Malicious Prosecutions - Discussion

[des8]

Re: Malicious Prosecutions - Discussion

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

I would hazard a guess that the importance of the decision lies in overturning the standard assumption that actions for malicious prosecution in civil cases could only be brought in a very small category of cases.

The claim for abuse of process was dismissed.
The claim for malicious prosecution was upheld by a majority. The dissenters being concerned about the possible effects as outlined in OL post 15
.

[charitynjw]

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.

Thanks, des.

I'll have a look after I can get my head around Willers v Joyce.
But at first glance, the Willers case may be a useful deterrent to those claimants who seem to consistently flout CPR, especially SC CPR 27, where costs awarded for abuse of process is as rare as hens' teeth.

[R0b]

Re: Malicious Prosecutions - Discussion

For everyone's benefit, a brief summary of the claim in the case is set out below.

Summary of Case before the Supreme Court
Mr Gubay was an owner of a leisure company (now deceased) and Mr Willers was a director before being dismissed in or around 2009. The Leisure company brought proceedings against Willers for breach of contract and so Willers issued an indemnity from Gubay claiming to have acted under instructions.

A few weeks before trial, the Leisure company discontinued the claim against Willers and so Willers decided to bring a claim for malicious prosecution. It was already accepted that the leisure company satisfied the criteria of malicious prosecution but the question was whether or not malicious prosecution was extended to civil proceedings.


So what are the ingredients to bring a malicious prosecution claim?
It is probably helpful to understand the requirements to bring a successful claim in a criminal context:

1. There is criminal proceedings brought against the defendant
2. the prosecution determined in favour of the defendant
3. it was without reason and probable cause
4. it was malicious

Now you could easily transfer that into a civil context, points 1 and 2 are self explanatory so focus is on the latter 2.

Without reason and probable cause
'probable cause' isn't really a british definition and that is widely used over the in the USA, but for ease i'm going to refer to 'probable cause' as reasonable belief as we all know what that means in the English legal system. @Openlaw15's argument below is exactly the sort of argument made out in the Supreme Court case.

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.

The answer to that is reasonable belief, and if you reasonably believe that you have a genuine claim and are using the court's process to obtain justice then there will be no claim for malicious prosecution. This could be by way of evidence provided to the court which backs up your claim, even if you eventually lose the case. If the other side wishes to argue the claim is being brought maliciously then the burden of proof rests with the defendant to prove that the claimant's claim was groundless and had no good reason to bring a claim.

The bringing of proceedings was malicious
As the Supreme Court pointed out, there has been over 400 years of legal meanings of malice each of which has been refined over the years. I'm not going to cite every case law or meaning to that because the post would go on forever however, my interpretation of malice in a civil context is the improper motive of the claimant. What is the meaning of improper motive? Well this is where it could overlap with the abuse of process argument (which I might add is entirely a separate ground and is distinct from malicious prosecution) in that the claimant is using the court system which was not bona fide and instead for example, as leverage to compel the other side into paying a sum of money which it does not owe. Malicious prosecution of course goes against the well known basis that a claimant does not owe a duty of care in civil proceedings (one of the arguments raised by Sumption I believe who dissented) but nevertheless, the Court decided that it would be unjust for someone to have proceedings brought against them as a result of malicious prosecution and have no right to compensation. It has also been held that knowledge or recklessness will be virtually conclusive as malice (Kaye v Robertson [1990] EWCA Civ 21).

Overall, I do agree with OL that the bar for malicious prosecution is high and the burden of proof is on the defendant to show that not only was the bringing of the claim without reasonable belief but also malicious. However, this burden I think, could easily be overcome in certain industries and I will use the debt purchasing industry as a prime example. We all know that debt purchasers issue claims in bulk (probably) without taking any consideration as to the merits of the case. Therefore statute barred claims and claims with no evidence will be included in this bulk issue of proceedings. The debt purchasers will put on pressure for the defendant to pay up or have the thread of a CCJ against the defendant which will cause extensive damage to them for the following 6 years in terms of credit, mortgage etc.

There have also been many claims by debt purchasers on this forum that have indicated that defendant's have made so called one-off payments that would bring the claim within the limitation period. Now I don't want to accuse any business of fabricating evidence but when a defendant hasn't made a payment for a number of years and then suddenly a nominal amount is paid in one month but not the following months sounds very shifty.

