Does “Prosecution” in the Law of Malicious Prosecution Extend to Malicious Civil Proceedings? A Commonwealth Update (Part 2)

JurisdictionSouth Africa
Citation(2017) 28 Stell LR 564
Date27 May 2019
Published date27 May 2019
AuthorChuks Okpaluba
Chuks Okpaluba
LLB LLM (London) PhD (West Indies)
Adjunct Professor of Law, University of Fort Hare
Introduction (to part 2)
Part 1 of this art icle, which was published in the second issue of the current
volume of this Journal, set out to an swer the question posed in th is article
by considering three pertinent, but related quest ion s. The rst is whether
the plaintiff in an a ction for malicious prosecution has alleged prose cution.
In discussing th is issue, some Australian , Canadian and Nam ibian cases
were considered. The second is the d iscussion of the main question – does
malicious prosecution extend to civil p roceedings? Here, the previous House
of Lords’ decision in Gregory v Portsmouth Cit y Council (“Gregory”),1
which had approached the mat ter from a negative standpoint, was thoroughly
canvassed alongside the approaches of the High Cou rts of New Zealand and
Botswana. The thi rd angle to the discussion then c entred on the enunciation
of the action for malicious civil proceedi ngs by the majority judgment of the
Privy Council (“PC ”) in Crawford Adjusters v Sagi cor General Insurance
(“Crawford Adjusters”),2 which like the recent judgme nt of the UKSC in
Willers v Joyce (Re: Gubay (deceased) No 1) (“Willers 1”)3 discussed i n the
present par t, answered in the afrmative that a tort of malicious prosecution
of civil proceedings indee d exists under the English com mon law. Thus, in
addition to the aforesaid UK SC judgment, the approach of some Canad ian
courts coupled with how South Af rican High Cou rts have approached the
problem form the subject matter of the res earch in this part of the article.
4 3 The approach of the majority of the New Brunswick Cour t of
The question whether an act ion for malicious prosecution in civil proceedings
applies to provincial self-regulati ng disciplinar y committees a nd if the trial
judge erred in law and mi xed law and fact in applying the test to the par ticular
facts of the case was pointedly a nswered in Estabrooks by a major ity of the
New Brunswick Cour t of Appeal. Larlee JA who delivered the majority opinion
1 2000 1 AC 419 (HL).
2 2014 AC 36 6 (PC).
(2017) 28 Stell LR 564
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started by noti ng that although Nelles4 somewhat expanded the availability of
the action for malicious prosecution, it rem ained largely restrict ed to cases
involving criminal prosecution.5 Indeed, the lat e Professor Fleming had
observed that the effor ts to extend the action to w rongful civil proce edings
have encountered “anyth ing but enthusiastic response”.6 Soon after the Nelles
judgment in the Supreme Cou rt of Canada, Lander J held in Norman v Soule 7
that public policy had favoured the reluctance of Ca nadian and English courts
from entert aining claims for malicious prose cution for actions arising f rom
civil proceedings, henc e that tort had exist ed almost exclusively in the realm
of wrongful bri nging of crimina l charges where the motivation to do so was
malicious. On his par t, Klar opines that m alicious prosecution was intended
to provide a remedy for damages suf fered by a person as a result of having
been u nju stiably prosecuted. Fu rther, whether an action for malicious
prosecution could be brought in a n ordinary civi l proceeding case rem ained
an “open question” of which “the weight of authority seem s to be against it”
whereas Canadia n authorities have generally adopted a r estrictive approach.8
A similar approach exte nded to statutor y professional organisations who are
not held liable for damages for the erroneous exercise of judgment i n quasi-
judicial matters, provided t hey acted bona de and without malice.9 Just a s
the Nelles judgment inuenced the agitation for extending the action for
malicious prosecution to civil proce edings generally, the cour ts were invited
to extend the scope of malicious prosecut ion from crimi nal prosecutions to
civil prosecutions in the cont ext of professional civi l proceedings.10
After exhaust ively analysing the Canadian lower cour ts’ approach in the
absence of any Supreme Court judg ment on the subject; the Gregory decision
from the House of Lords which was hithe rto the highest author ity on the
subject;11 the PC judgme nt in Crawford Adjusters which had then over taken
Gregory as the highest author ity on the subject in the Commonwealth;12 and,
lastly, the question whether the plaintiff i n the circumst ances of this case
had to spe cically plead vicarious liability in order to establish malicious
prosecution,13 Larlee JA summarised the r easons why the majority came to the
conclusion it did in Estabrooks. Firstly, this was a relatively minor complaint
that dealt with one act of alleged conduct which was t hat Mr Estabrooks failed
4 1989 2 SCR 170 (SCC).
5 2014 NBCA 48 (CanLII) para 25.
6 J Fleming The Law of Tort (19 98) 675.
7 1991 BCJ No 2061 (SC) (QL).
8 LN Klar Tort Law 5 ed (2012) 68-69.
9 JT Casey The Regula tion of Professiona ls in Canada (1994) 11-32.
10 In Stoffman v Onta rio Veterinar y Associati on (Div Ct) 1990 CanL II 6925 (ONSC), the quest ion was
whether a malic ious prosecut ion suit was availa ble where the orig inal case was before a discipli nary
body and was not a cr iminal pros ecution or one of the li mited number of civ il actions from wh ich such an
action may spr ing? The existence of a n absolute immunit y strikes at the ve ry principle of equa lity under
the law and is esp ecially alarmi ng when the wrong has bee n committed by a per son who should be held
to the highes t standards of conduc t in exercising a public tr ust. The only two except ions to the rule that
in all action s for malicious prosec ution a crimina l prosecution must b e shown, were the prese ntation of a
petition in ba nkruptcy or a p etition for the wind ing up of a public company.
11 2014 NBCA 48 paras 25, 41-42.
12 Paras 25, 43-47.
13 Paras 49-57.
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