Malicious Prosecutions - Discussion

[R0b]

Just to add, the very recent judgment of Willers v Gubay in the surpreme court on 20 July has indicated that there is a claim for malicious prosecution. Looking at the thread their argument rested on the fact that they claimed you made a payment in 2010 And then they suddenly discontinued?

If that's the case then although you wouldn't ordinarily get costs for a discontinuance unless unreasonable conduct has occurred. There could be a claim for malicious prosecution where they have had no reasonable grounds to bring a claim, if successful the. You could get an award for damages.

As the case is new however, there is no case law to identify how this is going to work in practice but it seems to be along the same lines satisfying the question of malice.

That is another possible route if you want to claim back some compensation.

[Openlaw15]

Re: Claim for expenses

Just to add, the very recent judgment of Willers v Gubay in the surpreme court on 20 July has indicated that there is a claim for malicious prosecution. Looking at the thread their argument rested on the fact that they claimed you made a payment in 2010 And then they suddenly discontinued?

If that's the case then although you wouldn't ordinarily get costs for a discontinuance unless unreasonable conduct has occurred. There could be a claim for malicious prosecution where they have had no reasonable grounds to bring a claim, if successful the. You could get an award for damages.

As the case is new however, there is no case law to identify how this is going to work in practice but it seems to be along the same lines satisfying the question of malice.

That is another possible route if you want to claim back some compensation.

Rob, where is the attempted prosecution though. A compensation claim (tort) for malicious prosecution requires the party to have at least attempted a criminal charge aimed at the other person, or at least set one in motion, notwithstanding other things, it must also be 'reasonable and probable' cause to bring a prosecution - and not be made in malice (ie pure spite) too. If these elements are not satisfied, then a claim for malicious prosecution against the person is a possible tort remedy.

[R0b]

Re: Claim for expenses

It doesn't require a criminal element to prove. If you take the tort of malicious falsehood for example, the meaning of malice is to make a statement that causes damage whether in spite or recklessly as to taking care to check whether the statement was in fact true.

So in this instance, the fact that the solicitors have brought a claim on the basis that a payment was made in 2010 and did not take proper care to verify the truth of it, the bringing about of proceedings is therefore malicious with the intent of causing damage to that person.

On top of that, if they felt they had a valid claim why didn't they pursue it and instead decided to discontinue?

[Openlaw15]

Re: Claim for expenses

It doesn't require a criminal element to prove. If you take the tort of malicious falsehood for example, the meaning of malice is to make a statement that causes damage whether in spite or recklessly as to taking care to check whether the statement was in fact true.

So in this instance, the fact that the solicitors have brought a claim on the basis that a payment was made in 2010 and did not take proper care to verify the truth of it, the bringing about of proceedings is therefore malicious with the intent of causing damage to that person.

On top of that, if they felt they had a valid claim why didn't they pursue it and instead decided to discontinue?

The tort is 'malicious' and 'prosecution'.. it's to stop people abusing the criminal justice system to spite others. So where others abuse said system it creates a tort albeit the tort is very strict. In the UKSC case, the company was trying to bring claims against a director for breach of fiduciary duty. To bring a claim for malicious prosecution in this case, the company must have called the police and said he (the director) was stealing (ie something criminal), which may have then led the prosecution to initially consider bringing a prosecution but subsequently dropped the charges owing to a lack of criminal evidence: Bynoe v Bank of England (1902, CA) 1 KB 467. This reinforces existing common law for malicious prosecutions against corporations: see Rayson v South London Tramways Co (1893, CA) 2 QB 304; Leibo v D Buckman Ltd (1952), et al. This would support 'the prosecution attempt' of malicious prosecution in the 2016 UKSC case, too. Malicious falsehood relates more to compensation for defaming a person's character or something like that whereas malicious prosecution relates to the aforesaid, making them two completely separate tort remedies.

In this situation on this thread subject, the other party has not attempted a malicious prosecution against the Op. So it's very difficult to see how a malicious prosecution could have arisen on the facts.

[R0b]

Re: Claim for expenses

[MENTION=77627]Openlaw15[/MENTION], your focus ing in the meaning of prosecution to be that of criminal only and i have to disagree that a person or company does not have to call the police before a claim for malicious prosecution can happen. The meaning of prosecution in civil terms is to bring a claim against a person with no reasonable grounds to do so. Take Crawford adjusters b sagicor which was a heavy reference in Willers v Gubay, there was no calling of the police but the claimant concealed information deliberately when instructing his lawyers to bring a claim. Their judgment was that malicious prosecution is extended from criminal but also to civil. Criminal and civil claims are two entirely separate claims.