Luckily, in the thread that brought this discussion about, the OP had proof that no payment had been made by him on the date that the debt purchaser had suggested. As I understood it to be, despite telling them this, they continued with proceedings and then as soon as the defence had been submitted or after mediation, they suddenly discontinued the case. As I said in the post, if there was a genuine claim and they genuinely believe that the payment was made why did they not pursue it? The fact that the decided not to verify or ask the OP proof which could have ended proceedings earlier, they chose to ignore that and you could potentially argue that the debt purchaser had been reckless (maybe deliberate) in continuing with proceedings for the sake of it and then suddenly discontinuing before trial thus falling within the scope of malicious prosecution.

Personally, I think the debt purchasing industry is likely to be most affected by this and I suspect they may have to change their ways. Debt purchasers who obtain judgment against a person (particularly at their old address) resulting in a CCJ for someone only to discontinue the case (for one reason or another) after it being setting aside could land themselves in trouble if claims for malicious prosecution are brought. This is a potential deterrent against those who think its okay to issue proceedings if they do not have the requisite knowledge or basis for bringing a claim.

We also need to note that the claim for malicious prosecution will be permitted to go to trial and so the result of that is likely to be found in favour of Willers given that it was accepted the criteria was met. Perhaps the High Court will give us some indication of the necessary ingredients and how one can satisfy the criteria for a claim to be successful.

P.s another example of where malicious prosecution could be brought is those defamation claims brought by Kellie's Veggies where there are future claims brought either as a separate claim or counterclaim.

[Openlaw15]

Re: Malicious Prosecutions - Discussion

For everyone's benefit, a brief summary of the claim in the case is set out below.

Summary of Case before the Supreme Court
Mr Gubay was an owner of a leisure company (now deceased) and Mr Willers was a director before being dismissed in or around 2009. The Leisure company brought proceedings against Willers for breach of contract and so Willers issued an indemnity from Gubay claiming to have acted under instructions.

A few weeks before trial, the Leisure company discontinued the claim against Willers and so Willers decided to bring a claim for malicious prosecution. It was already accepted that the leisure company satisfied the criteria of malicious prosecution but the question was whether or not malicious prosecution was extended to civil proceedings.


So what are the ingredients to bring a malicious prosecution claim?
It is probably helpful to understand the requirements to bring a successful claim in a criminal context:

1. There is criminal proceedings brought against the defendant
2. the prosecution determined in favour of the defendant
3. it was without reason and probable cause
4. it was malicious

Now you could easily transfer that into a civil context, points 1 and 2 are self explanatory so focus is on the latter 2.

Without reason and probable cause
Now, 'probable cause' isn't really a british definition and that is widely used over the in the USA, but for ease i'm going to refer to 'probable cause' as reasonable belief as we all know what that means in the English legal system. @Openlaw15's argument below is exactly the sort of argument made out in the Supreme Court case.



The answer to that is reasonable belief, and if you reasonably believe that you have a genuine claim and are using the court's process to obtain justice then there will be no claim for malicious prosecution. This could be by way of evidence provided to the court which backs up your claim, even if you eventually lose the case. If the other side wishes to argue the claim is being brought maliciously then the burden of proof rests with the defendant to prove that the claimant's claim was groundless and had no good reason to bring a claim.

The bringing of proceedings was malicious
As the Supreme Court pointed out, there has been over 400 years of legal meanings of malice each of which has been refined over the years. I'm not going to cite every case law or meaning to that because the post would go on forever however, my interpretation of malice in a civil context is the improper motive of the claimant. What is the meaning of improper motive? Well this is where it could overlap with the abuse of process argument (which I might add is entirely a separate ground and is distinct from malicious prosecution) in that the claimant is using the court system which was not bona fide and instead for example, as leverage to compel the other side into paying a sum of money which it does not owe. Malicious prosecution of course goes against the well known basis that a claimant does not owe a duty of care in civil proceedings (one of the arguments raised by Sumption I believe who dissented) but nevertheless, the Court decided that it would be unjust for someone to have proceedings brought against them as a result of malicious prosecution and have no right to compensation. It has also been held that knowledge or recklessness will be virtually conclusive as malice (Kaye v Robertson [1990] EWCA Civ 21).

