England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE TUDOR EVANS)

		Royal Courts of Justice Strand London W2A 2LL
		5th November 1997

1. LORD JUSTICE SIMON BROWN: What is the scope of the common law tort of malicious prosecution? In particular, can such an action arise out of disciplinary proceedings instituted by a Local Authority against one of its councillors? That is the question raised by this appeal, an appeal against the order of Tudor Evans J on 27th May 1993 holding that no such action lies and in the result dismissing the plaintiff's appeal against the order of a district judge on 15th October 1992 striking out his claim against the respondent City Council.
2. The proceedings hitherto have been considered under RSC Order 18 rule 19, Tudor Evans J holding that it was plain and obvious that no sustainable claim arises here but nevertheless granting leave to appeal to this Court. We for our part have thought it preferable to treat the issue as one arising for decision under Order 33 rule 3 and both parties before us agreed to that course.
3. The relevant facts can be stated really very shortly; anyone interested in their fuller exposition is referred to Brooke J's judgment in R v Portsmouth City Council ex parte Gregory and Mos (1990) 2 Administrative Law Reports 681 when the Divisional Court (Mann LJ and Brooke J) quashed the findings made against the appellant in the disciplinary proceedings.
4. In 1983 the appellant was elected a Conservative member of the Portsmouth City Council. In 1988 the Administrative Sub-Committee (the ASC) of the Authority's Policy and Resources Committee investigated allegations that the appellant, amongst other councillors, had acted in breach of the National Code of Local Government Conduct which had been adopted by the respondents. The allegation was that the appellant and two other councillors had abused their positions as councillors by using inside knowledge to buy property cheaply and then to sell it at a profit. The ASC found some of the allegations to be proved and recommended that the appellant be removed from the various committees of which he was a member. There was then a meeting at which the respondents appointed a special committee to approve, reject, vary or amend the recommendations of the ASC. The special committee heard evidence. On 30th December 1988 it found a number of breaches of the Code proved and ordered that the appellant be removed from all his council offices and the committees of which he was a member.
5. Upon the application for judicial review the Divisional Court held that the ASC was acting ultra vires when it made its findings and recommendations and that the proceedings before the Special Committee were vitiated from the outset because the Committee was convened on the premise that the recommendations of the ASC were lawful whereas they were not. It was further held that the membership of the special committee was such that a reasonable and fair minded person would be bound to have had a reasonable suspicion that a "fair trial" was not possible so long as one particular councillor (who had already expressed the view that "of course [Mr Gregory] is guilty") remained a member. Accordingly the decisions were quashed. Although, following the Divisional Court's judgment, the respondents announced their intention to institute the same proceedings before another tribunal, in July 1991 they changed their minds and decided not to.
6. In May 1990, I should perhaps note, the appellant was convicted at the Portsmouth Crown Court on two counts involving dishonesty for which he was sentenced to three months imprisonment suspended for two years concurrent on each count. Those offences were in connection with the over-claiming of expenses as a councillor, not offences related in any way to the allegations which had founded the disciplinary proceedings earlier brought against him by the respondents.
7. The appellant's claim in this action is that those disciplinary proceedings were brought maliciously and without reasonable and proper cause and that he thereby suffered a grave loss of reputation as well as distress. He also claims special damages of £2,1500 to compensate him for the costs and expenses incurred in defending himself against the allegations.
8. Assuming, as is pleaded and therefore as for present purposes we are bound to assume, that the allegations made against the appellant were indeed made maliciously and that "there was no or no sufficient evidence to justify the bringing of the proceedings", do these facts give rise to a cause of action in malicious prosecution? That is the question for determination on this appeal.
9. The only types of proceedings which hitherto have been clearly established on the authorities to ground claims for malicious prosecution are first, most but not all criminal proceedings, and second, civil insolvency proceedings i.e. the malicious presentation of petitions whether for winding up or bankruptcy. The appellant submits to us, however, that there can be no basis in logic or principle for restricting the tort so narrowly as this and perhaps some support for his argument is to be found in Salmond & Heuston on the Law of Torts, 21st edition at page 392:

"Will an action lie at the suit of a solicitor whom the defendant has maliciously endeavoured to have struck off the roll? If malicious proceedings in bankruptcy are, as we have seen, a good cause of action, there seems no reason founded on history or public policy why a similar conclusion should not be drawn with respect to other civil proceedings. Again, there seems no reason why an action should not lie for the institution of unfounded and malicious proceedings before a court-martial, or some administrative or domestic tribunal. The adverse decision of such a body may cause serious damage to the reputation or livelihood of the party accused."

10. A contrary opinion, however, was expressed by this court (although the point was not decided) in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1QB 391 at 471:

"Although we have not heard full argument on this point, we have great doubt whether any general tort of maliciously instituting civil proceedings exists. The courts have countenanced claims by a plaintiff complaining of a malicious and unjustified arrest or of malicious and unjustified institution of bankruptcy or liquidation proceedings, but the cases have not (to our knowledge) gone beyond these limited categories. There are dicta suggesting that in the case of an ordinary civil action, however maliciously and unjustifiably brought, the successful defendant has no cause of action in tort ..."

11. Clearly the point is one of some difficulty and it is necessary to consider the essential ingredients and origins of this tort in seeking now to determine its true scope.
12. Lord Keith in Martin v Watson [1996] 1 AC 74 noted at page 80:

"It is common ground that the ingredients of the tort of malicious prosecution are correctly stated in Clerk & Lindsell on Torts [then the 16th edition, now the 17th edition, para 15-05]:

`In action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; and thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious.'"

13. (Martin v Watson was concerned only with criminal proceedings; it was simply not material there to note that the tort on any view extended also to civil insolvency proceedings.)
14. It has always been recognised too that the action for malicious prosecution, being an action on the case, can only succeed upon proof of certain specific types of damage. As Diplock J observed in Berry v British Transport Commission [1961] 1 QB 149 at page 160, the kind of damage necessary to found the action was finally settled by Holt CJ in Savile v Roberts (1699) 1 Ld Raym. 374, and that case provides a convenient and, indeed, conventional starting point for consideration of the origins of the tort:

"There are three sorts of damages, any of which would be sufficient ground to support this action. 1. The damage to a man's fame, as if the matter whereof he is accused be scandalous ... [`scandalous' there being used as synonymous with `slanderous'] ... 2. The second sort of damages, which would support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty ... 3. The third sort of damages, which will support such an action, is damage to a man's property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused."

15. Cleasby, B., in Johnson v Emerson (1871) Law Rep. 6 Ex. 329 extended the tort (or perhaps one should say, recognised that the tort extended) to the malicious presentation of a bankruptcy petition. I can go directly, however, to the decision of this court in Quartz Hill Consolidated Gold Mining Company v Eyre (1883) 11 QBD 674 in which it was extended also to winding-up proceedings. The reason why the tort was held to extend to both these types of proceedings was explained by Brett MR at pages 684-685:

"It seems to me that an action can be maintained for maliciously procuring an adjudication under the Bankruptcy Act 1869, because by the petition, which is the first process, the credit of the person against whom it is presented is injured before he can shew that the accusation made against him is false; he is injured in his fair fame, even although he does not suffer a pecuniary loss ... he is openly charged with insolvency before he can defend himself. It is not like an action charging a merchant with fraud, where the evil done by bringing the action is remedied at the same time that the mischief is published, namely, at the trial.

