A Tort is Born: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings

Abstract

The law of torts periodically spawns a new cause of action. For example, Wilkinson v. Downton [1897] 2 QB 57 established the tort of wilful infringement of personal safety. The Protection from Harassment Act 1997 created the tort of harassment. Tort law sometimes also grows by absorbing a cause of action that was previously understood to pertain to another branch of the law. Thus, the action in breach of confidence, which was for centuries understood exclusively as a species of equitable wrongdoing, has been acknowledged, at least in cases that involve a breach of privacy as opposed to the divulgement of secret information, as a “tort” (see, e.g., Douglas v. Hello! Ltd [2007] UKHL 21; [2008] 1 AC 1 [255] (Lord Nicholls)). The newest addition to the stable is the tort of malicious prosecution of civil proceedings. The Supreme Court recognised that action in its landmark decision in Willers v. Joyce [2016] UKSC 43; [2016] 3 WLR 477. In doing so, the Court thereby gave the ancient tort of malicious prosecution of criminal proceedings a sibling. This article addresses the decision in Willers.

Keywords: tort, malicious prosecution, costs, fraud, personal injury

JEL Classification: K41, K13