Overall, I do agree with OL that the bar for malicious prosecution is high and the burden of proof is on the defendant to show that not only was the bringing of the claim without reasonable belief but also malicious. However, this burden I think, could easily be overcome in certain industries and I will use the debt purchasing industry as a prime example. We all know that debt purchasers issue claims in bulk (probably) without taking any consideration as to the merits of the case. Therefore statute barred claims and claims with no evidence will be included in this bulk issue of proceedings. The debt purchasers will put on pressure for the defendant to pay up or have the thread of a CCJ against them which will cause extensive damage to them for the following 6 years.

There have also been many claims by debt purchasers on this forum that have indicated that defendant's have made so called one-off payments that would bring the claim within the limitation period. Now I don't want to accuse any business of fabricating evidence but when a defendant hasn't made a payment for a number of years and then suddenly a nominal amount is paid in one month but not the following months sounds very shifty.

Luckily, in the thread that brought this discussion about, the OP had proof that no payment had been made by him on the date that the debt purchaser had suggested. As I understood it to be, despite telling them this, they continued with proceedings and then as soon as the defence had been submitted or after mediation, they suddenly discontinued the case. As I said in the post, if there was a genuine claim and they genuinely believe that the payment was made why did they not pursue it? The fact that the decided not to verify or ask the OP proof which could have ended proceedings earlier, they chose to ignore that and you could potentially argue that the debt purchaser had been reckless (maybe deliberate) in continuing with proceedings for the sake of it and then suddenly discontinuing before trial thus falling within the scope of malicious prosecution.

Personally, I think the debt purchasing industry is likely to be most affected by this and I suspect they may have to change their ways. Debt purchasers who obtain judgment against a person (particularly at their old address) resulting in a CCJ for someone only to discontinue the case (for one reason or another) after it being setting aside could land themselves in trouble if claims for malicious prosecution are brought. This is a potential deterrent against those who think its okay to issue proceedings if they do not have the requisite knowledge or basis for bringing a claim.

We also need to note that the claim for malicious prosecution will be permitted to go to trial and so the result of that is likely to be found in favour of Willers given that it was accepted the criteria was met. Perhaps the High Court will give us some indication of the necessary ingredients and how one can satisfy the criteria for a claim to be successful.

P.s another example of where malicious prosecution could be brought is those defamation claims brought by Kellie's Veggies if any future claims were brought either as a separate claim or counterclaim.

Nice, Rob - thanks for your detailed but concise explanation of this law and the remedy itself, its pros and cons.

[wales01man]

Re: Malicious Prosecutions - Discussion

If this was successful and the OP won the case it would open the flood gates for everyone who has won a similar case to claim costs not what the Solicitors and DCAs want although it might if we are lucky force a rule change where a claim must contain absolute proof a debt is owed not SB and its the correct person being taken to court

[charitynjw]

Re: Malicious Prosecutions - Discussion

A more usual scenario, one that we've seen countless times is:

Court claim issued by debt purchaser (On very sparse evidence, as the PoC clearly shows).
Defended (CCA, CPR requests, SB etc)
Claimant fails to produce documentation.
Mediation not possible, defence submitted to court,
Claimant doesn't respond.
Case stayed.

Often the advice given is to invite the Claimant to withdraw, otherwise strikeout app.

If they do withdraw, would that leave them open to an MP claim?

[R0b]

Re: Malicious Prosecutions - Discussion

@wales01man Another argument raised by Lord Sumption, in fact he concluded about 12 reasons why malicious prosecution should not be extended to civil proceedings and the floodgates argument being one of them. I see no real difference between malicious prosecution and an abuse of process other than the fact the defendant has a right to claim damages rather than just a striking out of the case and potential costs awarded in the defendant's favour.

The quote I have posted recently from Justice Cooke in Nomura v Granada quite rightly explains that if a person or business does not have the requisite knowledge or does not bother to make initial inquiries as to the merits of the case and whether there is in fact a claim to be made, then that person or business does not have a right to bring a claim at all and is deemed an abuse of process. This quote could be extended now to a claim for malicious prosecution and for the defendant to obtain damages. If the debt purchasers want to take a risk and issue in bulk as they normally do, then they have to face the consequences of doing so if they get it wrong.