The present case, therefore, is reduced to this question, namely, is a petition to wind up a company more like an action charging fraud or more like a bankruptcy petition? In my opinion it is more like a bankruptcy petition, and the very touchstone of this point is that the petition to wind-up is by force of law made public before the company can defend itself against the imputations made against it; for the petitioner is bound to publicly advertise the petition seven days before it is to be heard and adjudicated upon ..."

16. Bowen LJ similarly concluded that "the very institution of [insolvency] proceedings" "strike home at a man's credit" and thus give rise to an action for malicious prosecution, but that:

"No mere bringing of an action, although it is brought maliciously and without reasonable or probable cause, will give rise to an action for malicious prosecution. In no action, at all events in none of the ordinary kind, not even in those based on fraud where there are scandalous allegations in the pleadings, is damage to a man's fair fame the necessary and natural consequence of bringing the action."

17. As to the costs incurred in defending a civil action, Bowen CJ said this:

"The bringing of an ordinary action does not as a natural or necessary consequence involve any injury to a man's property, for this reason, that the only costs which the law recognises, and for which it will compensate him, are the costs properly incurred in the action itself. For those the successful defendant will have been already compensated, so far as the law chooses to compensate him. If the judge refuses to give him costs, it is because he does not deserve them: if he deserves them, he will get them in the original action: if he does not deserve them, he ought not to get them in a subsequent action. Therefore the broad cannon is true that in the present day, and according to the 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."

18. A convenient statement of the law as it stood following Quartz Hill Consolidated Gold Mining Co v Eyre is to be found in the judgment of the Privy Council (delivered by Sir John Beaumont) in Mohammed Amin v Jogendra Kumar Bannerjee [1947] AC322 at page 330:

"The foundation of the action [for damages for malicious prosecution] lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt CJ in Savile v Roberts that damages might be claimed in an action under three heads, (1) damage to the person, (2) damage to property, and (3) damage to reputation, and that rule has prevailed ever since. That the word "prosecution" in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance, falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company (Quartz Hill Consolidated Gold Mining Co v Eyre). The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowen LJ in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant's reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. ... but a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage, and in such a case damage to reputation will be presumed."

19. I come next to Berry v British Transport Commission [1961] 1QB 149 (Diplock J), and [1962] 1QB 306 (Court of Appeal), in which two points were decided: first, that a charge of a statutory offence punishable only by fine would not support an action for malicious prosecution unless the charge was such as to injure the "fair fame" (that is, was necessarily and naturally defamatory) of the person charged (which was not the case there, the offence being one of pulling a train communication cord); second, (the Court of Appeal on this point allowing the plaintiff's appeal against Diplock J's judgment at first instance) that although in civil cases it was well established that extra costs incurred in excess of the sum allowed on taxation could not be recovered as damages, the Court was not compelled to extend that rule (based as it is on a somewhat dubious presumption) to criminal proceedings in which an award of costs would not necessarily amount to a complete indemnity for costs properly incurred. Perhaps rather oddly, therefore, a defendant to criminal proceedings can bring an action for malicious prosecution to recover a shortfall in his costs even though his reputation was never at risk; a defendant to civil fraud proceedings, however, cannot complain of loss either to his reputation or to his pocket. As to allegations of civil fraud, it is perhaps optimistic to suppose with Brett MR that "the evil done by bringing the action is remedied at the same time that the mischief is published, namely, at the trial." Nevertheless cases such as Stern v Piper [1997] QB123 go some way towards protecting the defendant's reputation up to the point of trial.
20. Before leaving the authorities I should make one short further reference to Lord Keith's speech in Martin v Watson, where (at page 88) he said:

"The essential feature of malicious prosecution is an abuse of the process of the Court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law. That was held in Roy v Prior (1971) AC 470 in relation to an action for malicious arrest."

21. The question for decision there was whether an action for malicious prosecution lies against a complainant even though he is not technically the prosecutor, and what Lord Keith was addressing in that passage was an argument (which failed) that the immunity afforded in respect of evidence given in court should extend also to the complaint underlying the
22. proceedings.
23. Mr Cavanagh's central argument for the respondents is that the outer limits of this tort are necessarily fixed by reference to the principles respectively of abuse of process and of immunity from suit for anything said in Court. Because, he submits, the concept of abuse of process can apply only to proceedings in a court of law, and because immunity from suit (which, of course, extends beyond merely the absolute privilege which bars defamation proceedings) is lost in such circumstances, the tort of malicious prosecution must be similarly confined. In support of the argument he prays in aid the passages cited above from Mohammed Amin v Jogendra Kumar Bannerjee and Martin v Watson.
24. I am not persuaded that the argument gains much support from the latter case: all that Lord Keith appears to have been saying there was that if by the malicious institution of proceedings you abuse the court's process, you cannot then invoke the immunity which would otherwise attach to your allegations; it does not necessarily follow that the tort can arise only when there is an abuse of the process of a court properly so called.
25. The Privy Council in Bannerjee, however, said in terms that the foundation of the action lies in abuse of process and that "it is designed to discourage the perversion of the machinery of justice for an improper purpose". That does seem to support the respondents' approach and is certainly not easy to reconcile with the appellant's contention that the tort is designed rather to compensate the victim from wrongdoing than to protect the court from abuse of process, persuasive though at first blush such submission appears.
26. I had thought at one stage that the tort could logically be confined to court proceedings by reference to the concept of absolute privilege. Proceedings in criminal and civil courts attract absolute privilege and, unless an action lies for malicious prosecution, the victim is without redress. Where, of course, only qualified privilege attaches to the proceedings, then, if the prosecutor acts maliciously, that malice will in any event found a claim in defamation. Why, one asks, should the tort of malicious prosecution extend to compensate a plaintiff for damage, whether to his "fair fame" or his pocket, for which he could equally be compensated by an action for defamation? Clearly it is no answer to say - although it is the fact in the present case - that legal aid is not available for a claim in defamation and the appellant is too impecunious to fund the action himself. The point, however, collapses when one realises that although the doctrine of absolute privilege originally applied only in recognised courts of justice established as such, it has come to be extended to "tribunals exercising functions equivalent to those of an established court of justice" - see O'Connor v Waldron [1935] AC 76 at 81 applying Royal Aquarium etc Ltd v Parkinson [1892] 1 QB 431. In Addis v Crocker [1961] QB 11, indeed, this court held that absolute privilege applies in the Disciplinary Committee constituted under the Solicitors' Act. If, therefore, the tort of malicious prosecution is to be confined to the present recognised categories only - i.e. most proceedings in the criminal courts and civil insolvency proceedings - there will be other types of proceedings, solicitors' disciplinary proceedings amongst them, in which a person's reputation can be maliciously damaged without redress.
27. Mr Lissack QC submits that that should not be the case and that provided only and always that false and malicious allegations have been made and that the type of damage suffered falls into one of the three categories established in Savile v Roberts, the tort lies. These, he argues, are the determinative considerations, not the forum in which the allegation is considered nor the particular type of proceedings by which it is decided. In support of this submission he prays in aid a passage from McGregor on Damages (15th edition at paragraph 1627):

"The types of proceedings and the types of damage form two sides of the same coin, since it is because these kinds of damage flow from these kinds of legal proceedings that they are made actionable in the first place, and these kinds of damage are then in all cases presumed to flow from these kinds of legal proceedings."

