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Fighting the elements: proving the tort of malicious prosecution in CXZ v ZXC

In CXZ v ZXC, Steyn J analysed the claimant’s pleaded case, in this instance as to whether the law had been set in motion against him on a criminal charge. She then examined the four elements of the tort of malicious prosecution, and the fact that a claimant has to prove each element.

The four elements of proving malicious prosecution

At the outset of her judgment, Steyn J carefully outlined the four elements to be proven in a claim of malicious prosecution, which are that:

  • The law has been set in motion against a claimant by a defendant on a criminal charge (or, now, through civil proceedings as well).
  • The prosecution was finally determined in a claimant’s favour (for example, by acquittal in criminal proceedings).
  • The prosecution was without reasonable and probable cause.
  • The prosecution was malicious.

Steyn J’s judgment in this case focused on the claimant proving the very first element.

Case summary and background

The parties married in 2012. During their relationship they had two children. The marriage broke down quickly. In 2014, the defendant (wife) petitioned for divorce with decree absolute being pronounced by 2015. In 2017, while proceedings were ongoing concerning access to the children (the children proceedings), the defendant reported the claimant (husband) to the police, alleging that he had sexually abused his own children. The defendant later acknowledged, in the children proceedings and in this case, that her allegations were false (that is, that the claimant did not sexually abuse their children), and that there was no proper basis whatsoever for the defendant’s allegations.

On the back of the defendant’s acknowledgment in the children proceedings, the claimant issued a claim for malicious prosecution against the defendant. In July 2019, the defendant applied for an order that the claim should be struck out or alternatively that she be given summary judgment. The defendant argued that the first element of the claimant’s claim for malicious prosecution had not been met because, quite simply, the claimant had not been prosecuted. The claimant responded that malicious prosecution was an evolving area of law, that strike out of his claim was not appropriate, and that the claim should instead proceed to trial. Of less significance, in January 2020 the claimant applied for relief from sanctions regarding the late filing and service of a notice of funding.

The judgment

Steyn J held that it was clear that the tort of malicious prosecution could now apply in civil as well as a criminal circumstances, but emphasised that the case law clearly confirmed that the basis of the tort is the malicious institution of proceedings. There was no prosecution in this instance, and the claim was therefore bound to fail. Steyn J went further and said that the claimant had not shown any compelling reasons why, in the absence of a realistic prospect of success, his claim should just the same be allowed to proceed to trial.

The judge also held that the claimant had failed to show that he had been prosecuted, or in other words, that the law had been set in motion against him. In this instance, the claimant, on his own pleaded case, was candid that he had not actually been arrested, although he felt he had no other option but to attend the police station voluntarily, to be interviewed under caution or face the real prospect of having a warrant issued for his arrest. Following that, the claimant was the subject of a police investigation for some two months and ten days in relation to the offences, which understandably caused him great upset and disruption. Notwithstanding this, Steyn J was careful to distinguish that there was a clear difference between an arrest, which meant that someone had lost their liberty, and a voluntary agreement to be interviewed by the police, which did not involve being detained in any way. Nor had the claimant actually been charged with any offence during the course of, or at the end of, the police investigation, and again this was emphasised in his own statement of case.

Steyn J reiterated that the tort of malicious prosecution extends to civil proceedings, which is a significant development, but her judgment confirms that the essence of the tort is the malicious institution of proceedings (as held in Willers v Joyce; see also Claire’s blog from June last year). Steyn J held that that case did not support the claimant’s argument that the tort extends, or should be extended, to circumstances where no prosecution had been put in motion. Steyn J acknowledged that the claimant was right to highlight recent developments regarding the privacy rights of those subject to arrest or police investigation. But this did not help the claimant in his case.

The court was sympathetic to the claimant, given that he had been subjected to a lengthy police investigation for, in the end, no good reason. Steyn J also accepted the harm that could easily be caused to a person’s reputation as a consequence of allegations made to the police, even where those allegations do not culminate in a charge or conviction. But Steyn J maintained that the tort of malicious prosecution should not be extended to enable a claim to be made where a claimant has not been arrested or charged.

Steyn J therefore struck out the claimant’s claim.

Practical implications for practitioners

When advising clients who are considering bringing a claim for malicious prosecution, practitioners should have careful regard to the four elements outlined in this judgment. Each element should be worked through sequentially, with reference to the facts of the case and indeed any documentary evidence available, to ensure that the client (the potential claimant) is on a sound legal footing. Such careful early analysis of a client’s prospects of success may also involve pre-action requests for early disclosure from any investigating authority such as the police.

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