Iii.—: Malicious Prosecution and Abuse of Process.

Malicious prosecution. We have here one of the few cases in which proof of evil motive is required to complete an actionable wrong. “In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause; and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice”. And the plaintiff’s case fails if his proof fails at any one of these points. So the law has been defined by the Court of Appeal and approved by the House of Lords. It seems needless for the purposes of this work to add illustrations from earlier authorities.

It is no excuse for the defendant that he instituted the prosecution under the order of a Court, if the Court was moved by the defendant’s false evidence (though not at his request) to give that order, and if the proceedings in the prosecution involved the repetition of the same falsehood. For otherwise the defendant would be allowed to take advantage of his own fraud upon the Court which ordered the prosecution.

As in the case of deceit, and for similar reasons, it has been doubted whether an action for malicious prosecution will lie against a corporation. It seems, on principle, that such an action will lie if the wrongful act was done by a servant of the corporation in the course of his employment and in the company’s supposed interest, and it has been so held; but there are dicta to the contrary, and in particular a recent emphatic opinion of Lord Bramwell’s, which, however, as pointed out by some of his colleagues at the time, was extra-judicial.

Malicious civil proceedings. Generally speaking, it is not an actionable wrong to institute civil proceedings without reasonable and probable cause, even if malice be proved. For in contemplation of law the defendant who is unreasonably sued is sufficiently indemnified by a judgment in his favour which gives him his costs against the plaintiff. And special damage beyond the expense to which he has been put cannot well be so connected with the suit as a natural and probable consequence that the unrighteous plaintiff, on the ordinary principles of liability for indirect consequences, will be answerable for them. “In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution”.

But there are proceedings which, though civil, are not ordinary actions, and fall within the reason of the law which allows an action to lie for the malicious prosecution of a criminal charge. That reason is that prosecution on a charge “involving either scandal to reputation, or the possible loss of liberty to the person”, necessarily and manifestly imports damage. Now the commencement of proceedings in bankruptcy against a trader, or the analogous process of a petition to wind up a company, is in itself a blow struck at the credit of the person or company whose affairs are thus brought in question. Therefore such a proceeding, if instituted without reasonable and probable cause and with malice, is an actionable wrong. Other similar exceptional cases were possible so long as there were forms of civil process commencing with personal attachment; but such procedure has not now any place in our system; and the rule that in an ordinary way a fresh action does not lie for suing a civil action without cause has been settled and accepted for a much longer time. In common law jurisdictions where a suit can be commenced by arrest of the defendant or attachment of his property, the old authorities and distinctions may still be material. The principles are the same as in actions for malicious prosecution, mutatis mutandis: thus an action for maliciously procuring the plaintiff to be adjudicated a bankrupt will not lie unless and until the adjudication has been set aside.

Probably an action will lie for bringing and prosecuting an action in the name of a third person maliciously (which must mean from ill-will to the defendant in the action, and without an honest belief that the proceedings are or will be authorized by the nominal plaintiff), and without reasonable or probable cause, whereby the party against whom that action is brought sustains damage; but certainly such an action does not lie without actual damage.

The explanation of malice as “improper and indirect motive” appears to have been introduced by the judges of the King’s Bench between sixty and seventy years ago. But “motive” is perhaps not a much clearer term. “A wish to injure the party rather than to vindicate the law” would be more intelligible.