28. Better, he submits, that the tort be defined by reference merely to the touchstones of malice and specific damage than that the line be drawn as narrowly and arbitrarily as the respondents suggest, shutting out all sorts of proceedings which may be just as damaging to the victim as a criminal prosecution and in respect of which an action for defamation may or may not lie. These very proceedings, submits Mr Lissack, illustrate the point. The "necessary and natural consequence" of maliciously accusing this appellant of breaches of the Code did scandal to his reputation which was not fully repaired by his ultimate success on the Divisional Court challenge. That his "fair fame" was assailed was clearly recognised by Brooke J's judgment in ex parte Gregory at p 699:

"... The courts have always been careful to ensure that when a man's reputation is in question proceedings against him are conducted with appropriate recognition of the principles of justice. ... The overwhelming impression given by the history of events ... is that too much emphasis may have been placed on speed and insufficient emphasis may have been placed on fairness, and in the result justice may have suffered."

29. There were here, Mr Lissack submits, all the hallmarks of a criminal prosecution. In particular there were "charges" laid and notified on which the appellant was to be "tried"; counsel opened the allegations and acted as a de facto prosecutor; the proceedings were adversarial in nature and the witnesses were called and cross-examined as if at a criminal trial; the clerk was legally qualified; the hearing was in public and well-publicised; after the adverse determination there was "mitigation", and, following this, the appellant was disciplined in the manner indicated.
30. For good measure, submits Mr Lissack, the respondents' proceedings also bore most of the hallmarks of an "inferior court" as defined by the House of Lords for the purposes of the law of contempt in Attorney General v BBC [1981] AC 303 - all, that is, save for one essential feature, that the Tribunal should be created by the State: on no view, as Mr Lissack readily acknowledges, were the respondent council here acting as a court of law.
31. Ably and persuasively though all these arguments were advanced, I for my part cannot accept them. I acknowledge that there is at best an imperfect logic in confining the tort to the already established categories of proceedings. But to extend its operation as far as would be necessary to encompass this appellant's claim - beyond, that is, the proceedings even of tribunals exercising functions equivalent to those of established courts and to which, therefore, the doctrine of absolute privilege applies - would extend the tort well beyond anything suggested by any of the decided cases in this field. Indeed, not merely do the authorities provide no support for the view that malicious prosecution extends this far, but the language used in many of the judgments suggests an altogether narrower scope. True, as the Privy Council pointed out in Bannerjee, the word "prosecution" in the title of the action is not used in a technical sense. But time and again the cases refer to "setting the law in motion" and to "legal proceedings" (by which is meant apparently proceedings in courts of law). Clerk & Lindsell, albeit in a passage not expressly supported by authority, states at paragraph 15 - 07:

"To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question ..."

32. Although Mr Lissack suggests that the respondents' committees here were "clothed with judicial authority" to decide the allegations brought against this appellant and then to discipline him, I respectfully disagree. These committees were in my judgment clearly discharging no more than an administrative function (albeit under a duty to act fairly) and cannot possibly be regarded as a judicial authority in the sense envisaged by Clerk & Lindsell. Indeed, it seems to me clear that the authorities necessarily envisage the allegations being brought before some tribunal other than the person or body who maliciously initiates them. That, of course, was not the case here and to my mind Mr Lissack never successfully dealt with the difficulty arising from the possibility of the respondents having `acquitted' the appellant of these allegations: the tort is malicious prosecution, not malicious `conviction', yet the real criticism directed against the council here is not that they brought these allegations but rather that they put them before the wrong determining committees who then found them proved.
33. In summary I have reached the conclusion that the tort of malicious prosecution probably does not extend beyond the already established categories of civil and criminal proceedings, and certainly not as far as the proceedings of bodies like these respondents who are not merely not courts of law but are not even tribunals exercising functions equivalent to courts. One can perhaps see a public policy argument for extending the tort to embrace proceedings in the latter, covered as they are by absolute immunity. But I am by no means persuaded even of that, let alone of the desirability of a further extension still to cover this case. The tort has certain curious features (particularly in the civil sphere) even as it presently operates and it may be doubted whether after all these years the courts should react creatively to proposals for its extension in any way whatever.
34. I would accordingly rule that no action in malicious prosecution lies here and I would accordingly dismiss this appeal.
35. I add this postscript. As will be noted, this appeal has taken a very long time to come to a hearing. That is to be regretted. However, it involves no criticism whatever of the appellant's advisers. They, on the contrary, have been acting for some time now solely on a pro bono basis and this Court expresses its indebtedness to them for their great assistance on the appeal.
36. LORD JUSTICE SCHIEMANN: I have had the advantage of reading the judgments of my Lords in draft. They conclude that this Plaintiff's Statement of Claim was rightly struck out. I have the misfortune to have come to the opposite conclusion.
37. The claim which has been struck out as disclosing no cause of action asserts the following:-

1. The Plaintiff was a member of Portsmouth City Council

2. The Council maliciously and without reasonable or probable cause instituted and continued proceedings in the form of a disciplinary hearing into allegations of misconduct as a councillor amounting to breach of the National Code of Local Government Conduct by Councillors. The Particulars of malice allege

1. The Council, although it knew that the ASC did not have the power which permitted it to hear complaints of alleged breaches of the code, continued with the proceedings and obtained orders which were ultra vires;

2. The Council was motivated by political jealousy;

3. In the way that the proceedings were conducted there were a number of intended breaches of natural justice.

3. The ASC resolved that the Plaintiff was in breach of certain provisions of the Code and recommended that he be suspended from

serving on all committees of the council

any office of chairman or vice-chairman of any committees, sub-committees or groups established by the council

representing the council on any outside body

4. The Council set up a special committee with powers to approve the recommendations of the ASC

5. The Special Committee found certain allegations proved and imposed the following penalties on the Plaintiff:-

He was removed from various Committees and subcommittees and from various Housing Associations

He was not to be appointed chairman or vice-chairman of various committees and subcommittees and was not to be appointed a member of the planning services committee.

6. When the Divisional Court quashed the imposition of these penalties the Council publicly announced that they would reinstitute proceedings. Thereafter they decided not to do so.

7. This behaviour was calculated to cause the Plaintiff maximum harm at minimum cost and effort to the Defendant.

8. By reason of the foregoing, the plaintiff's reputation has been harmed, his health has suffered, he has been caused mental anguish, he has been put to expense defending himself, and his job prospects have been damaged.

