[2025] EWHC 2684 (KB)

There are two forms of liability, each involving a different form of malice. Lord Steyn explained in Three Rivers (No.3), at p.191:

“First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful.”

In a case of targeted malice, the abuse of power consists in the very intention to injure the claimant that constitutes the bad faith. In untargeted malice, it is the knowledge, or wilful disregard of the risk that, the claimant will probably suffer a particular harm (or type of harm) that, at least in part, constitutes the bad faith.

In opening submissions it was stated to be the Claimants’ case that;

“For the purposes of misfeasance in public office, the Claimants further contend that the Defendant’s officers did not approach the investigation with an open mind and held an improper and malicious motive and that they maliciously abused their powers as public officers in the knowledge that such abuse of power would probably cause them damage. Further, the Claimants contend that the Defendant’s officers knew that the prosecution of them would lead to the demise of their business and/or the companies. The Claimants further aver that the Defendant’s officers suppressed fundamental evidence which they knew would undermine any prosecution case, and which would support the Claimants case, thus rendering it more likely that the Claimants would be convicted of the charges.”

In closing submissions Mr Metzer and Ms Morris relied upon the submissions made in respect of malice made in respect of malicious prosecution.

On behalf of the Defendant it was submitted that the claim fails on its merits for the same reasons that applied to the malicious prosecution claim, in particular the complete absence of malice and the absence of any wrongful act constituting an abuse of power.