1st December 2016
The Supreme Court has created a very rare thing: a new civil tort in the law of England and Wales. Gwendoline Davies explains why Willers v Joyce could be of real interest to commercial clients.
The recent case of Willers v Joyce  has broadened the long-established boundaries of the tort of malicious prosecution. Previously available only in relation to criminal claims, this case now offers a brand new cause of action for a defendant who has suffered as a result of the malicious prosecution of civil proceedings against it, for which there was no reasonable and probable cause.
This case, which leapfrogged directly from the High Court to the Supreme Court because of its significance, provides a detailed analysis of policy and case law dating back to the 17th century, before handing down a binding decision and creating a brand new law, to conclude what has been a three-hundred year old debate.
Prior to the decision in Willers, real uncertainty surrounded the question of whether the ability to sue a person who ‘maliciously’ prosecuted civil proceedings against another person, because of conflicting case law at the highest levels.
In Gregory v Portsmouth City Council  the House of Lords expressed the view that the tort of malicious prosecution should only apply to criminal proceedings. Notwithstanding this, the Privy Council in Crawford Adjusters & Ors v Sagicor General Insurance (Cayman) Ltd & Anor  held that the tort should be available in relation to civil proceedings on the basis that any reluctance to extend the tort of malicious prosecution to civil proceedings is undermined when no other tort is available to provide a remedy and redress for the claimant who has effectively been subjected to an harassing suit.
Mr Willers was a director of a leisure company, Langstone, which Mr Gubay allegedly controlled. Mr Willers was first dismissed as director and then subsequently sued by Langstone for alleged breach of contractual and fiduciary duties. It was Mr Willers’ case that the claim brought against him by Langstone was part of a campaign by Mr Gubay to do him harm and the Supreme Court declared it “unnecessary” to set out the details of the claim as they include “all the necessary ingredients for a claim of malicious prosecution”. Mr Willers’ claim was struck out by the High Court as disclosing no cause of action known to English law, but with permission granted for the case to leapfrog to the Supreme Court on the question whether Mr Willers could, in fact, bring a claim for malicious prosecution in relation to civil proceedings.
Despite the “obvious and compelling” appeal to justice in extending the tort of malicious prosecution, Lord Toulson examined the countervailing factors and, from a practical point of view, explored concerns that extending malicious prosecution could:
Ultimately, however, whilst a minority of four Judges agreed with the decision in Gregory, a slim majority of five Judges were persuaded by the reasoning in Crawford that a claimant who appeared to have suffered wrong should have a just remedy available to redress their suffering. Lord Toulson, giving the leading opinion for the majority, noted that it seems “instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not to be entitled to compensation for the injury intentionally caused by the person responsible for instigating it.”
Accordingly, Mr Willers was entitled to bring a claim against Mr Gubay for malicious prosecution in relation to civil proceedings and the matter would be allowed to proceed to trial.
A claim in malicious prosecution can be brought in relation to civil proceedings between private individuals. This decision therefore provides defendants with an important safeguard against claims motivated by malice and brought without reasonable and probable cause. Willers should hopefully deter claimants from using the civil justice system to pursue groundless and malicious claims and should therefore be a welcome development for commercial clients, in particular, who can often find themselves personally the target of unmerited and unmeritorious claims.
The decision does, however, leave a number of questions unanswered, for example: does the tort extend to the making of malicious applications made in the course of proceedings? Does malicious prosecution extend to malicious allegations in proceedings which otherwise would not be considered malicious? What sorts of damages might be contemplated for malicious pursuit of a prior civil action and how would these be calculated? Further case law is to be expected in this interesting and important area. Walker Morris will monitor and report on future key developments.
  UKSC 43
  1 AC 419
  UKPC 17