My example of malicious falsehood focuses on the definition of malice in a civil aspect and as the UKSC pointed out, there was 400 years of legal interpretation of malice so the argument of what constitutes malice was not put forward by either party. Therefore it is accepted that the meaning of malice for the purpose of civil proceedings will be set out in those earlier cases.

If you want to discuss it further I would suggest that a separate thread is created so this one doesn't get bogged down with detailed legal citations.

I will then happily give you my full view on what malicious prosecution means in a civil context.

[Diana M]

Re: Claim for expenses

If you want to discuss it further I would suggest that a separate thread is created so this one doesn't get bogged down with detailed legal citations.

I will then happily give you my full view on what malicious prosecution means in a civil context.

I'd be interested to read such a thread

It's a debate worth having.

Di

[charitynjw]

Re: Claim for expenses

@Openlaw15, your focus ing in the meaning of prosecution to be that of criminal only and i have to disagree that a person or company does not have to call the police before a claim for malicious prosecution can happen. The meaning of prosecution in civil terms is to bring a claim against a person with no reasonable grounds to do so. Take Crawford adjusters b sagicor which was a heavy reference in Willers v Gubay, there was no calling of the police but the claimant concealed information deliberately when instructing his lawyers to bring a claim. Their judgment was that malicious prosecution is extended from criminal but also to civil. Criminal and civil claims are two entirely separate claims.

My example of malicious falsehood focuses on the definition of malice in a civil aspect and as the UKSC pointed out, there was 400 years of legal interpretation of malice so the argument of what constitutes malice was not put forward by either party. Therefore it is accepted that the meaning of malice for the purpose of civil proceedings will be set out in those earlier cases.

If you want to discuss it further I would suggest that a separate thread is created so this one doesn't get bogged down with detailed legal citations.

I will then happily give you my full view on what malicious prosecution means in a civil context.

I'd be interested to read such a thread

It's a debate worth having.

Di

It would be worth having views on this.

A well honed argument, if successful, might dissuade potential claimants from going to court with only scant or spurious evidence to back their claim.
Could be a useful lever.

Maybe [MENTION=49370]Kati[/MENTION] would assist? (I'd suggest from about post #65)?

[Diana M]

Re: Claim for expenses

Maybe @Kati would assist? (I'd suggest from about post #65)?

But leave post # 65 on this thread because it answers the OP's question about claiming expenses following a Discontinuance

Di

[charitynjw]

Re: Claim for expenses

But leave post # 65 on this thread because it answers the OP's question about claiming expenses following a Discontinuance

Di

Theoretically, [MENTION=49370]Kati[/MENTION] could wave her 'superposition of different paths quantum mechanics' wand & the post will appear in 2 places at the same time.
I have complete confidence........................

[Kati]

Re: Claim for expenses

If you want to discuss it further I would suggest that a separate thread is created so this one doesn't get bogged down with detailed legal citations.

I will then happily give you my full view on what malicious prosecution means in a civil context.

I'd be interested to read such a thread

It's a debate worth having.

Di

It would be worth having views on this.

A well honed argument, if successful, might dissuade potential claimants from going to court with only scant or spurious evidence to back their claim.
Could be a useful lever.

Maybe @Kati would assist? (I'd suggest from about post #65)?

But leave post # 65 on this thread because it answers the OP's question about claiming expenses following a Discontinuance

Di

sorted :yo:
[MENTION=87380]Diana M[/MENTION] ... I left post #65 and copied two of R0b's posts back over to the other thread as well (seeing as the OP had quoted them )

- - - Updated - - -

Theoretically, @Kati could wave her 'superposition of different paths quantum mechanics' wand & the post will appear in 2 places at the same time.
I have complete confidence........................

:lol: ... glad someone does xx

[charitynjw]

Re: Claim for expenses

Theoretically, @Kati could wave her 'superposition of different paths quantum mechanics' wand & the post will appear in 2 places at the same time.
I have complete confidence........................

sorted :yo:
@Diana M ... I left post #65 and copied two of R0b's posts back over to the other thread as well (seeing as the OP had quoted them )

There you go!