38. It is right to say that much of the foregoing is denied by the Council. However, this being an application to strike out, we have to assume that the allegations are true. So what is alleged is damage to the plaintiff's health and reputation deliberately and maliciously inflicted by the institution and continuance of disciplinary proceedings.
39. These are the allegations which have been struck out as disclosing no cause of action. In short, the judge held that a man who has maliciously been subjected to such treatment and has suffered such damage has no remedy under our law. He did not expressly hold this. He had only heard argument on the scope of the action for malicious prosecution. He held that

... an action for damages for malicious prosecution will lie only in respect of 'legal proceedings'

40. and then held that what had gone on before the ASC and the Special Committee could not be described as legal proceedings. The Notice of appeal challenges the judge's conclusion that the proceedings before the committees were not 'legal proceedings'. The skeleton argument produced for this court by Mr Lissack QC on behalf of the appellant sought to persuade us, by analogy with the use of the phrase 'legal proceedings' in other contexts, that the proceedings before the committees were 'legal proceedings'. For my part I regard that particular comparative exercise as sterile. The crucial question before this court in the present case is whether, on the facts as pleaded by the plaintiff, he has a right to be compensated by the defendant.
41. In order to discover the answer to that question I start by considering whether there is any English case law which binds us to hold either that the plaintiff is without a legal remedy in such circumstances or that he has a remedy. I understand it to be common ground that there is no such binding precedent either way. We are thus faced with a question to which we must find an answer and on which there is no binding precedent. In those circumstances it is manifestly likely to be helpful to consider potentially persuasive material such as non-binding decisions of courts in this country and in other Common Law jurisdictions^[1] and academic writers. Little or none was produced at the Bar. The material which I cite is the result of reading after we reserved judgment and has therefore not been exposed to the discipline of being the subject of submissions at the Bar.
42. It is right that I should acknowledge straightaway that, absent policy grounds in favour of such a conclusion, I instinctively hesitate before holding that our law provides no remedy to a councillor who is maliciously and without reasonable cause placed before committees of the council and stripped of his offices in circumstances of some publicity.
43. The English Cases
44. Simon Brown L.J. has cited many of these in his judgment. There are undoubtedly dicta of high authority which point against the conclusion that the proceedings before the committees are the type of proceedings in which in time past a remedy has been given under the rubric 'malicious prosecution'. The most recent of these is to be found in the judgment of this court in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc cited by my Lord. The dictum there was founded in part on a passage in the judgment of Brett MR in Quartz Hill Gold Mining Company v Eyre [1883] 11QBD 674 at 684:

"By proceedings in bankruptcy a man's fair fame is injured ............... because he is openly charged with insolvency before he can defend himself. It is not like an action charging a merchant with fraud where the evil done by bringing the action is remedied at the same time that the mischief is published, namely at the trial."

45. I find this difficult to follow particularly in the context of trials which last for more than one day. Brett MR seems to have relied upon the period of 7 days between the advertisement of the petition and its adjudication.

Brett M.R. continued at p 688

"..................... at the present day the bringing of an action ......... although the action is brought falsely and maliciously and without reasonable or probable cause, and whatever may be the allegations contained in the pleadings, will not furnish a ground for subsequent complaint by the person who has been sued, nor support an action on his part for maliciously bringing the first action. To speak broadly ............ whenever a man complains before a court of justice of the false and malicious legal proceedings of another, his complaint, in order to give a good and substantial cause of action, must show that the false and malicious legal proceedings have been accompanied by damage express or implied.

46. He continued at p.689

"In no action, at all events in none of the ordinary kind, not even in those based upon fraud where there are scandalous allegations in the pleadings, is damage to a man's fair fame the necessary and natural consequence of bringing the action. Incidentally matters connected with the action, such as the publication of the proceedings in the action, may do a man an injury; but the bringing of the action is of itself no injury to him. When the action is tried in public, his fair fame will be cleared, if it deserves to be cleared: If the action is not tried, his fair fame cannot be assailed in any way by the bringing of the action. ........................... It is unnecessary to say that there could not be an action of that kind in the past, and it is unnecessary to say that there may not be such an action in the future, although it cannot be found at the present day. .... but although an action does not give rise to an action for malicious prosecution, inasmuch as it does not necessarily or naturally involve damage, there are legal proceedings which do necessarily and naturally involve that damage; and when proceedings of that kind have been taken falsely and maliciously, and without reasonable or probable cause, then, inasmuch as an injury has been done, the Law gives a remedy. Such proceedings are indictments - I do not say every indictment, but I mean all indictments involving either scandal to reputation or the possible loss of liberty to the person, that is, all ordinary indictments for ordinary offences. In its very nature the presentation or prosecution of an indictment involves damage, which cannot be afterwards repaired by the failure of the proceedings, to the fair fame of the person assailed, and for that reason ........................ the Law considers that to present and prosecute an indictment falsely and without reasonable or probable cause, is a foundation for a subsequent action for a malicious prosecution."

47. The present state of the law is rooted in history. The action for malicious prosecution is one of the earlier causes of action. It was originally developed in the context of those accused of crimes. As Diplock J pointed out in his scholarly judgment in Berry v BTC [1961] 1QB 149 at 159.

"The action for malicious prosecution was an action on the case in consimili casu to the action brought by the old writ of conspiracy which lay only when there was a combination between two or more persons maliciously to indict the Plaintiff for treason or felony. The action on the case for malicious prosecution was available against a single Defendant, and could be founded upon any form of legal proceeding, whether civil or criminal, brought maliciously and without any reasonable or probable cause against the Plaintiff by the Defendant. As the action was in case, however, damage was an essential ingredient."

48. My Lord has already cited Amin v Bannerjee. The question which was there before the Board was whether what had been done by the Defendant , under the Indian Penal Code, amounted to the institution of criminal proceedings. The passage quoted by My Lord was in a part of the opinion which sets the scene, as it were, for the decision in the case. The sort of points with which the present case is concerned were not in issue there.^[2]
49. At the time of Savile v Roberts there was no police force, still less a Crown Prosecution Service. It was important that malefactors should be brought to justice and manifestly against the public interest that persons should be discouraged from bringing others to justice. In that context, it is not surprising that the courts were very cautious of giving any extended right to sue for damages for malicious prosecution and hedged the action about with restriction. Hence the limitation to some crimes. Hence the requirement for malice, as opposed to anything less. Hence the requirement of damage of one of the limited kinds set out in Savile v Roberts. Hence the requirement that the plaintiff should have been acquitted, for the courts were no doubt anxious to prevent relitigation of that which had already been concluded against the plaintiff.
50. However, the courts did not limit relief to cases where the accusation maliciously and groundlessly made was of crime. The action was extended into a number of civil fields while retaining various requirements imposed in the criminal context. Whether or no a particular civil field qualified for extension was dependent upon whether or no an action in that field would be able to fulfil requirements designed for use in a different field. This led to distinctions which to modern eyes, or at any event in a modern context, are not conceptually satisfying. For instance, expenditure by the Plaintiff on legal costs is eligible if spent on defending himself against a criminal charge but not if defending himself on a civil charge.^[3]
51. Cases in other jurisdictions
52. So far as my reading has gone, the nearest case to the present is Frank de Laurentis v City of New Haven [1991] 220 Conn. 225; 597 A.2d 807. decided by the Supreme Court of Connecticut consisting of five justices presided over by the Chief Justice. The court handed down a unanimous judgment after a wide citation of authorities. The Plaintiff, former chairman of the New Haven Parking Authority Commission, sued the Defendants after the Mayor first instituted and then abandoned removal proceedings against him. The Mayor had power under the Charter to summon the Plaintiff to appear before him and at a public hearing to show cause why he should not be removed from office. If after a full hearing it was found that the officer in question was corrupt, incompetent or unfaithful to the duties of his office or that the requirements of the public service demanded his removal, the Mayor had power to remove him. The hearing was started with the Plaintiff defended by his Attorney but after the first week was adjourned and then ultimately abandoned. The Plaintiff succeeded in his action and the Defendants appealed to a five-judge court presided over by Peters, CJ. Two of the grounds of appeal are of significance for present purposes. It was argued that judgment on the vexatious suit claim must be rendered for the Defendants because

(a) the removal proceeding was administrative in nature and thus did not constitute a civil action and

(b) the proceedings never terminated in favour of the Plaintiff.

