Barkhuysen v Hamilton: QBD 10 Nov 2016

Claims had been made between neighbours in the course of a long running neighbour dispute. In particular a claim was made of malicious prosecution as regards a complaint made to the police.
The claimant had ‘amply made out the third and fourth elements of this tort: the defendant made a false, entirely unfounded, and malicious accusation. That accusation set in train the actions of the police that followed: the claimant’s arrest and detention, the seizure of his property, the intimate sampling and other steps I have identified above. The defendant procured a criminal investigation of the claimant lasting several months.’
However, there was no prosecution for the purposes of the tort. Warby J explained: ‘All of that shows that there was a false arrest and false imprisonment thereafter, which were maliciously procured by the defendant. But in my judgment that is not enough to bring home the claim for damages for malicious prosecution. I accept Mr Samson’s argument that there was no ‘prosecution’ for the purposes of this tort. Ms Marzec submits that the underlying principle of the law of malicious prosecution is that an abuse of the process of the law that causes another injury is actionable; the key feature in considering whether there has been a ‘prosecution’ is whether the actions taken against the claimant were such as to cause him injury. She refers me to Churchill v Siggers (1854) 3 E and B 929, Mohamed Amin v Banerjee [1947] AC 322 at 331 (PC), Roy v Prior [1971] AC 470, 477-9 (HL) and the recent decision of the Supreme Court in Willers v Joyce [2016] UKSC 43. But in none of those cases was a mere arrest held to be actionable in the tort of malicious prosecution. Nor, in my judgment, does any of them stand as authority for any principle that would make a mere arrest so actionable. It is important not to treat passages in judgments, however high their authority, as tantamount to statutory wording.
The pleaded case for the defendant is that a prosecution begins when a person is charged. Mr Samson submits that this is too generous an approach. He argues that the authorities point to the conclusion that the malicious institution of proceedings before a judicial body is actionable in this tort, but not anything short of that. I agree, and add that the established rationale of the tort appears to be that compensation should be available for injury caused by a malicious abuse of the judicial power of the state. All of the cases cited above can be explained on this basis. See also the analysis of Sir Timothy Lloyd in Crawford v Jenkins [2014] EWCA Civ 1035 [2014] EMLR 25 [48]-[50].’ (emphasis added)

Warby J
[2016] EWHC 2858 (QB)
England and Wales
Cited by:
See alsoBarkhuysen v Hamilton QBD 23-Dec-2016
. .
CitedCXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .

Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 25 January 2022; Ref: scu.571114