[Openlaw15]

Re: Claim for expenses

@Openlaw15, your focus ing in the meaning of prosecution to be that of criminal only and i have to disagree that a person or company does not have to call the police before a claim for malicious prosecution can happen. The meaning of prosecution in civil terms is to bring a claim against a person with no reasonable grounds to do so. Take Crawford adjusters b sagicor which was a heavy reference in Willers v Gubay, there was no calling of the police but the claimant concealed information deliberately when instructing his lawyers to bring a claim. Their judgment was that malicious prosecution is extended from criminal but also to civil. Criminal and civil claims are two entirely separate claims.

My example of malicious falsehood focuses on the definition of malice in a civil aspect and as the UKSC pointed out, there was 400 years of legal interpretation of malice so the argument of what constitutes malice was not put forward by either party. Therefore it is accepted that the meaning of malice for the purpose of civil proceedings will be set out in those earlier cases.

If you want to discuss it further I would suggest that a separate thread is created so this one doesn't get bogged down with detailed legal citations.

I will then happily give you my full view on what malicious prosecution means in a civil context.

It may well be the case that a malicious prosecution tort has evolved into a non criminal malicious prosecution, ie the UKSC case 2016. However, if this were the case then it's simply confusing to the retain the 'malicious prosecution' in this tort's key term. In this eventuality, it should be 'malicious action' and not 'malicious prosecution.' The latter has been based on the criminal element - by way of the term 'prosecution' - in tort common law for simply a long time, notwithstanding the recent UKSC case.

[des8]

Re: Malicious Prosecutions - Discussion

It would appear that a claim for malicious prosecution may also apply to civil cases.
Crawford Adjusters & others v Sagicor General Insurance (cayman) Ltd & another [2013]UKPC 17

Yeah Privy Council so not binding?

I leave it to others to read and see if conclusion is the same ie bring a malicious claim in civil courts and you could be facing a claim yourself.

[Openlaw15]

Re: Malicious Prosecutions - Discussion

It would appear that a claim for malicious prosecution may also apply to civil cases.
Crawford Adjusters & others v Sagicor General Insurance (cayman) Ltd & another [2013]UKPC 17

Yeah Privy Council so not binding?

I leave it to others to read and see if conclusion is the same ie bring a malicious claim in civil courts and you could be facing a claim yourself.

The facts in Crawford were 'abuse of process' and 'malicious prosecution', ie with an actual criminal element.

[Openlaw15]

Re: Malicious Prosecutions - Discussion

Just to add, the very recent judgment of Willers v Gubay in the surpreme court on 20 July has indicated that there is a claim for malicious prosecution. Looking at the thread their argument rested on the fact that they claimed you made a payment in 2010 And then they suddenly discontinued?

If that's the case then although you wouldn't ordinarily get costs for a discontinuance unless unreasonable conduct has occurred. There could be a claim for malicious prosecution where they have had no reasonable grounds to bring a claim, if successful the. You could get an award for damages.

As the case is new however, there is no case law to identify how this is going to work in practice but it seems to be along the same lines satisfying the question of malice.

That is another possible route if you want to claim back some compensation.

Rob, you're bringing this so-called malicious prosecution as a remedy for this Op. I'll try to provide a brief balance. First of all it may affect the impecunious (the poor). What's to stop lawyers arguing in civil proceedings to stop genuine claims. What about tribunals, family law, ie vulnerable families or litigant in person; what's to stop the employer's lawyers arguing it's a malicious prosecution to bring proceedings against employers and suing the employees, or the union who represent them. It's like when the terrorists law came into power, who used this law, the government of course, the police of course, but the local council even used it. This the problem when there is an uncertain law and a necessarily wide law as a malicious prosecution in the civil proceedings is, it's just too vague and the law itself is vulnerable to abuse.

The other argument is that perhaps malicious prosecution is a good thing to stop the rich exploiting the legal system. After-all, the rich are worth suing as they have money, assets, so if they maliciously bring proceedings against the poor simply because they have all the resources, they could now be sued. Therefore, it could be a redistribution of wealth for the poor. It's unlikely however, as clearly the law is very strict. Is it really known what the differences are between 'abuse of the civil legal system' and 'malicious prosecution of the civil legal system.' It matters not, the lawyers will choose the remedy that protects their client.