The plaintiff appealed against rejection of his private prosecution for malicious prosecution.
Held: On the evidence the defendant had had reasonable and probable grounds to believe that there was sufficient evidence to convict and therefore had reasonable and probable cause for the prosecution.
Upjohn LJ said: ‘The following propositions are now clearly settled: The reasonable man would take the following steps: (1) he or his advisers would take reasonable steps to inform himself of the true state of the case . . ; (2) he or his advisers would finally consider the matter upon admissible evidence only . . ; (3) in all but the plainest cases, he would lay the facts fully and fairly before counsel of standing and experience in the relevant branch of the law and receive the advice that a prosecution is justified . . In addition, of course, the defendant must bona fide accept and act on the advice and, though that is part of a subjective test, it cannot be wholly removed from consideration at this stage.
If the plaintiff can prove that the defendants have failed to take any of these steps, then that will be evidence from which the judge may infer absence of reasonable and probable cause (at pp 454-5).’
Ormerod LJ said that once there was a prosecution to make possible a civil action, then the proposed plaintiff could not be actuated by malice, to render himself liable to an action in damages for malicious prosecution: ‘It may well be that the definition of malice in an action of this kind is wide enough to cover an ‘improper or indirect motive’, but I cannot accept that an indirect motive includes doing something which the law has said must be done before civil proceedings may be instituted.’
Judges:
Upjohn LJ, Ormerod LJ
Citations:
[1962] 1 QB 432, [1961] 3 All ER 1074
Jurisdiction:
England and Wales
Cited by:
Cited – Howarth v Gwent Constabulary and Another QBD 1-Nov-2011
The claimant alleged malicious prosecution and misfeasance in public office against the defendant. He had been charged with perverting the course of justice. He had worked for a firm of solicitors specialising in defending road traffic prosecutions. . .
Lists of cited by and citing cases may be incomplete.
Torts – Other
Updated: 22 August 2022; Ref: scu.448400