53. The Court said:

Most courts now agree with the Re-statement (Second) of Torts at 680 which permits liability for vexatious "initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other".(My emphasis)

54. The footnote cites a raft of cases in a number of Federal and State jurisdictions in support of that proposition including the administrative termination of a professorship, the dismissal of a police officer by a Town Board, student disciplinary proceedings, and a complaint to the Bar Association that did not lead to initiation of proceedings before a body having power to revoke a licence. The Court held:

"We conclude that de Laurentis was not barred from bringing a vexatious suit action against the Mayor simply because it is based on a proceeding that did not take place in a courtroom. The removal proceedings prescribed by the New Haven City Charter might have resulted in depriving de Laurentis of his position as a Parking Authority Commissioner. ...................... (His interest) is a legally protected interest in the sense that the City Charter restricts the Mayor's right to deprive him of it."

55. The Court then turned to consider the second ground of appeal. It stated:

"Courts have taken three approaches to the "termination" requirement. The first, and most rigid, requires that the action have gone to judgment resulting in a verdict of acquittal, in the criminal context, or no liability in the civil context. The second permits a vexatious suit action even if the underlying action was merely withdrawn so long as the Plaintiff can demonstrate that the withdrawal took place under circumstances creating an inference that the Plaintiff was innocent, in the criminal context, or not liable in the civil context. The third approach while nominally adhering to the "favourable termination" requirement, in the sense that any outcome other than a finding of guilt or liability is favourable to the accused party, permits a malicious prosecution or vexatious suit action whenever the underlying proceeding was abandoned or withdrawn without consideration, that is, withdrawn without either a plea bargain or a settlement favouring the party origination the action."

56. The Court continued:-

"We have never required a Plaintiff in a vexatious suit action to prove a favourable termination either by pointing to an adjudication on the merits in his favour or by showing affirmatively that the circumstances of the termination indicated his innocence or non-liability, so long as the proceeding has terminated without consideration. .................... Instead, we have always viewed the issue of whether the prior outcome was "favourable" to the Plaintiff as relevant to the issue of probable cause. ...................... Two concerns underlie the requirement of "successful termination". The first is the danger of inconsistent judgments if Defendants use a vexatious suit or malicious prosecution action as a means of making a collateral attack on the judgment against them or as a counter-attack to an ongoing proceeding. .......... The second is the unspoken distaste for rewarding a convicted felon or otherwise "guilty" party with damages in the event that the party who instituted the proceedings did not at that time have probable cause to do so. ............ In the case before use, it is undisputed that the Mayor abandoned the termination proceeding without any negotiation with de Laurentis and never re-opened it. Moreover de Laurentis was no longer a Parking Commissioner at the time he filed his revised complaint against the City, having served out his term. He was never found "guilty" of any of the charges against him. We conclude that neither concern underlying the "successful termination" requirement is implicated by permitting de Laurentis to pursue a vexatious suit action against the Defendant."

57. The Supreme Court of Connecticut did not have to, and did not chose to, wrestle with dicta in cases more than a century old. It came to an attractive, and if I may say so respectfully, principled decision following guidance in the Restatement and the practice in other American courts.
58. By contrast, Commonwealth jurisdictions have grappled with the cases starting with those in the seventeenth century. The Supreme Court of Victoria had to consider a vexatious suit case in Little v Law Institute of Victoria [1990] VR 257. It is a useful case in the present context because the judgment considers the history of the action in England and casts doubt on the wisdom of letting distinctions formulated under different social and legal conditions dominate our considerations today. There the successful appellant was a solicitor. He refused to pay a premium for professional indemnity insurance. The Institute obtained an injunction preventing him from practicing. He continued to practice and was committed to prison for contempt. He appealed unsuccessfully against the committal. However he appealed successfully against the imposition of the injunction on the ground that it was ultra vires the relevant local legislation. He then brought an action alleging malicious abuse of civil proceedings. This action was struck out (to use our terminology). He successfully appealed to the Supreme Court. The judgment of the majority was delivered by Kaye and Beach JJ. Their reason for holding that it was wrong to strike out such an action appears from the following prolonged citation.

"It is settled law that no action will lie for malicious abuse of civil proceedings unless the plaintiff has suffered damage of a form within the three heads of damage which were laid down by Holt C.J. in Savile v Roberts... Brett M.R. in the [Quartz hill case] in connection with the Saville v Roberts rule said

"... although civil proceedings are taken falsely and maliciously without reasonable or probable cause, nevertheless no action will lie in respect of them, unless they produce some damage of which the law will take notice"

59. In the following passage Bowen LJ at p.689, reciting from the judgment of Holt CJ in Savile v Roberts, set out the three forms of damage, any one of which would support an action for malicious prosecution.

"1. The damage to a man's fame, as if the matter whereof he is accused be scandalous ......

2. The second sort of damages, which would support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb or liberty, which has always been allowed a good foundation of such an action ...............

3. The third sort of damages, which will support such an action, is damage to a man's property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused, which is the present charge. That a man in such case is put to expenses, is without doubt, which is an injury to his property, and if that injury is done to him maliciously, it is reasonable that he shall have an action to repair himself."

60. The Appellant's allegation that he suffered damage is contained in para. 14 of his statement of claim which reads:

"By reason of the matters aforesaid, the plaintiff has been imprisoned and injured in his credit, character, reputation and the practice of his profession, and has suffered mental and bodily pain and anguish and the plaintiff has thereby suffered loss and damage."

61. Clearly the appellant's claim for damages for mental and bodily pain and anguish suffered by him is not within the categories prescribed by Holt CJ. It is necessary to consider whether the injury to his credit, character and reputation might fall within the first category of damage to fame. Discussing the three categories, Bowen LJ, at pages 689-690 said:

"In no action, at all events in none of the ordinary kind, not even in those based upon fraud where there are scandalous allegations in the pleadings, is damage to a man's fair fame the necessary and natural consequence of bringing the action. Incidentally matters connected with the action, such as the publication of the proceedings in the action, may do a man an injury; but the bringing of the action is of itself no injury to him. When the action is tried in public, his fair fame will be cleared, if it deserves to be cleared: if the action is not tried, his fair fame cannot be assailed in any way by the bringing of the action. Apply the second head of damage, namely, those injuries which are done to the person: the bringing of no action under our present law and under the ordinary rules of procedure will involve as a necessary and natural consequence damage to the person. The third sort of damage, the existence of which will support such an action as this, is damage to a man' property. The same observation applies to this third head of damage. The bringing of an ordinary action does not as a natural or necessary consequence involve any injury to a man's property, for this reason, that the only costs which the Law recognises, and for which it will compensate him, are the costs properly incurred in the action itself."

62. Buckley LJ in Wiffen v Bailey and Romford Urban District Council [1915] 1 KB 600 at p.607, after citing this passage from the judgment of Bowen LJ stated:

"So the exception of civil proceedings, so far as they are excepted, depends, not upon any essential difference between civil and criminal proceedings, but upon the fact that in civil proceedings the poison and the antidote are presented simultaneously. The publicity of the proceedings is accompanied by the refutation of the unfounded charge, if it be unfounded, which was made. If there be no scandal, if there be no danger of loss of life, limb or liberty, if there be no pecuniary damage, the action will not lie."