One thing to note is the question of suffering damage or injury. In the UKSC case of Willer v Gubay as I have read, Willers did not appear to suffer any reputational damage but based the claim on being a one which was malicious in that the leisure company knew or ought to have known that Willers carried out actions in accordance with instructions.

Although in the Privy Council case of Crawford Adjusters v Sagicor, Mr Paterson had suffered reputational damage and was struggling to attract employment as a result of the claim being made. Both cases had in common the fact that the claims discontinued at some point.

It will be interesting to see whether the courts stipulate that injury or damage must have occurred or whether the bringing of proceedings and then discontinuance and/or successful defence is enough for malicious prosecution. From looking at the UKSC decision and Crawford Adjusters, it would appear that the mere bringing of proceedings if there is no reasonable belief or grounds for doing so is enough to satisfy the test.

I'm sure over the next 5 years or so we will probably see developments in this area, possibly those in the county courts where claims are being made out of spite and are considered vexatious or in the world of debt, creditors who fail to consider the merits of the case and continue to cause damage to a debtors credit report without having a basis for a claim other than an account number and when the debtor failed to pay.

@charitynjw, that is a possibility yes because you could argue that at the time of proceedings being brought they had no evidence or grounds to successful obtain judgment or bring a case. The sparse information on the POC and lack of disclosure would indicate this.

[charitynjw]

Re: Malicious Prosecutions - Discussion

While you're in the chair, [MENTION=71570]R0b[/MENTION]

A real live scenario, not hypothetical.

Council tax liability.

Homeowner (H) qualifies (& did so at all material times) for 25% reduction (Disability)

Council (LA) purports to have sent a questionnaire to check the 'current' status. H didn't receive it. (& can reasonably prove it)

LA subsequently cancels the reduction without any notification to H, & backdates the cancellation to the date on the questionnaire. (Approx 6 months).

LA then chases H for shortfall. H protests.

LA ignores protest & lays complaint to Mags Court.

H attends court, but is prevented from seeing Magistrate (Basically, the proceedings are run by LA employees. They actually said "No, you're not allowed to see Magistrate!"...... I was witness to it).

So now there is a Liability Order plus the threat of bailiffs.

Although there is clear evidence to show LA was unreasonable (they have a file on H's household, + they can easily check with DWP re disability status), they proceeded with the case to try to enrich themselves by using bully-boy methods.

The problem here (as I see it) is that MP fails on point 2 of your post......H has been found guilty at the k̶a̶n̶g̶a̶r̶o̶o̶ Magistrate's court.

Is it possible MP could apply?

[Openlaw15]

Re: Malicious Prosecutions - Discussion

For everyone's benefit, a brief summary of the claim in the case is set out below.

Summary of Case before the Supreme Court
Mr Gubay was an owner of a leisure company (now deceased) and Mr Willers was a director before being dismissed in or around 2009. The Leisure company brought proceedings against Willers for breach of contract and so Willers issued an indemnity from Gubay claiming to have acted under instructions.

A few weeks before trial, the Leisure company discontinued the claim against Willers and so Willers decided to bring a claim for malicious prosecution. It was already accepted that the leisure company satisfied the criteria of malicious prosecution but the question was whether or not malicious prosecution was extended to civil proceedings.


So what are the ingredients to bring a malicious prosecution claim?
It is probably helpful to understand the requirements to bring a successful claim in a criminal context:

1. There is criminal proceedings brought against the defendant
2. the prosecution determined in favour of the defendant
3. it was without reason and probable cause
4. it was malicious

Now you could easily transfer that into a civil context, points 1 and 2 are self explanatory so focus is on the latter 2.

Without reason and probable cause
'probable cause' isn't really a british definition and that is widely used over the in the USA, but for ease i'm going to refer to 'probable cause' as reasonable belief as we all know what that means in the English legal system. @Openlaw15's argument below is exactly the sort of argument made out in the Supreme Court case.



The answer to that is reasonable belief, and if you reasonably believe that you have a genuine claim and are using the court's process to obtain justice then there will be no claim for malicious prosecution. This could be by way of evidence provided to the court which backs up your claim, even if you eventually lose the case. If the other side wishes to argue the claim is being brought maliciously then the burden of proof rests with the defendant to prove that the claimant's claim was groundless and had no good reason to bring a claim.

