The tort of malicious prosecution of civil proceedings: a critique and a proposal

Abstract

AbstractLitigation is a tactical business. The recognition of the tort of malicious prosecution of civil proceedings in Willers v Joyce in 2016, by the barest of majorities, adds to the tactical intrigue, for it is now feasible that failed civil proceedings could be swiftly followed by a counter-suit for malicious prosecution against the original unsuccessful claimant. The tort requires proof of ‘malice’. As a concept, malice may have a 400-year history, but insofar as the new tort is concerned, it has proven to be opaque. In this paper, a critical evaluation of the tort since the Supreme Court gave it the ‘green light’ in Willers is undertaken. As a cause of action, it has been sparsely used, and beset with difficulties and unforeseen consequences. Whilst tort law, as the rubric of civil wrongs, must remain ‘on the move’, it is important that judicial reform achieves desirable and useful outcomes. It is argued in the paper that the tort recognised by Willers has not met that objective to date. However, a detailed law reform study of this and other related torts, leading to a statutory tort of ‘abuse of litigious processes’, would serve to bring order to the present disarray.