CFC 26 Ltd v Brown Shipley and Co Ltd and Others: ChD 29 Nov 2016

Complaint of the alleged sale of an underlease at a low price, working as a corrupt agreement. It was said that one of the defendants, a local council, was liable for malicious prosecution of an enforcement notice. The Council’s replied that the tort ‘cannot apply in relation to the mere service of an enforcement notice’ because, as it is put in Clerk and Lindsell: ‘To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question.’ The Council argued that the service of an enforcement notice involved no ‘appeal to some person clothed in judicial authority’
Held: Neey J said: ‘In my view, [Counsel for the Council] is right on this point. While it is now clear that the tort of malicious prosecution can apply without a criminal prosecution, there remains a requirement that the law has been ‘set in motion by an appeal to some person clothed with judicial authority’ and service of an enforcement notice cannot, as it seems to me, suffice for this purpose. I do not see Churchill v Siggers as providing authority to the contrary.’


Newey J


[2016] EWHC 3048 (Ch)




England and Wales

Cited by:

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.

Torts – Other, Negligence, Commercial

Updated: 07 December 2022; Ref: scu.571982