63. In the past there were two forms of malicious civil proceedings where damages resulting from injury to fame were recognised to be actionable. Thus it was held that malicious presentation of a bankruptcy petition could be injurious to the credit of the person against whom it is presented and therefore actionable where the petition was required by statute to be advertised before adjudicated by the Court: Johnson v Emerson and Sparrow [1871] LR 6 Exch.329, per Kelly CB and Cleasby B. Again the malicious presentation of a petition to wind up a solvent trading company was held in Quartz Hill v Eyre to be actionable because of the statutory requirement to advertise the petition before it was heard and determined."
64. After some citation of antipodean authorities they continue at page 267:-

"No doubt observations made by their Lordships in Quartz Hill v Eyre and in Wiffen v Bailey concerning the consequences resulting from publicity given to civil proceedings commenced maliciously applied to conditions prevailing in society 100 and 75 years ago. However, in our view, it does not follow that at the present time proceedings, tainted with malice and brought without reasonable cause, might not affect adversely the reputation of a defendant or respondent to the proceedings for the reasons stated by their Lordships. In modern society the quick and wide dissemination of publicity relating to litigation, both pending and current, by radio, television and news print might injure the fair fame of an accused person who subsequently was found to be not guilty, or a defendant who later has had judgment entered against him set aside on appeal. At the present time it is rare that the poison of and antidote to malicious proceedings are simultaneous. In addition, it is instructive in this connection to be mindful of the circumstances which gave rise to the rigidity of the rules as to damages formulated in Savile v Roberts which in the following passage of his judgment were referred to by Herring CJ in Soare v Ashley [1955] VLR 438 at p.440:

"The action on the case for malicious prosecution has had a long and interesting history. It began to be used in the mediaeval period to supplement the defects of the statutory writ of conspiracy and then practically superseded it during the same period. (Holdsworth, History of English Law vol. VIII pp 385 et seq.) It was most important (and still is) that the ordinary citizen should assist the forces of law and order to bring offenders to punishment by reporting to them any information he may have about the commission of crimes, and that he should be encouraged to do so. At the same time the laying of groundless charges can do immeasurable harm to honest citizens, however gratifying it may be to the spite of those who bear them ill will. A balance needs to be kept between the two. The action for malicious prosecution was the means provided by the law to redress the balance. It would appear, however, that by the end of the seventeenth century these actions had become exceedingly popular and the danger to the proper administration of the criminal law of allowing them too freely was realized. And so it was that in Savile v Roberts [1698] 1 Ld. Raym.374, in 1699, and in Jones v Givin [1713], Gilb.185, Holt CJ and Parker CJ respectively defined the conditions under which the action on the case for malicious prosecution could be brought".

65. In our opinion there is no longer justification for confining to a bankruptcy petition and an application to wind up a company the remedy for malicious abuse of civil proceedings where the damages claimed is to the plaintiff's reputation. (My emphasis)

The issue of a summons to enjoin a solicitor from practising without a practising certificate might not be expected in all cases to attract publicity by the media. Nevertheless evidence might establish that the service of the summons upon the appellant was an event which became known within Melbourne legal circles. Evidence might further establish that the order of the court restraining the appellant from acting as a solicitor received publicity by the media or professional journals, or became known to members of the legal profession by other means. Similarly, by evidence it might be established whether the committal order received publicity, so that both members of the legal profession and the appellant's clients became aware of the term of imprisonment to which he was sentenced.

Furthermore, while in former times the hearing of an action followed shortly after the issue of the process commencing the proceedings, this is not a characteristic of all present day legal proceedings, still less the final determination after appeal of such proceedings."

66. So there the Victorian court is applying the old principles to present day realities and thus producing a result which would not have been produced at the time when the principles were first formulated.
67. Similarly in New Zealand. Cooke J in N.Z.Social Credit Political League v O'Brien [1984] 1 NZLR at p. 88 said

"In New Zealand scale party and party costs, by comparison with taxed party and party costs in England, may fall even further short of a litigant's proper and reasonable actual expenditure. There is quite a strong argument that the difference should be recoverable by action against someone who has instituted unsuccessful civil proceedings maliciously and without reasonable cause. And, as the text book writers say, damage to reputation does tend to flow from civil proceedings making serious allegations."

68. Once more principles are applied to current local realities so as to produce a result which would have surprised the judges who first formulated the principles.
69. Academic writers
70. I think it fair to say that there is a general lack of satisfaction with the fine distinctions with which this part of our law is now riddled^[4]. Professor Fleming puts the matter thus^[5]

"The tort of malicious prosecution is dominated by the problem of balancing two countervailing interests of high social importance: safeguarding the individual from being harassed by unjustifiable litigation and encouraging citizens to aid in law enforcement. On one side, it needs no emphasis that the launching of scandalous charges is apt to expose the accused to serious injury, involving his honour and self respect as well as his reputation and credit in the community. Malicious prosecution, therefore bears close resemblance to defamation, both being infringements of essentially the same complex of interests on the part of the Plaintiff. On the other side, however, is the competing interest of society in the efficient enforcement of the criminal law, which requires that private persons who co-operate in bringing would-be offenders to justice, no less than prosecutors should be adequately protected against the prejudice which is likely to ensue from termination of the prosecution in favour of the accused."

71. At p.611 he writes:

"Extending the action to wrongful civil proceedings has encountered anything but enthusiastic response. Admittedly, there is nothing in the history of the action nor any pronouncement of binding authority to suggest that the action is confined to criminal proceedings. Yet in practice this came close to being the case in consequence of so interpreting the conventional requirements of legally recognised damage. First of all, it has been peremptorily denied that commencing civil proceedings could possibly expose the person sued to scandal, save bankruptcy and winding up petitions ................... The distinction was justified on the specious ground that, whereas in bankruptcy proceedings and criminal prosecutions injury to credit is done before the accused has a chance to dispel the false imputation, in an ordinary civil action it is not the bringing of a suit that does the harm but the publicity of the proceedings, and the fair name of a person improperly maligned is supposedly cleared in open court by a determination in his favour. In the one, it is said the poison comes before the antidote and mischief may be wrought before it can be undone; in the other, poison and the antidote are presented simultaneously.

......................... Un-reimbursed legal costs incurred by a successful defendant still do not qualify. For unless the civil court lacked all power to award costs, like a small debts court in some jurisdictions, the pusillanimous view prevails that if the person wrongly sued was not awarded costs, he either did not ask for them, had not incurred any or did not deserve them; and if he got his costs, any difference between them and his actual expenses must be ignored because of the fanciful doctrine that the difference between party and party costs and solicitor and client costs is not recognised as legal damage. Otherwise, it is said, every successful plaintiff might bring a second action against the same defendant to recover costs not awarded to him on taxation."

