Malicious Prosecution: Extension of the Tort to Civil Proceedings

In July 2016, the UK Supreme Court delivered its decision in Willers v Joyce & Anor [2016] UKSC 43, and, by 5:4 majority, held that the tort of malicious prosecution of civil proceedings is sustainable under English law.

Before Willers, the tort of malicious prosecution was traditionally limited to the malicious prosecution of criminal proceedings, potentially providing redress to a party who had successfully defended such proceedings. The malicious prosecution of civil proceedings had been potentially available in limited situations - often involving immediate damage, such as presenting a winding-up petition, but not the disciplinary proceedings of a City Council, such in Gregory v Portsmouth City Council [2000] 1 AC 419, where Lord Steyn had not been persuaded that extending the tort to civil proceedings generally was necessary.

Willers followed soon after Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366, where, by 3:2 majority, the Privy Council (on appeal from the Cayman Islands), held that bringing a claim based on the malicious prosecution of civil proceedings is within the scope of the tort of malicious prosecution. Lord Wilson delivered the leading judgment.

Willers resolved the tension between Gregory and Crawford, and confirms the extension of the tort under English common law to both civil and criminal matters.

Hong Kong position

Shortly before Willers, the Hong Kong Court of Appeal (Pathak Ravi Dutt v Sanjeev Maheshwari) (CACV 129/2014, 14/12/2015) summarised the essential elements for a plaintiff to prove in an action for malicious prosecution, one being that the plaintiff was prosecuted by the defendant, ie, the law was set in motion against the plaintiff by the defendant “on a criminal charge.”

Since then, and in light of Willers, the Hong Kong courts have considered the application of the tort of malicious prosecution to civil proceedings. In Sum Cheung Wai v Tsui Hin Yuet (CACV 57/2016, 26/08/2016), the Court of Appeal noted Crawford, Gregory and Willers, and commented in passing that the matter was one of current debate, although it did not arise directly in that case.

In Yanfull Investments Ltd v Datuk Ooi Kee Liang (HCA 687/2015, 15/04/2016), Chan J heard a summons to set aside an order granting leave to serve the writ out of the jurisdiction. The summons alleged that in its ex parte application, Yanfull had not shown a serious question to be tried on the malicious prosecution of civil proceedings. Chan J noted Crawford, and held that there was not enough material to “hold that this cause of malicious prosecution is so devoid of merit that I can strike it out”, striking out the claim on limitation grounds instead.

By the time the appeal was heard, Willers had been delivered and the parties and Court seemed to pre-suppose that the cause of action exists in Hong Kong (CACV 114/2016, 15/03/2017). Yanfull lost the appeal, and applied to the Court of Appeal for leave to appeal, asking, inter alia, if the common law of Hong Kong included the tort of the malicious prosecution of civil proceedings - the Court of Appeal holding that this was academic, given the strike out was on limitation grounds (CACV 114/2016, 02/06/2017).

In Chua, Grace Gonzales v Sobrevilla, Rhennie Boy Fernandez (DCCJ 3750/2015, 24/08/2017), Her Honour Judge Winnie Tsui noted the developments in Sum Cheung and Yanfull, and observed that there seems to be an implicit acceptance that the malicious prosecution of civil proceedings is “a viable tort in Hong Kong.”


A claim for malicious prosecution is actionable on proof of some identifiable damage.

In Crawford, the Court allowed general damages for distress, hurt and humiliation, and held that a claimant should be able to recover “damages for foreseeable economic loss beyond out-of-pocket expenses.”

In Willers , the majority had no difficulty in heads of damage for damage to reputation, health, and earnings, and allowed Mr Willers’ claim to recover the difference between legal costs incurred in defending the initial claim (£3.9m) and the amount recovered under the costs order (£1.7m) to go to trial, broadly as that action had been discontinued shortly before trial and the Court had not considered allowing indemnity costs.


Lord Mance noted in Willers that claims for malicious prosecution were virtually extinct in England. In both Crawford and Willers, the law did not otherwise afford a remedy to the claimants who had been subjected to the malicious prosecution of civil proceedings, and the extension of the tort may provide helpful redress for Hong Kong plaintiffs who have been subjected to the malicious prosecution of a civil action.

Of notable interest is that the new boundaries of the expanded tort are still to be explored - Lords Mance and Neuberger, who each gave dissenting judgments in Willers, suggested that logically the tort could extend to a malicious defence, or to an individual application or step in litigation, to family court or even to arbitral proceedings. 

However, those possible expansions notwithstanding, succeeding in a claim for malicious prosecution will be difficult. The majority in Willers noted that a claimant must prove an “absence of reasonable and probable cause”, and that “the defendant did not have a bona fide reason to bring proceedings”, which “means that the claimant has a heavy burden to discharge.”


Senior Associate, Hill Dickinson Hong Kong

Mitchell Birks is a senior associate in the global litigation and dispute resolution practice of Hill Dickinson Hong Kong, and is qualified in Queensland, Australia (non-practicing) and Hong Kong.

He has particular experience in Hong Kong in a range of matters such as shareholder's disputes, defamation, employment matters, and insolvency-related matters, along with commercial disputes involving a range of causes of action.