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of abuse of legal process.  It does not cover the majority of civil proceedings or the institution of disciplinary proceedings66.

Elements of Tort of Malicious Prosecution

34.To succeed in a claim for malicious prosecution, the claimant must show:

i.

he suffered a requisite form of damage;

ii.

as a result of a prosecution;

iii.

that terminated in his favour;

iv.

that reasonable and probable cause for bringing the prosecution were absent; and

v.

it was brought maliciously.

A brief summary of the key principles regarding each of these elements follows.   A malicious prosecution claim will usually entitle the parties to trial by jury67.

35.Three types of damage have been recognised as sufficient to support a claim for malicious prosecution: loss of reputation; risk of loss of “life, limb or liberty”; or financial loss68.  Loss of reputation is shown if the charge is defamatory of the claimant.  As regards loss of liberty, it is sufficient if the offence charged is one that is punishable by imprisonment, the claimant does not have to actually lose his liberty69.  Legal costs incurred in defence of the crime suffice to establish financial loss for these purposes.  Accordingly, prosecutions for all but very minor offences will usually entail “damage” to the claimant.

36.A prosecution consists of “setting a judicial office in motion”70.  Usually criminal proceedings are commenced by a charge or by an information laid before a magistrate.  Once one of these steps has been taken the claimant has been “prosecuted” even if proceedings are subsequent discontinued.  The person sued as a prosecutor must be someone who was “actively instrumental” in putting the law in motion71.  

66 Gregory v Portsmouth City Council [2000] 1 AC 419 HL.  For a summary of the limited circumstances in which malicious use of civil process can of itself amount to a tort see Clerk & Lindsell on Torts (19th ed) at paras 16-45 – 16-50.

67 See Supreme Court Act 1981 section 69 and County Court Act 1984 section 66.

68 Savile v Roberts (1698) 1 Ld Raym 374 at 378.

69 Wiffen v Bailey & Romford UDC [1915] 1 KB 600 CA.

70 Sewell v National Telephone Co [1907] 1 KB 557 CA.

71 Danby v Beardsley (1880) 43 LT 603.

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