The bringing of proceedings was malicious
As the Supreme Court pointed out, there has been over 400 years of legal meanings of malice each of which has been refined over the years. I'm not going to cite every case law or meaning to that because the post would go on forever however, my interpretation of malice in a civil context is the improper motive of the claimant. What is the meaning of improper motive? Well this is where it could overlap with the abuse of process argument (which I might add is entirely a separate ground and is distinct from malicious prosecution) in that the claimant is using the court system which was not bona fide and instead for example, as leverage to compel the other side into paying a sum of money which it does not owe. Malicious prosecution of course goes against the well known basis that a claimant does not owe a duty of care in civil proceedings (one of the arguments raised by Sumption I believe who dissented) but nevertheless, the Court decided that it would be unjust for someone to have proceedings brought against them as a result of malicious prosecution and have no right to compensation. It has also been held that knowledge or recklessness will be virtually conclusive as malice (Kaye v Robertson [1990] EWCA Civ 21).

Overall, I do agree with OL that the bar for malicious prosecution is high and the burden of proof is on the defendant to show that not only was the bringing of the claim without reasonable belief but also malicious. However, this burden I think, could easily be overcome in certain industries and I will use the debt purchasing industry as a prime example. We all know that debt purchasers issue claims in bulk (probably) without taking any consideration as to the merits of the case. Therefore statute barred claims and claims with no evidence will be included in this bulk issue of proceedings. The debt purchasers will put on pressure for the defendant to pay up or have the thread of a CCJ against the defendant which will cause extensive damage to them for the following 6 years in terms of credit, mortgage etc.

There have also been many claims by debt purchasers on this forum that have indicated that defendant's have made so called one-off payments that would bring the claim within the limitation period. Now I don't want to accuse any business of fabricating evidence but when a defendant hasn't made a payment for a number of years and then suddenly a nominal amount is paid in one month but not the following months sounds very shifty.

Luckily, in the thread that brought this discussion about, the OP had proof that no payment had been made by him on the date that the debt purchaser had suggested. As I understood it to be, despite telling them this, they continued with proceedings and then as soon as the defence had been submitted or after mediation, they suddenly discontinued the case. As I said in the post, if there was a genuine claim and they genuinely believe that the payment was made why did they not pursue it? The fact that the decided not to verify or ask the OP proof which could have ended proceedings earlier, they chose to ignore that and you could potentially argue that the debt purchaser had been reckless (maybe deliberate) in continuing with proceedings for the sake of it and then suddenly discontinuing before trial thus falling within the scope of malicious prosecution.

Personally, I think the debt purchasing industry is likely to be most affected by this and I suspect they may have to change their ways. Debt purchasers who obtain judgment against a person (particularly at their old address) resulting in a CCJ for someone only to discontinue the case (for one reason or another) after it being setting aside could land themselves in trouble if claims for malicious prosecution are brought. This is a potential deterrent against those who think its okay to issue proceedings if they do not have the requisite knowledge or basis for bringing a claim.

We also need to note that the claim for malicious prosecution will be permitted to go to trial and so the result of that is likely to be found in favour of Willers given that it was accepted the criteria was met. Perhaps the High Court will give us some indication of the necessary ingredients and how one can satisfy the criteria for a claim to be successful.

P.s another example of where malicious prosecution could be brought is those defamation claims brought by Kellie's Veggies where there are future claims brought either as a separate claim or counterclaim.

The answer to that is reasonable belief, and if you reasonably believe that you have a genuine claim and are using the court's process to obtain justice then there will be no claim for malicious prosecution. This could be by way of evidence provided to the court which backs up your claim, even if you eventually lose the case. If the other side wishes to argue the claim is being brought maliciously then the burden of proof rests with the defendant to prove that the claimant's claim was groundless and had no good reason to bring a claim."

Reasonable belief is the criminal standard normally, ie what the defendant honestly believed. Reasonable belief is therefore very subjective as one person's reasonability differs from the normal person's view of reasonability (the objective standard). Mass murderers thinks it ok to kill people as it makes them happy. Someone else would say, I reasonably believed (reasonable belief) that the civil prosecution was justified even if it wasn't to the 'reasonable person' (objective test). It is too dangerous to apply a criminal standard which is meant to be a constitutional defence against loss of liberty, or in the case of the USA, to avoid the death penalty, to a civil context. Tort has an objective standard; criminal law has a subjective standard. The law is simply dangerous in my view and easily exploitable.

