King's / Queen's Bench Division of the High Court

[2025] EWHC 2684 (KB)

Fecha: 17-Oct-2025

Malice

Malice

725.

Malice is at the root of the cause of action. As Otton LJ stated in Sinclair -v- Chief Constable of West Yorkshire (unreported 12^th December 2000)

“No action lies for the institution of legal proceedings, however destitute of reasonable and probable cause unless they are instituted maliciously- that is to say from some wrongful motive.”

726.

The existence of malice is an issue of fact.

727.

Although Viscount Simonds stated in Glinski that want of reasonable and probable cause involved a separate question from that of whether a prosecution was malicious, he stated that “the same facts may justify both findings”.

728.

Malice has been defined as follows:

(a)

Covering

“not only spite and ill-will but any motive other than a desire to bring a criminal to justice.”
per Lord Devlin in Glinski,

(b)

As set out in A v NSW [2007] HCA 10; 230 CLR 500 [at 91] and approved by Lady Hale in Williamson -v- Attorney General of Trinidad and Tobago [2014] EWCA Civ 1587

“What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law — an ‘illegitimate or oblique motive’. That improper purpose must be the sole or dominant purpose actuating the prosecutor.”

(c)

More than just incompetence and/or negligence. As Lord Justice Chadwick stated in Thacker-v-CPS [1997] The Times 29 December 1997;

“The fact that someone in the Crown Prosecution Service may have been negligent or incompetent in the course of reaching a decision to commence or to continue the prosecution – whether by failing to evaluate the evidence correctly at the outset, or in failing to review the evidence after committal or in the light of new material – cannot, in itself, justify an inference of malice. If that is all the evidence that there is, the question of malice cannot be left to the jury. It is because, in many of these cases, that will be all the evidence there is, an attempt to dress up a claim in respect of negligence or incompetence in the guise of malicious prosecution must fail.”

729.

The issue of inferring malice from the absence of reasonable and probable cause was considered in Paul v Chief Constable of Humberside Police [2004] EWCA Civ 308, with Brooke LJ (with whom Chadwick LJ and Maurice Kay LJ agreed) citing Gibbs v Rea [1998] AC 786 at [44] and stating:

“A Claimant cannot ordinarily be expected to produce direct evidence on these matters.”

730.

I now turn to misfeasance in public office.