Actions for civil malicious prosecution: Willers v Joyce and another

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The case of Willers v Joyce and another (in substitution for and in their capacity as executors of Albert Gubay (deceased) revolved around a suite of litigation that has been ongoing since the 1990s.

It follows on from the Supreme Court’s decision in 2016 which allowed the concept of malicious prosecution within the civil jurisdiction.

The defendants in this matter were the executors of Albert Gubay, a businessman. During his life, Mr Gubay set up several brands and businesses, including Kwik Save and Total Fitness UK Ltd (later known as Langstone Leisure Ltd). His various businesses and assets were held by a group of companies known as “the Anglo Group.” Mr Gubay died in 2016.

The claimant had worked with Mr Gubay for many years. He was chief internal legal advisor to the Anglo Group and a director of several companies.

The action derived from litigation that commenced in the 1990s whilst Mr Willers was working with Mr Gubay. In order to understand this case, it is necessary to describe the earlier litigation.

Case one

Total Fitness UK Ltd sued Aqua Design and Play Ltd for defective workmanship. They were successful in obtaining judgment. Aqua Design and Play Ltd then went into liquidation.

Case two

The liquidator of Aqua Design and Play Ltd bought proceedings against them under section 213 and section 239 of the Insolvency Act 1986, for wrongful trading and reversal of a preference. The action was funded by way of indemnities from companies in the Anglo Group, including Langstone Leisure Limited.

Case three

Langstone bought a claim against Mr Willers on the basis that he had breached his fiduciary duties as a director of Langstone in relation to case one and two. Langstone served notice of discontinuance of the action three years after it commenced.

Case four

This related to Mr Willers’ costs of case three. The court’s assessment reduced the costs on assessment from over £3 million to £1.45 million.

Mr Willers then issued proceedings for malicious prosecution against Mr Gulbay in relation to case three. This was originally struck out, but was allowed to continue by the Supreme Court in 2016 (Willers v Joyce and another). The Supreme Court judgment in itself is worth considering as it establishes that the tort of malicious prosecution applies to civil claims.

The current case

Following the Supreme Court’s judgment in 2016, the case was resubmitted to the High Court. It was heard by Rose J.

In her judgment, Rose J outlined the necessary requirements for a successful civil malicious prosecution claim.

At paragraph 187 of her judgment, she outlined the requirements accordingly:

  • D was the prosecutor of the relevant action against C.
  • The relevant action was determined in C’s favour.
  • D had no reasonable or probable cause for prosecuting the relevant action.
  • D acted maliciously in prosecuting the relevant action.
  • C suffered loss as a result of D’s actions.

She then based her judgment on the following points.

Prosecutor

Mr Willers had chosen to sue Mr Gubay personally rather than Langstone Leisure Ltd, despite case three being bought by Langstone Leisure Limited.

Mr Willers had tried to pierce the corporate veil, and asserted that Mr Gubay was the controlling mind of Langstone Leisure Limited. The judge found that this was not enough to show Mr Gubay was the true prosecutor in this matter. She indicated that there were two circumstances where this could be the case, namely where Mr Gubay had bullied the directors to bring the action, or where he had misled the directors to bring an action. Neither of these instances were proven.

Accordingly, on this basis, Mr Willers was unsuccessful in proving that Mr Gubay was the prosecutor of the relevant action against Mr Willers.

Reasonable or probable cause

The judge stated that the test was the same as the criminal test for malicious prosecution, namely:

  • Did the prosecutor have an honest subjective belief in the guilt of the accused (Mr Willers)?
  • Were there objectively reasonable grounds for concluding that if the underlying facts were true the person charged (Mr Willers) was guilty of the imputed crime?

The judge analysed the evidence at paragraphs 240 to 276 of her judgment. She concluded that there was a “clear and probable cause” underlying the Langstone action. Accordingly, the judge did not find for Mr Willers on this point either.

Malice

The judge expressed concern that it was difficult to transfer the criminal authorities on malice to civil proceedings. She also noted that the Supreme Court had not given any guidance in this regard. Due to her findings in the rest of the case, she felt that she did not need to expound any further on this point.

Loss

The judge briefly considered Mr Willers’ losses. She commented that any claim for damage to health would be minimal, with the financial issue of losses relating to court assessed fees requiring another hearing with proper expert evidence. However, due to her finding that Mr Willers had not succeeded on the first two limbs of the tort, the issue of loss was academic.

Analysis

Following the judgment of the Supreme Court in earlier proceedings, the judge did not provide much guidance as to what a party must prove in order to succeed in a civil malicious prosecution claim. From the judgment, it is clear that the courts are relying on previous precedent relating to criminal malicious prosecution claims.

It is clearly early days in the tort of civil malicious prosecution, and it will take a few more cases to come before the courts until definitive guidance can be clearly distilled from case law.

Notes for practitioners

Very cautious advice should be given to a client who is seeking to take an action for civil malicious prosecution. It is clear that any such case should be built up carefully, analysing the facts of the case carefully, especially in light of what the judge said in relation to proving malice.

It is also worth noting that further satellite litigation has now commenced between the parties. The defendants in this litigation have commenced an application for third party costs against the claimant’s solicitors under section 51 of the Senior Courts Act 1981.

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