72. In Salmond and Heuston 21st Edition at page 392 we find

"It was once thought that to institute or maintain an ordinary civil action (not extending to any arrest or seizure of property) is not a tort, however unfounded, vexatious and malicious it may be . The reason alleged for this rule is that the advancement of a false case for the purpose of sustaining a claim or defence is not the cause of any damage of which the Law can take notice - perhaps because the costs awarded to the successful party are regarded as sufficient compensation. To what classes of civil proceedings this exemption applies is far from clear. Will an action lie at the suit of a solicitor whom the Defendant has maliciously endeavoured to have struck of the Roll? If malicious proceedings in bankruptcy are .............. a good cause of action, there seems no reason founded on history or public policy why a similar conclusion should not be drawn with respect to other civil proceedings. Again there seems to be no reason why an action should not lie for the institution of unfounded and malicious proceedings before a Court Martial or some administrative or domestic tribunal. The adverse decision of such a body may cause serious damage to the reputation or livelihood of the party accused."

73. In Winfield & Jolowicz on Tort (14th Ed.) the editors write^[6]

"........................English Law has not adopted what in the United States is known as the "Prima Facie Tort Theory" whereby "intentional infliction of temporal damages is a cause of action which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the Defendant is to escape. Nevertheless it should be noted that we have for a good many years had something very close to a generalised principle of liability in situations where the Defendant's purpose is the infliction of physical harm on the Plaintiff, and despite the caution which now characterises the Court's attitude to the duty of care in negligence it will be an unusual case in which the Defendant is not liable where his act has caused foreseeable physical damage to the Plaintiff or his property.^[7]"

74. As has already been indicated in the citations from de Laurentis, the Re-statement (Second) of Torts at 680 permits liability for vexatious "initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other".
75. Discussion
76. The present position is thus unsatisfactory. What are the possible ways forward?
77. Notwithstanding the passage in Amin cited above, I do not start from the position that the purpose of the cause of action which we are considering is to prevent the courts from having their processes abused. It seems right to start from the position of the individual who has suffered damage by being maliciously subjected to proceedings brought without any justification. In my view such an individual ought to be compensated unless there are overriding reasons to the contrary.
78. When considering what is damage, I would start from the position that each of the following constitutes damage for such purposes

physical or mental injury or suffering

loss of standing and reputation in the world

financial loss

79. I acknowledge that there may be policy reasons for departing from such a broad approach to damages. The courts have in the past been slow to allow recovery for mental anguish as opposed to physical anguish. The courts have become more liberal in this regard of late. I accept that in Little the court treated damages for mental and bodily anguish as manifestly not recoverable. Speaking for myself, I see no obvious reason at the present time for this. Damage of this sort is recoverable in breach of contract cases. Damage of this sort if inflicted negligently give rise to a cause of action. I see no reason why, if the same damage is inflicted deliberately and maliciously it should not also give rise to a cause of action. In the present day context it seems to me to fall within the second of Holt C.J.'s headings "damages such as are done to the person; as where a man is put in danger to lose his life or limb".
80. I acknowledge that there may be policy reasons in some circumstances for preventing the recovery of costs incurred in an earlier civil action which no order in that earlier action enabled the claimant to recover. However, those policy reasons have no application to the present case where there was no earlier civil action. Moreover it seems from Berry that this court was not minded to extend the policy reasons over a broader field than past civil actions.
81. I acknowledge the legitimacy of a desire not to discourage citizens from assisting in the law enforcement process. That rationale is not applicable to a case like the present.
82. Damages for publication of defamatory matter is usually considered in a different context from damages for defamation by merely launching and persisting in proceedings. Policy considerations have led the courts to give possible defences based on qualified and absolute privilege. So far as I am aware none of the restrictive rules applying to defamation, if applied by analogy, would, in the context of the present case, present an obstacle to the plaintiff succeeding if the facts are as pleaded. In particular it is noticeable that the Plaintiff proceeds on the basis that it is for him to prove malice.
83. In his interesting and helpful analysis Professor Fleming in his book "The Law of Torts" 8th Edition points out^[8] that

"The Law has to differentiate between the various kinds of interests for which individuals may claim protection against injury by others. Elementary in all legal systems is the protection afforded to personal security and tangible property. But the desire for security, especially in modern time, is more pretentious. People wish to be safeguarded not only against physical aggression, but also against detrimental consequences to their pocket book. Hence the demand for a remedy against deceit, unfair competition, and interference with profitable relations they maintain with business associates or employees. ........ Individual feelings of modesty, personal integrity and self-respect might call for legal support against invasions of privacy and other humiliating practices. In each of these instances, the human interest involved has a different weight in the scale of social values, and for this a discriminating analysis must perforce make allowance. The second variable element in Tort problems is the nature of the Defendant's conduct. No classification is fraught with greater significance, in point of the policies involved, than that between intentional and accidental harm. Deliberate injury to others is almost invariably devoid of social utility and, excepting situations where on supervening grounds of policy a special privilege is recognised, ...................... a Defendant who intentionally invades another's interests of personality or reputation .............. is held responsible for the harm he thereby causes.(My emphasis. In comparison, protection against unintended harm is more modest, because greater weight is given to the countervailing interest of the Defendant in freedom of action. ......................."

84. What is clear is that a person's health^[9] and reputation are interests protected by the law of torts. Although in the course of the alleged conduct by the Council allegations arguably defamatory of the Plaintiff may well have been made both within and outside the Council Chamber all the discussion before the learned judge and most of that before us has been concerned with the boundaries of the tort of malicious prosecution.
85. This emphasis can distract from looking clearly at the underlying merits of the case. I join others in considering it dangerous to compartmentalise different torts. Thus Professor Brazier in Clerk & Lindsell on Torts (17th Ed) states^[10]

In modern times a cause of action derives simply from the factual situation justifying redress. Classification between... different categories of tort, for example trespass and negligence, will only be required when statute or rules of procedure impose some practical distinction dependent on the form of the plaintiff's redress.

86. This is not the place to enter into the academic debate as to whether there is a law of tort or a law of torts. In the end the result tends to be much the same. As the same work puts it^[11]

... rejection of a general principle of tortious liability in itself neither hampers the development of existing torts, nor outlaws the gradual emergence of new torts. If the plaintiff can establish violation of an interest generally protected by the law of torts by means of the kind of conduct normally prohibited by the law of torts, argument by way of analogy from an existing tort may well succeed in what will ultimately be seen as the creation of a novel tort.

