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Has the Supreme Court opened the floodgates to a torrent of satellite litigation?

An Important Question Answered

9 Member panel of Supreme Court holds 5:4 that the tort of malicious prosecution extends to civil proceedings

Yesterday the Supreme Court handed down two judgments in Willers v Joyce and another (in substitution for and in their capacity as executors of Albert Gubay (deceased)) [2016] UKSC 43 and [2016] UKSC 44. The first judgment dealt with the scope of the tort of malicious prosecution and answered the question: “…whether the tort of malicious prosecution includes the prosecution of civil proceedings”. The second judgment considered the procedural question of whether a lower court may in some circumstances follow a decision of the Judicial Committee of the Privy Council in preference to a conflicting decision of the Supreme Court/House of Lords.   

The pleaded facts were assumed for the purpose of a strike out application. The claim arose out of previous proceedings which a company controlled by Mr Gubay had brought against Mr Willers; those proceedings were discontinued very shortly before a 5 week trial causing W significant loss and damage. It was Mr Willer’s case that the previous proceedings had been brought maliciously as part of a campaign to do him harm.

Whether the tort of malicious prosecution extends to civil proceedings brought maliciously has been controversial for some time. In Gregory v Portsmouth City Council [2000] 1 AC 419 the House of Lords considered the tort did not extend past criminal proceedings, whereas in Crawford Adjustors (Cayman) Limited v Sagicor General Insurance (Cayman) Limited [2014] AC 366 the Privy Council (albeit only by a majority) held that it extended to civil proceedings.  In Willers, Amanda Tipples Q.C. sitting as a Deputy High Court Judge considered she was bound by Gregory, being a House of Lords decision, as opposed to the (later) Privy Council decision; she accordingly struck the proceedings out but granted a “leapfrog” certificate to facilitate a direct appeal to the Supreme Court to settle the point of principle.

Lord Toulson (with whom Lady Hale, Lord Kerr and Lord Wilson agreed) held that the tort of malicious prosecution extended to maliciously pursuing civil proceedings; there was no good reason to attenuate the tort in the manner suggested by Gregory. In short, if a person has suffered injury as a result of civil proceedings brought maliciously why should there not be a remedy in damages?

Lord Neuberger, dissenting, enumerated 12 answers to that question. The most compelling strikes the writer as the danger of never ending litigation and satellite proceedings. C brings a claim against D and looses; D then brings a claim, perhaps maliciously, in malicious prosecution against C; and so on. As Lord Sumption (also dissenting, along with Lords Mance and Reed) put it:

“The reluctance of the courts to accept rules of law justifying secondary or satellite litigation is born of long-standing judicial experience of the incidents of litigation and the ways of litigants. That experience is as relevant today as it has ever been. The volume of litigation has increased exponentially in the last 70 years. Its tendency to generate persistence, obsession and rancour is as great as ever. The hazards of losing, already considerable in terms of costs, must inevitably be greater if one adds the threat of secondary litigation for prosecuting the earlier action in the first place. Doubtless the great majority of secondary actions will fail, but that makes it even less satisfactory to enlarge the opportunities for bringing them”.

It will be interesting to see whether there is a spate of such claims and, if so, how the courts go about developing controls to limit them.            

The case is also of interest as regards the judgment on the question of precedent. Many of the judges in Privy Council are also Supreme Court Justices: for example, Lord Neuberger had sat, and dissented, in the Privy Council in Crawford.  The Supreme Court in Willers  confirmed unanimously the orthodox view that as a matter of precedent a decision of the Pricy Council could not override the ordinary domestic rules of precedent (eg the High Court could not decline to follow a decision of the House of Lords/Supreme Court or Court of Appeal in favour of a conflicting Privy Council decision). However, by way of an important practical exception for the future, if a matter of English law comes before the Privy Council and it is being asked to depart from a decision of the House of Lords/Supreme Court, or Court of Appeal, it will now be possible for the Privy Council not only to decide such a decision was wrong but to direct that domestic courts treat the Privy Council decision as representing the law of England and Wales. 

Richard Hayes / 22nd Jul 2016


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