1|JKKT

UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 13A: LAW OF TORTS I

Lecturer - J. Kim Kyte-

Thomas

Attorney-at-Law.

WORKSHEET NUMBER 3

MALICIOUS PROSECUTION

DEFINITION

The tort is committed where the defendant maliciously and without reasonable and probable
cause initiates against the plaintiff a criminal prosecution which terminates in the plaintiff’s
favour and which results in damage to the reputation, person or property of the plaintiff.

REQUIREMENTS OF THE TORT

The Plaintiff must establish to the Court: -

1. That the law was set in motion against him on a criminal charge

2. That the criminal matter was determined in his favour

3. That the defendant set the law in motion in the absence of reasonable and probable cause

4. That the defendant was motivated by malice

5. The prosecution brought against him has caused damage to his fame, person or property.

See Khan v Singh (1960) 2 WIR 441 Fraser J (ag)

Wills v Voisin (1963) 6 WIR p 57

2|JKKT

Setting the Law in motion

The Plaintiff must show that the defendant was actively instrumental in setting the law in motion.

Danby v Beardsley (1880) 43 LT 603

Mohammed Amin v Bannerjee [1947] AC 322

Jhaman v Anroop [1951] LRBG 172

Termination of Prosecution in Plaintiff’s favour

The tort to be constituted requires absence of judicial determination of guilt.

Shiwmangal v Jaikaran and Sons Ltd [1946] LRBG 308

Herniman v Smith [1938] AC 305

Khan v Singh – A Nolle prosequi by the Attorney General is a sufficient termination of

proceedings for the purpose of grounding an action for malicious prosecution

Absence of Reasonable and Probable Cause

See the case of Hicks v Faulker (1878) 8 QDB 167 p.171 for a definition of the principle

Glinski v McIver [1962] AC 726

Hills v AG (1980) HC Trinidad and Tobago-The Plaintiff must show the real facts on which the
prosecution was instituted, it is not sufficient to show that the real facts established no criminal
liability against him unless it also appears that these facts were within the personal knowledge of
the defendant.

See also Albath v North Eastern Railway Co (1883) 11 QBD – Cave J:

“ If I go before the Magistrate with a case which appears to be good on the face of
it

…while all the time I know that the charge is groundless, then I should not have

Reasonable and probable cause for the prosecution.”

3|JKKT

Malice

Any improper purpose or any motive other than that of simply instituting a prosecution for the
purpose of bringing a person to justice.

Stevens v Midland Counties Rly Co (1854) 156 ER 480

Irish v Barry (1965) 8 WIR 177

Sibbons v Sandy (1965) 8 WIR p.182

Jhaman v Anroop

Damage

Wiffen v Bailey [1915] 1 KB 600

Rayson v South London Tramways Co [1893] 2 QB 304

Berry v British Transport Commission [1961] 1 QB 149