87. I agree with Simon Brown L.J. that there is at best an imperfect logic in confining the tort to the already established categories of proceedings. I agree with Robert Walker L.J. that the present apparent boundaries of the tort of malicious prosecution are not easy to justify , either as a matter of principle or in their practical results. I can see no reason in principle why we should draw the line at the point at which it has currently reached. None was advanced in argument. Attempts in judgments to justify it in terms of principle I do not find persuasive. Nor does any academic writer which I have been able to discover. Nor have courts in other jurisdictions.
88. Such rationale as there was for the various fine distinctions which we find in this branch of the law sprang from history and historical circumstances which no longer appertain. I see no advantage in retaining them. It is a commonplace of legal history that a rule is established for perfectly sensible reasons and yet is adhered to for years after the underlying reasons no longer apply^[12].
89. Simon Brown L.J. in his judgment states that the point is one of some difficulty. I agree. He goes on to state that it is necessary to consider the essential ingredients and origins of this tort in seeking now to determine its true scope. While of course I accept that the Common Law judge will look at how the law has developed from its origins, I myself find the concept of "true scope" of a particular tort conceptually unhelpful in the sort of exercise upon which the court is currently engaged. As I have indicated, I prefer to start from the other end, as it were. In my judgment , if the facts are as pleaded in the Statement of Claim, it is consonant with the general approach of our law as it now stands that the Plaintiff have a remedy. I can see no policy reason for not giving him one. Academic writers and judges in other jurisdictions regard the dicta in our cases as ones which should not be followed. I agree with them. I prefer to be guided by principle than by dicta echoing down the generations.
90. Robert Walker L.J. implies that the allowing of this appeal is the taking of a fairly momentous step and draws attention to the dangers of judicial creativity alluded to in the dissenting speech of Lord Goff of Chieveley in Tinsley v Milligan. For my part, I am not persuaded that allowing this appeal would be such a momentous step. We would not be overruling any authority which decides that no remedy is available in such circumstances. At worst we would be failing to follow dicta to that effect, dicta which have not commended themselves by any means everywhere in the Common Law world or to most academics or, if I understand them aright, my Lords. I would not, in those circumstances, regard the act of letting the Plaintiff proceed with his claim as an outstanding example of judicial creativity. It seems to me that the degree of judicial creativity involved is no more than that undertaken by the majority of their Lordships in Tinsley v Milligan.
91. The essential complaint here by the Plaintiff is not the complaint that someone maliciously passed a false story to his employer. That would give rise, as Robert Walker L.J. points out, to a complaint of defamation. The complaint here is somewhat wider. It is that the Council itself maliciously hauled the Plaintiff before a tribunal which it knew had no power to hear the allegations against him, prevented him from having a fair hearing and then maliciously suspended him from office. All this, it is said, cost the Plaintiff money in fees and damaged his health and reputation. The effects of the alleged action of the Council on a councillor is potentially more grave than a defamatory complaint made by an individual. In my judgment the Plaintiff ought to have the opportunity to try and make good his case and the court ought to be free to declare that a plaintiff who makes good such a case is entitled to compensation. By striking the action out at this stage the court is preventing that from happening without investigating the merits. No clear policy reason has been advanced by counsel and none is I think identified by my Lords which would justify such a course.
92. I would allow the appeal.
93. LORD JUSTICE ROBERT WALKER: I have had the enormous advantage of reading in draft the judgments prepared by my Lords. I find myself in agreement with the reasoning and conclusion in the judgment of Simon Brown LJ but it is right that I should briefly state my reasons in my own words.
94. The plaintiff's claim seeks to establish the boundaries of the tort of malicious prosecution in such a way as to include two important fields for whose inclusion there seems to be no English precedent, although (as the judgment of Schiemann LJ shows) the first inclusion is made by the law of at least one of the states of Australia, and the second by the law of at least one of the states of the United States of America. One inclusion (it would perhaps beg the question to call it an extension) would bring in proceedings which are neither criminal proceedings nor the special category of insolvency proceedings (bankruptcy petitions and winding-up petitions) established by 19th century authorities and recognised by this Court in recent years in Radivojevic v LR Industries [1984] CA Transcript 514 (cited in Business Computers International v Registrar of Companies [1987] 3AER 465, 468-9) and Metall und Rohstoff v Donaldson Lufkin and Jenrette [1990] 1QB 391, 471 (in which the judgment of the Court expressed great doubt about the existence of any general tort of maliciously instituting civil proceedings). The other inclusion would bring in proceedings before a tribunal which is not a court and does not form part of the state's judicial system (see Attorney-General v BBC [1981] AC303, 359-60, where Lord Scarman noted that the judicial system does include courts martial and consistory courts).
95. Both my Lords agree that the present situation, as it appears from the authorities, is unsatisfactory. It has developed from remote origins when both the legal system, and social conditions, were very different. Its history is entwined with that of defamation but , as Simon Brown LJ demonstrates, the scope of the tort of malicious prosecution cannot be explained satisfactorily as being co-extensive with that of absolute privilege. The explanation by Buckley LJ in Wiffen v Bailey [1915] IKB 600, 607 that in most civil proceedings "the poison and the antidote are presented simultaneously" is not to my mind convincing in present-day circumstances, and I respectfully doubt whether it was ever a wholly convincing explanation.
96. Underlying the judgment of Schiemann LJ is, I think, the general thought that in the law of tort as in equity, no wrong should be without a remedy. For my part I am not satisfied that the restriction of malicious prosecution to its apparent boundaries would leave a yawning gap. If a man loses his job and suffers damage to his reputation because of some false and malicious story passed to his employer, after a disciplinary hearing, he will have a cause of action for libel or slander or malicious falsehood (and he may be able to obtain extraordinary discovery to assist him: see P v T Ltd [1997] 4 AER 200). If a man is suspended from local authority committees and suffers damage to his reputation because of some concerted action to bring false and malicious disciplinary proceedings against him, he may have a cause of action for conspiracy (in addition to defamation or malicious falsehood).
97. However that may be, I recognise that the present apparent boundaries of the tort of malicious prosecution are not easy to justify, either as a matter of principle or in their practical results. But to recognise the plaintiff's claim as viable would, it seems to me, set the boundaries in a way which, while meeting some of the difficulties of principle, would be likely to lead to numerous practical difficulties. If that fairly momentous step is to be taken I think that it is for Parliament, and not for this court to take it. The legislative process, with appropriate consultation, is generally to be preferred to judicial creativity : see the observations of Lord Goff of Chieveley in Tinsley v Milligan [1994] 1AC 340,364.

ORDER: Appeal dismissed with costs; costs relating to the period when plaintiff was legally aided, prior to 4th November 1994, not to be enforced without leave of the court; legal aid taxation of plaintiff's costs up to date of discharge of legal aid; leave to appeal to House of Lords refused.

(Order not part of approved judgment)

Note 1   c.f. Lord Keith of Kinkel said in Martin v Watson [1996] 1 AC 74 at p.84, who (after having cited from a number of Commonwealth authorities and from the American Law Institute Re-Statement of the Law Torts 2d [1977] Section 653) in relation to the question ‘Who is liable for malicious prosecution where an informer gives evidence to a policeman who, in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information?’) said:- "in the absence of any countervailing authority in the English courts I am of the opinion that principles to be derived from the foregoing sources should be accepted as valid in English Law".     [Back]

Note 2   For my part, I find the passage "The foundation of the action lies in abuse of the process of the Court by wrongfully setting the Law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose." puzzling. If that be right, and the purpose is not to compensate the Plaintiff, the best method of achieving this is to let the matter be dealt with as a contempt of court.    [Back]

Note 3    Berry v BTC.    [Back]

Note 4   For an American criticism see Prosser and Keeton on Torts Chaper 21. (The Fifth Edition of 1984 is the last which I have read).    [Back]

Note 5   The Law of Torts (8th ed.) at p.609    [Back]

Note 6   at p.17    [Back]

Note 7   quoting Aikens v Wisconsin 195 US 194 [1904], per Holmes J. in support of the first of these sentences    [Back]

Note 8   page 4    [Back]

Note 9   Health in this context nowadays includes health of mind as well as health of body - see R v Ireland [1997] 4 All ER 225, in particular the cases cited between pp. 231-235    [Back]

Note 10   page 1. See Lonrho Plc v Fayed (no. 5) [1993] 1 WLR 1489, at 1508, per Evans L.J.    [Back]

Note 11   page 2    [Back]

Note 12   A particularly striking example is Miliangos v George Frank (Textiles) Ltd (1975) 3 All E.R. 801 H.L.    [Back]