[R0b]

Re: Malicious Prosecutions - Discussion

While you're in the chair, @R0b

A real live scenario, not hypothetical.

Council tax liability.

Homeowner (H) qualifies (& did so at all material times) for 25% reduction (Disability)

Council (LA) purports to have sent a questionnaire to check the 'current' status. H didn't receive it. (& can reasonably prove it)

LA subsequently cancels the reduction without any notification to H, & backdates the cancellation to the date on the questionnaire. (Approx 6 months).

LA then chases H for shortfall. H protests.

LA ignores protest & lays complaint to Mags Court.

H attends court, but is prevented from seeing Magistrate (Basically, the proceedings are run by LA employees. They actually said "No, you're not allowed to see Magistrate!"...... I was witness to it).

So now there is a Liability Order plus the threat of bailiffs.

Although there is clear evidence to show LA was unreasonable (they have a file on H's household, + they can easily check with DWP re disability status), they proceeded with the case to try to enrich themselves by using bully-boy methods.

The problem here (as I see it) is that MP fails on point 2 of your post......H has been found guilty at the k̶a̶n̶g̶a̶r̶o̶o̶ Magistrate's court.

Is it possible MP could apply?

Don't you get a summons to attend court for a Liability Order? I suppose the answer to that is yes but I guess it depends on what happened during the period of H protesting LA and whether H had strong grounds to argue that no Liability Order should have taken place and that despite protesting, the LA ignored as you say. If that's the case and the LA deliberately ignored this and chose to pursue through the courts then I think there would be grounds yes.

Equally, there could be a an argument for misfeasance in a public office on part of the LA in so far as the improper exercise of power which is done deliberately to injure the person, failing to correspond and address H's protests but also a right (is it a right? might need to check as I don't know) to attend the Magistrates' Court for the summons of a Liability Order thus preventing H to put his side of the story.

In terms of next steps I am no expert on council tax so I can't comment but it seems you can appeal the decision but could be expensive and long. The free alternative is the Valuation Tribunal (https://www.valuationtribunal.gov.uk/) although it doesn't say whether they will accept applications once an Order has been given.

If you can't go down that route then either appeal, or pay up and then reclaim back through civil process by the two arguments above. But there would have to be solid grounds to show that the LA's actions was improper and had they considered H's protests they wouldn't have been able to apply for a Liability Order.

Whilst point 2 I mentioned refers to a criminal context, there's nothing stopping H from bringing a civil claim under the appropriate heads of claim. Misfeasance in a public office is a civil claim for example which you might wish to combine with MP if it is worth pursuing.

@Openlaw15, yes you are right civil claims generally require an objective standard but in some cases they may not. For example, where a claimant or defendant genuinely believes that have a solid claim/defence which would be capable of being successful on a summary judgment application, that is acceptable grounds for refusing to consider mediation. So the objective standard isn't always used in civil claims, here's a useful quote I found from LJ Scrutton in Greers Ltd v Pearman and Cordor Ltd 1922 regarding malice in a civil context which appears to indicate subjective intention not objective:

Honest belief in an unfounded claim is not malice; but the nature of the unfounded claim may be evidence that there was not an honest belief in it. It may be so unfounded that the particular fact that it is put forward may be evidence that it is not honestly believed.

[charitynjw]

Re: Malicious Prosecutions - Discussion

[MENTION=71570]R0b[/MENTION]

So what are the ingredients to bring a malicious prosecution claim?
It is probably helpful to understand the requirements to bring a successful claim in a criminal context:

1. There is criminal proceedings brought against the defendant
2. the prosecution determined in favour of the defendant
3. it was without reason and probable cause
4. it was malicious

What about #2 though?
Technically the Claimant (prosecution?) won.

& regarding the 'right' to see a Magistrate.
Again technically, you are 'summonsed' to appear before a Magistrate, but the whole shebang is conducted in the waiting area outside of the actual courtrooms.
By council employees.
They do not allow you access to the Magistrates.
The courtroom is rented by the council at the rate of £3 per person on the Liability Order list....which usually has hundreds of names on it. (I asked......the council bod wouldn't give an exact figure, but admitted 'high hundreds').
Most don't bother turning up......in fact, you are dissuaded from doing so in the FAQs supplied with the summons,
The Liability Order imposes a penalty of £75 per person.
So £72/person to the council X hundreds of people.......not a bad afternoon's work.
& obviously no bias or conflict of interests!

