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11 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Malicious Prosecution |
The tort of malicious prosecution is committed where the defendant: 1. maliciously and without reasonable and probable cause 2. initiates against the claimant a criminal prosecution which terminates in the claimant’s favour, 3. and which results in damage to the claimant’s reputation, person or property. |
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In this tort, the law seeks to hold a balance between two opposing interest of social policy, namely:
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(a) the interest in safe guarding persons from being harassed by unjustifiable litigation; and (b) the interest in encouraging citizens to assist in law enforcement by bringing offenders to justice. |
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The courts have always tended to give more weight to the latter interest, with the result that :
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‘the action for malicious prosecution is more carefully guarded than any other in the law of tort’, and the number of successful actions is small.
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In addition to the tort of malicious prosecution, there is, as the Privy Council has confirmed an analogous (related) tort of: |
- maliciously procuring the issue (as in ‘giving’) and execution of a search warrant. Gibbs V Rea (1998) 52 WIR 102
- Maliciously instituting bankruptcy or winding up proceedings. Quartz Hill Gold Mining Co V Eyre (1883) 11 QBD 674 |
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In the commonwealth Caribbean, actions for malicious prosecution are often combined with? |
actions for false imprisonment. |
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the essentials which must be proved by the claimant in order to establish a case of malicious prosecution: |
(a) That the law was set in motion against him on a charge of criminal offence;
(b) That he was acquitted of a charge or that otherwise it was determined in his favour; (c) That the prosecutor set the law in motion without reasonable and probable cause; (d) That, in so setting the law in motion, the prosecutor was actuated by malice; (e) That he suffered damage as a result. |
Failure to establish any one or more of these requirements will result in the claimant losing his action for malicious prosecution. |
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Institution of prosecution |
The claimant must first show that the defendantinstituted the prosecution against him or, in the words of Lopes J, that thedefendant was ‘actively instrumental in setting the law in motion’ against theclaimant. |
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The following principles as to what constitutes ‘setting the law in motion’have been established by the authorities: |
i. It is not necessary that the defendant should have actually conducted the prosecution. It is sufficient for liability if, for example, he laid information before the magistrate, on the basis that the magistrate then issued a summons against the claimant or a warrant for the claimant’s arrest. Campbell v The Jamaica Telephone Ltd, (1991) 28 JLR 527 (Supreme Court, Jamaica ii. It is not necessary that prosecution be actually commenced, it was sufficient liability if the proceedings reach a point where it could be said that the claimant reputation was injured (Mohammed Amin v Bannerjee). iii. Where the defendant merely informs the police of certain facts which incriminate the claimant, and as a result the claimant institutes proceedings, the defendant will not be regarded as having instituted proceedings, since the decision to prosecute is not his. |
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Termination of Prosecution in the claimant’s favour |
It is an inflexible rule that no person who has been convicted on a criminal charge can sue the prosecutor for malicious prosecution, even though he can prove that he was really innocent and that the charge was malicious and unfounded, (Basebe V Matthews) for if a person were allowed to sue for malicious prosecution after the criminal trial had ended adversely to him, it would entail a re-opening of the issue of his guilt, and this would amount to a challenge to the propriety of the conviction and might lead to the judgment in the criminal court being 'blown off by a sidewind' |
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‘The crux is not so much whether he has been proved innocent as that he has not been convicted’,29 the underlying principle being that a man is presumed to be innocent until he is proved guilty. Thus, the requirement will be satisfied where, for instance: |
(a) the claimant was convicted in a lower court but his conviction was quashed on appeal (b) the claimant was acquitted of the charge in question but convicted of a lesser offence; (Boaler v Holder) (c) the claimant was acquitted on a technicality such as a defect in the indictment, inter alia. |
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Absence of reasonable and probable cause |
This third requirement is perhaps the hardest to satisfy. In the first place, it involves proof of a negative (proof of absence) by the claimant, which is a notoriously difficult task. |
the concept still remains vague and difficult to apply in individual cases. |
