

On 28 March 2013, Langstone discontinued its claim against Mr Willers. Mr Willers claimed that the claim brought against him by Langstone was part of a campaign by Mr Gubay to do him harm. Consequently he sued Mr Gubay for malicious prosecution.

It was not disputed that the alleged actions of Mr Gubay constituted the necessary ingredients for a claim in malicious prosecution (on the assumption Mr Willers could substantiate such claims at trial); the question was whether a claim in malicious prosecution could be brought in relation to civil proceedings by an individual against another individual.

Delivering the lead judgment, Lord Toulson said it was not disputed that the claim brought against Willers by Langstone had “all the necessary ingredients for a claim of malicious prosecution of civil proceedings, if such an action is sustainable in English law”.

He said: “It seems 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 responsible for instigating it.”

On the counter argument that the tort might deter valid civil claims, Toulson J said there was “no way of testing the hypothesis and it seems to me intrinsically unlikely”. He also dismissed the argument that it could encourage satellite litigation since it did not “amount to a collateral attack on the first proceedings”.