Chapter 3. Malicious Prosecution

• Pages: 53-72

INTRODUCTION

The tort of malicious prosecution is committed where the defendant maliciously

and without reasonable and probable cause initiates against the claim ant a criminal

prosecution which terminates i n the claimant’s favour, and which results in damage

to the claimant’s reputation, person or property.

In this tort, the law seeks to hold a balance between two opposing interests of

social policy, namely:

(a) the interest in safeguard ing persons from being harassed by unjusti able litiga-

tion; and

(b) the interest in encouraging citizens to assist in law enforcement by bringing

offenders to justice.

The courts have always tended to give more weight to the latter interest, with the

result that ‘the action for malicious prosecution is more carefully g uarded than any

other in the law of tort’,1 and the number of successful act ions is small.

In addition to the tort of malicious prosecution, there is, as the Privy Council

has conrmed, an analogous tort of maliciously procuring the issue and execution

of a search warrant.2 This is an instance of malicious institution of a process short

of actual prosecution.3 It is also established that an action in tort lies for the mali-

cious institution of bankruptcy or winding-up proceedings,4 and in the landmark

case of Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd,5 a majority of the

Privy Council has held, apparently contrary to established principle, that in certai n

circumstances a n action lies for malicious prosecution of civil proceedings.6

In the Commonwealth Caribbean, actions for malicious prosecution are often

combined with actions for false imprison ment. This will occur where C is rst

arrested on suspicion of having committed an offence and later charged and pros-

ecuted for the offence. If C is acquitted of the charge, he may sue the police ofcers

1 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Informat ion Services, p 597.

2 Gibbs v Rea (1998) 52 WIR 102 (PC appeal from the Caym an Islands), where it was held, by a major-

ity, that the police had no reasonable and pro bable cause to procure the issue of a search war rant

to search the cla imant’s home and place of work on suspicion of drug trafcki ng, in the absence of

any evidence of previous investigat ions or of any ‘tip off’ incri minating the claimant. Fu rther, if

the police had no sufcient g rounds for suspicion, yet satised the judge issui ng the warrant that

they did, then ‘to procure the wa rrant in that state of mind was to employ the cour t process for an

improper purpose’ (such as a ‘sh ing expedition’), which amounted to mal ice.

3 Another in stance is the maliciou s procuring of a warrant for t he claimant’s arrest: Roy v Pri or [197 1]

AC 470; Ramsarran v Attorney General of Trinidad and Tobago (2001) High Court, Trinidad and Tobago,

No S 1597 of 1986.

4 Quartz Hill Gold Mining Co v Eyre (1883) 11 QBD 674.

5 [2013] UKPC 17.

6 See pp.........

CHAPTER 3

MALICIOUS PROSECUTION

DOI: 10.4 324/9781 351065108 -3

10.4324/97813 5106 5108 -3

54 Commonwealth Caribbean Tort Law

who were responsible for the arrest and subsequent prosecution for both false

imprisonment and malicious prosec ution.

It is important to note the differences between the two causes of action. These

differences exist primarily because of the separate origins of the two torts, false

imprisonment being derived from the old writ of trespass and malicious prosecu-

tion from the action on the case. Thus:

(a) false impri sonment is actionable per se, that is, without proof of damage, whereas

in malicious prosecution damage must always be proved;7

(b) a defendant who is sued for false imprison ment must justify the imprison-

ment, for example, by establishing the defence of lawful arrest, whereas in mali-

cious prosecution the onus is on the claim ant to show that the prosecution was

unjustied;8

(c) in false imprisonment, a defendant must show that he had reasonable cause to

detain the claimant, whereas in malicious prosecution it is for the claimant to

show that he was prosecuted without reasonable cause and with malice;9

(d) a defendant who causes a magistrate or other judicial ofcer to issue a warrant

for the claimant’s arrest cannot be liable in false imprisonment for the subse-

quent arrest, but he may be liable for malicious prosecution or, where no pros-

ecution is instituted, for an ana logous tort.10

A straightforward example of a successful claim for both false imprisonment and

malicious prosecution is Rowe v Port of Spain City Council.11 Here, a stairway leading

to the rst oor of the Town Hall in Port of Spain was barred by a chain and a crash

barrier placed in front of it. The claimant, a clerk employed by the council, removed

the chain and bar rier and began to mount the stairway. As he did so, D, a constable,

also in the employ of the council, who was on duty as payroll escort, called out to

the claimant and told him not to use the stairway as the Mayor had given instruc-

tions that no one was to pass there. On the claimant’s refusal to comply with the

instruction, D arrested him, dragged him to the police charge room and later took

him to the magistrate’s court, where he was charged with assaulting D and using

obscene language. Both charges were dismissed by the magistrate. The claimant

sued D and the council for assault, false imprisonment and malicious prosecution,

and succeeded in all thre e torts. Crane J said:

I believe that the defendant, Corporal Da lrymple, was detailed for escort duty in con-

nection with the colle ction of the pay-roll on the morning of 24 July 1975. I reject the

evidence of Inspector Kerr to t he effect that he had detailed him t he duty of enforcing

a directive restr icting the use of the staircas e on the Knox Street entrance of the Town

Hall so as to exclude members of the public a nd the employees of the City Council

from using it … I nd … that the u nfortunate incident arose out of the ofciousness

of Corporal Dalrymple, who desisted f rom his detailed duty as pay-roll escort on that

7 See pp .........

8 Ramkissoon v Sorias (1970) High Court, Trinidad and Tobago, No 2170 of 1968; Jangoo v Gomez (1984)

High Court, Trinidad and Tobago, No 2652 of 1978.

9 Wills v Voisin (1963) 6 WIR 50.

10 Roy v Prior [1971] AC 470; Ramsarran v Attorney Ge neral of Trinidad and Tobago (2001) High Court,

Trinidad and Tobago, No S 1597 of 1986.

11 (1978) High Court, Trinidad and Tobago, No 1413 of 1976.