[R0b]

Re: Malicious Prosecutions - Discussion

So you are summonsed to court but not before a magistrate? Doesn't a magistrate have to ratify the LO then? Surely if you are summonsed to appear before a magistrate then you have a right to be heard not by a council employee who would clearly be biased? The purpose of being summonsed is to determine whether an LO would be granted?

Because a LO is a criminal offence albeit no criminal record (I think?), it might be that you have to go down the criminal route for MP rather than a civil route (although misfeasance is a civil option) e.g. appeal successful appeal then bringing a claim for MP. But does the civil court have jurisdiction to hear a claim which was initially instigated in a criminal court? Possibly since you have the tort of misfeasance available meaning you can bring a claim against the police or LA for unlawful actions so I couldn't see why there would be no reason to bring a claim for MP in that repsect.

If MP was brought in a civil claim I think you must show that proceedings were brought against the defendant (arguing that it is not limited to just civil claims but also any criminal proceedings), that it was malicious and without cause and done so to cause damage/harm/loss to the defendant. Based on the UKSC decision, I don't actually think you have to successfully defend the claim before bringing a claim for MP unlike in a criminal matter.

This is where I would combine both claims for misfeasance and MP so even if the MP fails, there should be scope for an argument of misfeasance. In misfeasance claims, exemplary damages are available or at least recover the amount of sums paid to the council / bailiffs.

I'm just throwing a few things out there at the moment as I've not given it a great deal of thought but others might have different suggestions.

[Crazy council]

Re: Malicious Prosecutions - Discussion

Hi @charitynjw

The legal side of the council liability order debarke goes like this

151 officer ( head of finance ) is the officer legally responsible to the public ( local gov finance act ) , he can delegate this legal responsibility to the council court officer,

So,

1. court officer enters court buildinmg, passes large pack of Liability claims to the court clerk.
2 The court officer swears to the clerk, that all accounts in that pack, are accurate, all legal frameworks and accountancy frameworks have been followed, , legal and financially appropriate ( this is how the lie and include false accounts ) .
3. This gets around the requirement for the judge to look through every liability order

So, the above steps put trust in the court officer, and takes responsibility away from the clear and judge/magistrate

Then, as most people have learnt, whatever the circumstances at this point, your getting a liability order, whither you owe it, itsa paid, you have never lived in thye property. You get some T*+t at the council say just turn up at court

At my council, they have been hiding 4000 extra liability orders this way

This is all done to falsly inflate the collection rates, as there accounting systems and markers, counted any account on a LO, with a agent, to be successfully, ( or not owed/outstanding ) , regardless of it its gets paid, or withdrawn

[charitynjw]

Re: Malicious Prosecutions - Discussion

@R0b

Crazy council has highlighted the 'scam' I reckon..........They call that justice?

@Crazy council

So that was the bod sitting in the furthest corner of the waiting room.......away from all the 'action'........Mr Council Court Officer.
The council minions (who were dealing with members of the public) went over to him every so often (as they did when I asked to see the Magistrate because they (council) wouldn't listen to reason).
He sat there with a face like a wet weekend, would not engage directly with me, just shook his head & issued his instructions to 2 young ladies (they at least looked suitably shamefaced, but I guess had to follow orders).
I have complained to the 151 Officer about the whole unfair process of this particular case, & asked him to keep the 'Dogs of War' (bailiffs) on a leash for the time being.
But we digress from the thread topic............

[Crazy council]

Re: Malicious Prosecutions - Discussion

The reason why they wont back down at court is usually the timing for publishing to audit.

every 13 weeks ( starts april ), they have to publish a number of account markers ( used to be called BVPI ), the ones for CT is used for a rate called successful collection rates. Although the rates called that, what it really is, is an accuracy rate to mesure bills sent out, to bills paid, not just the collection. I have a really good write up i did for this [MENTION=5553]charitynjw[/MENTION] that explains the figures back to basics, i will just have to remove some stuff from it because i biased it on my fraudulent council operation.