Proving the tort of malicious prosecution: another battle against the elements

In Mosley v Associated Newspapers Limited, Nicklin J analysed whether the defendant was liable for the tort of malicious prosecution after it sent a dossier of evidence to the Crown Prosecution Service (CPS), intending that the claimant be investigated for alleged perjury, even if ultimately no criminal investigation or prosecution ensued.

Nicklin J found that the claimant’s claim did not show any reasonable grounds for bringing a claim for malicious prosecution. In fact, the claimant failed to show that there was a “prosecution” at all. So it followed that Nicklin J allowed the defendant’s application to strike out the claimant’s claim because there had been no prosecution of the claimant.

Malicious prosecution

This is a growing area of dispute and litigation. Nicklin J’s judgment provides a helpful review of the decided case law but focused on the actual acts, which would be considered a prosecution.

At the outset it is noted that the four elements of this tort 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 and for example by acquittal in criminal proceedings.
  • The prosecution was without reasonable and probable cause.
  • The prosecution was malicious.

Background and facts

In 2008, the claimant sued the News of the World for libel. The newspaper exposed his involvement in a sexual act involving several female prostitutes and published details of the incident, wrongly describing it as “Nazi-themed”. The claimant was successful in that case and was awarded damages.

Ten years later, on 28 February 2018, the defendant in this current case published a front-page article in the Daily Mail under the headline: “Did F1 Tycoon lie to Orgy Trial?” The print version took up some four pages.

Also on 28 February 2018, the defendant sent a detailed email to the CPS following on from a telephone call. Attached to that email were several documents for the CPS to consider. The email suggested that the claimant had potentially perjured himself in the 2008 case. The detail of the email set out the background to the 2008 trial and summarised the cross-examination. The defendant defended its action of passing the dossier to the CPS, stating that it was in the public interest to consider whether any criminal offences had been committed. The defendant sent a follow-up email indicating that more material would be sent to the CPS.

The defendant then published another article informing its readership that the Metropolitan Police were now investigating the matter. Both newspaper articles obviously named the claimant. The CPS sent the emails, which included a dossier, to the Metropolitan Police to determine whether an investigation was necessary.

Among the material within the dossier that was sent to the CPS was a 1961 by-election pamphlet supporting Walter Hesketh, who was a candidate for Sir Oswald Mosley’s far-right Union Movement. The pamphlet, which stated it was “published by Max Mosley”, Hesketh’s election agent, made arguably very controversial comments about non-white immigrants. The defendant asserted that the pamphlet in particular was a racist and offensive piece of parliamentary election literature. The defendant also inferred doubt as to whether the claimant had therefore lied under oath at the 2008 trial.

Notwithstanding the dossier documents and the defendant’s covering emails, the Metropolitan Police later decided not to launch a criminal investigation. In effect, there was no case to investigate against the claimant.

The law: acts amounting to a prosecution

Nicklin J’s judgment sets out these acts.

In the first place, a “prosecution” for the purposes of the tort of malicious prosecution required the commencement of proceedings before a judicial officer.

Secondly, given the tort is basically about the malicious abuse of the processes of the court, those processes (whether in a civil or criminal court) had to have been initiated.

Thirdly, it is necessary for the law to provide for an action against a person who abuses court procedures, because there is no remedy against the court.

Fourthly, simple or detailed preliminary steps undertaken by a defendant are not sufficient to prove a prosecution unless proceedings are then started (so, in other words, did proceedings come about?).

Lastly, the tort can now be based on any form of legal proceedings, not just a criminal prosecution.

Nicklin J emphasised that a complaint or request to investigate passed over to a prosecuting authority did not constitute a prosecution. He distinguished that as it was the newspaper articles that had actually damaged the claimant’s reputation, other legal remedies were available. However, in this instance a claim for malicious prosecution was not the appropriate remedy for the claimant to pursue.


Nicklin J clearly found that the claimant had failed to identify any legal authority which suggested or even came close to concluding that the act of registering a complaint to a prosecuting authority, as in this case to the CPS, could be deemed a “prosecution” under the tort of malicious prosecution.

Nicklin J went further, holding that even if a claimant could demonstrate that a complainant was banking on a criminal investigation and prosecution follow a complaint, that still did not amount to a “prosecution”.

For the purpose of future litigants considering a claim for malicious prosecution, Nicklin J even qualified the established principles in the authorities, which were uniform about a complaint to an investigating and prosecuting authority simply being insufficient to satisfy the element of “prosecution” under the tort.

Implications for practitioners

This judgment is a good reminder to practitioners that clients wanting to issue a claim for malicious prosecution should be carefully advised with regard to the now well-established four elements of this tort. Mosley is yet another illustration of the importance of this practice point, which is not new (see my earlier blog from August 2020 on the sensitive case of CXZ v ZXC). The strength of each element should be weighed up against the evidence available as well as the facts of a case.


In order to ensure that lawyers provide the best advice possible, requests for pre-action disclosure should be made from any investigating authority like the police.

Leave a Reply

Your email address will not be published. Required fields are marked *

Share this post on: