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House of Lords
Session 1999-2000
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Judgments - Gregory v. Portsmouth City Council


Lord Browne-Wilkinson Lord Nicholls of Birkenhead Lord Steyn Lord Hobhouse of Wood-borough Lord Millett








ON 27 JANUARY 2000


My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. I agree with it and for the reasons which he gives I would dismiss the appeal.


My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons he gives I too would dismiss this appeal.


My Lords,

    On this appeal the question is whether the tort of malicious prosecution is in law capable of extending to the malicious institution of domestic disciplinary proceedings by a local authority against a councillor.

The Disciplinary Proceedings

    In 1983 Mr. Gregory was elected a Conservative member of the Portsmouth City Council. He had earlier been employed by an estate agent. Complaints were received by the Council that while various matters affecting local properties were before committees of the Council, Mr. Gregory was involved directly or indirectly in dealings in the properties. The allegation was that Mr. Gregory had abused his position as a councillor by using confidential knowledge gained as a councillor for his personal advantage. In 1988 the Administrative Sub-Committee of the Council's Policy and Resources Committee investigated allegations that Mr. Gregory had acted in breach of the National Code of Local Government Conduct which the Council had adopted. Mr. Gregory disputed the allegation. The Administrative Sub-Committee found some of the allegations proved and recommended that Mr. Gregory be removed from various committees of which he was a member, and that he be suspended from membership of the committees for the remainder of his term as councillor. The Administrative Sub-Committee appointed a Special Committee to approve, reject, vary or amend the recommendations of the Administrative Sub-Committee. After hearing evidence the Special Committee found a number of breaches of the Code proved. On 30 December 1988 the Special Committee ordered that Mr. Gregory be removed from the committees of which he was a member. These events were widely reported in the newspapers.

The Divisional Court proceedings

    In March 1988 Mr. Gregory applied for Judicial Review. The Divisional Court (Mann L.J. and Brooke J.) quashed the decision in the disciplinary proceedings. The grounds upon the Divisional Court acted were:

    1) The Administrative Sub-Committee had acted ultra vires when it made its findings and recommendations. The Council had placed the matter for determination before the wrong committee.

    2) The proceedings of the Special Committee were null and void because it was convened on the premise that the recommendations of the Administrative Sub-Committee were lawful and they were not.

    3) The membership of the Special Committee was unfairly constituted because it included a councillor who had already expressed the view that Mr. Gregory was guilty.

A detailed narrative is contained in the judgment of the Divisional Court: Reg. v. Portsmouth City Council, Ex parte Gregory [1990] 2 Admin. L.R 681.

    In 1990 the Council resolved to institute the same disciplinary proceedings before another tribunal. The resolution was reported in newspapers. In July 1991 the Council decided to abandon the proceedings. In the meantime Mr. Gregory had ceased to be a councillor. The decision to abandon the proceedings was taken against the background of the fact that in May 1990 Mr. Gregory was convicted of two counts involving dishonesty for which he was sentenced to three months imprisonment suspended for two years concurrent on each count. These offences were in respect of over-claiming expenses as a councillor and were unrelated to the disciplinary proceedings.

The claim for damages for malicious prosecution

    On 4 March 1992 Mr. Gregory issued a writ claiming damages for malicious prosecution against the Council. The essential flavour of his case is conveyed by three allegations in the Statement of Claim. First, he alleged that there was no or insufficient evidence to justify the bringing of the disciplinary proceedings against him. Secondly, he alleged that the proceedings were motivated by political considerations, pursued by a combination of his political opponents and unscrupulous office seekers in his own party. Thirdly, he alleged that the Council knew that the proceedings could not lawfully be heard by the Administrative Sub-Committee. The pleaded Particulars of General Damage were as follows:

    "1) The Plaintiff has suffered very substantial loss of reputation and he and his family have suffered very considerable strain.

    2) He has been subjected to offensive and hurtful remarks in social and other situations.

    3) He lost his seat as a Councillor. Before that, he was barred from attending Council functions and was struck off the list of official candidates, meaning he had to stand as an independent unofficial candidate which put him to considerable expense which would otherwise have been born by his party.

    4) He and his family have all been variously subjected to gratuitous abuse in one form or another and this has greatly distressed the Plaintiff."

The pleaded Particulars of Special Damages were as follows:

    "Legal costs, particulars of which have been delivered: £2,000

    Personal expenses £150.00."

The Plaintiff further asserted damage to his employment prospects. He claimed aggravated and/or exemplary damages. It is important to note that the plaintiff's claim is for financial loss as well as injury to his reputation and feelings. The Council served a defence. By a Summons dated 14 May 1992 the Council applied for an order that the claim be struck out under R.S.C. Ord. 18, r. 19(1)(a), on the basis that it disclosed no reasonable cause of action.

    On 13 October 1992 the matter came before District Judge Naylor for hearing. He ordered the claim to be struck out. Mr. Gregory appealed to the judge in chambers. Tudor Evans J. heard the appeal at Winchester on 30 April 1993. In a reserved judgment, given on 27 May 1993, the judge held that the tort of malicious prosecution is confined to criminal proceedings and certain specific types of civil proceedings. He held that internal disciplinary proceedings fell beyond the limits of the tort. The judge dismissed the appeal but granted leave to appeal to the Court of Appeal.

    Mr. Gregory appealed to the Court of Appeal. By agreement the Court of Appeal dealt with the case as a preliminary issue arising under Ord. 33, r. 3. On 5 November 1997 by a majority (Simon Brown and Walker L.JJ.) the Court of Appeal dismissed the appeal: Gregory v. Portsmouth City Council (1998) 96 L.G.R. 569. Schiemann L.J. dissented. Simon Brown L.J. gave the leading judgment. He pointed out that on existing authority most but not all criminal proceedings, and certain specific civil processes, will ground the tort. He rejected an argument that the law should be developed beyonds these categories to extend the tort to disciplinary proceedings. He concluded, at p. 578:

    ". . . that the tort of malicious prosecution probably does not extend beyond the already established categories of civil and criminal proceedings, and certainly not as far as the proceedings of bodies like the council who are not merely not courts of law but are not even tribunals exercising functions equivalent to courts. One can perhaps see a public policy argument for extending the tort to embrace proceedings in the latter, covered as they are by absolute immunity. But I am by no means persuaded even of that, let alone of the desirability of a further extension still to cover this case."

In a separate judgment Robert Walker L.J. expressed agreement with the reasons of Simon Brown L.J. He too accepted that the present boundaries of the tort of malicious prosecution are not easy to justify. He said that the proposed extension is likely to lead to numerous practical difficulties, and was a matter for Parliament: at p. 595. In an important and valuable judgment Schiemann L.J. saw the matter differently. He observed [p. 593]:

    "Such rationale as there was for the various fine distinctions which we find in this branch of the law sprang from history and historical circumstances which no longer appertain. I see no advantage in retaining them. It is a commonplace of legal history that a rule is established for perfectly sensible reasons and yet is adhered to for years after the underlying reasons no longer apply.

    ". . . While of course I accept that the common law judge will look at how the law has developed from its origins, I myself find the concept of 'true scope' of a particular tort conceptually unhelpful in the sort of exercise upon which the court is currently engaged. As I have indicated, I prefer to start from the other end, as it were. In my judgment if the facts are as pleaded in the statement of claim it is consonant with the general approach of our law as it now stands that the plaintiff has a remedy. I can see no policy reason for not giving him one. . . . I prefer to be guided by principle than by dicta echoing down the generations."

These contrasting observations capture in some measure the essentials of the debate on the present appeal before the House.

The issues

    In the Statement of Facts and Issues the questions arising for decision were formulated as follows:

      "1) Do the following agreed and assumed facts give rise to a cause of action in malicious prosecution, namely:

      i) the agreed fact that disciplinary proceedings were instituted by a local authority against Mr. Gregory, a councillor; and

      ii) the assumed facts that the proceedings were instituted maliciously and without reasonable and proper cause, and that Mr. Gregory thereby suffered loss of reputation, injury to health, mental anguish and legal costs?

      2) Is there a general tort of maliciously instituted civil proceedings?

      3) Does the tort of malicious prosecution extend to the malicious institution of domestic disciplinary proceedings by a local authority against a councillor?

While he contended that in principle the tort of malicious prosecution should extend to all civil proceedings, counsel for Mr. Gregory submitted that even if this was not accepted, nevertheless the tort should extend to disciplinary proceedings on the ground that such proceedings are quasi criminal. Counsel invited your Lordships to develop the law in this way in the present case.

The law as it stands

    The paradigm is the tort of malicious prosecution of criminal proceedings. A distinctive feature of the tort is that the defendant has abused the coercive powers of the state. The law recognises that an official or private individual, who without justification sets in motion the criminal law against a defendant, is likely to cause serious injury to the victim. It will typically involve suffering for the victim and his family as well as damage to the reputation and credit of the victim. On the other hand, in a democracy, which upholds the rule of law, it is a delicate matter to allow actions to be brought in respect of the regular processes of the law. Law enforcement agencies are heavily dependent on the assistance and co-operation of citizens in the enforcement of the law. The fear is that a widely drawn tort will discourage law enforcement: it may discourage not only malicious persons but honest citizens who would otherwise carry out their civic duties of reporting crime. In the result malevolent individuals must receive protection so that responsible citizens may have it in respect of the hazards of litigation. The tort of malicious prosecution is also defined against the backcloth that there are criminal sanctions, such as perjury, making false statements to the police, and wasting police time, which discourage the mischief under consideration. Moreover, the tort must be seen in the context of overlapping torts, such as defamation and malicious falsehood, which serve to protect interests of personality.

    The enquiry must proceed from the premise of the law as it stands. The tort of malicious prosecution is narrowly defined. Telling lies about a defendant is not by itself tortious: Hargreaves v. Bretherton [1959] 1 Q.B. 45. A moment's reflection will show what welter of undesirable re-litigation would be permitted by any different rule. To ground a claim for malicious prosecution a plaintiff must prove (1) that the law was set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and proper cause, and (4) that it was malicious: Martin v. Watson [1996] 1 A.C. 74, 80. Damage is a necessary ingredient of the tort. This element of the tort was explained in a dictum of Holt C.J. in Savill v. Roberts (1698) 12 Mod. Rep. 208. Holt C.J. defined the interests protected by the tort as follows:

    "there are three sorts of damages, any one of which is sufficient to support this action. First, damage to [the plaintiff's] fame, if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses."

The result of this test of damages is that most, but not all, criminal proceedings are capable of satisfying the requirements of the tort. For example, it has been held that a conviction for pulling a communication cord on a train without reasonable cause does not damage the "fair name" of the person charged: Berry v. British Transport Commission [1962] 1 Q.B. 306.

    In English law the tort of malicious proceedings is not at present generally available in respect of civil proceedings. It has only been admitted in a civil context a few special cases of abuse of legal process. Sometimes these cases are described as constituting a separate tort of abuse, but in my view Fleming, The Law of Torts, 9th ed. (1998), p. 687 is correct in observing that they "resemble the parent action too much to warrant separate treatment." The most important is malicious presentation of a winding up order or petition in bankruptcy: Johnson v. Emerson (1871) L.R. 6 Ex. 674; Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674. In Quartz Brett L.J. justified the rationale of this special case on the ground that the defendant is "injured before he can show that the accusation made against him is false; he is injured in his fair name, even though he does not suffer a pecuniary loss": at 684. He drew a contrast: "it is not like an action charging a merchant with fraud, where the evil done by bringing the action is remedied at the same time that the mischief is published, namely at trial": at 684-685. It has long been recognised to be an actionable wrong to procure the issue of a search warrant without reasonable cause and with malice: Gibbs v. Rea [1998] A.C. 786. In Roy v. Prior [1971] A.C. 470 the House of Lords allowed an action by a plaintiff to proceed where the plaintiff alleged that the obtaining ex parte of a bench warrant, and his arrest, was an abuse of process inasmuch as the solicitor responsible acted without reasonable cause and maliciously. An action in tort will also be available for setting in train execution against property without reasonable cause and maliciously: Clissold v. Cratchley [1910] 2 K.B. 244. These instances may at first glance appear disparate but in a broad sense there is a common feature, namely the initial ex parte abuse of legal process with arguably immediate and perhaps irreversible damage to the reputation of the victim. There is another instance of a recognised head of actionable abuse of process, namely the malicious arrest of a ship: The Walter D Waller [1893] P. 202. In such a case the loss is merely financial. Moreover, the arrest can be lifted almost immediately upon giving of security for the claim. Such claims are a rarity. The traditional explanation for not extending the tort to civil proceedings generally is that in a civil case there is no damage: the fair name of the defendant is protected by the trial and judgment of the court. The theory that even a wholly unwarranted allegation of fraud in a civil case can be remedied entirely at trial may have had some validity in Victorian times when there was little publicity before the trial: see Little v. Law Institute of Victoria [1990] V.R. 257. However realistic this view may have been in its own time, it is no longer plausible. In modern times wide dissemination in the media of allegations in litigation deprive this particular reason for a restricting the tort to a closed category of special cases of the support of logic or good sense. It is, however, a matter for consideration whether the restriction upon the availability of the tort in respect of civil proceedings may be justified for other reasons.

    In English law the tort of malicious prosecution has never been held to be available beyond the limits of criminal proceedings and special instances of abuse of civil legal process. Specifically, it has never been extended to disciplinary proceedings of any kind. On the contrary, it has been stated by the House of Lords that this tort does not extend to disciplinary proceedings. The point arose in Calveley v. Chief Constable of the Merseyside Police [1989] A.C. 1228. The House held that there was no common law duty of care owed by a chief constable to a police officer who was the subject of disciplinary proceedings. Lord Bridge of Harwich, speaking for a unanimous House, observed: "Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation": at 1238F. In other words, Lord Bridge observed that since the tort of malicious prosecution is unavailable it follows a fortiori that in action in negligence does not lie. Having mentioned the Calveley case, which was not cited in argument, I entirely accept that on this appeal the correctness of the observation by Lord Bridge must be considered.

The argument for a development of the law.

    Counsel submitted that the existing boundaries of the tort fail a test of rationality. He adopted the following passage in Salmond and Heuston on the Law of Torts, 21st ed. (1996), p. 393:

    ". . . there seems to be no reason why an action should not lie for the institution of unfounded and malicious proceedings before a court-martial, or some administrative or domestic tribunal. The adverse decision of such a body may cause serious damage to the reputation or livelihood of the party accused."

Counsel also cited other academic criticism of the existing law: see Fleming, The Law of Torts, pp. 675-676; Winfield and Jolowicz on Tort, 14th ed. (1994), pp. 581-582. He argued that it would be better not to concentrate on types of proceedings in which groundless allegations are made but rather on the fact of malicious and unwarranted abuse of any proceedings resulting in serious damage to an individual. In support of the feasibility of such a development he drew attention to the development of the tort of malicious prosecution in the United States as described in The American Law Institute, Restatement of the Law, Torts, 2d (1977). Section 674 extends the tort to all civil proceedings. It reads as follows:

    "One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if

      "(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and

      "(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought."

Section 680 extends the tort to proceedings before administrative boards. It reads as follows:

    "One who takes an active part in the initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other, is subject to liability for any special harm caused thereby, if

      "(a) he acts without probable cause to believe that the charge or claim on which the proceedings are based may be well founded, and primarily for a purpose other than that of securing appropriate action by the board, and

      "(b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.

He cited a decision in a United States state court as an example of the extended application of the tort: DeLaurentis v. City of New Haven (1991) 597 A 2d 807 (Conv. 1991). In the DeLaurentis case a former official in charge of municipal parking against whom disciplinary proceedings were brought and subsequently abandoned was held to be entitled sue for malicious prosecution of the disciplinary proceedings. The court observed that section 680 of the Restatement (Second) is now accepted by most courts in the United States: at 819. see also Melvin v. Pence (1942) 130F. 2d 323; Donovan v. Barnes (1976) 274 Or. 701. Counsel invited your Lordships to develop English law along these lines.

    The Restatements are prestigious and influential publications which are often cited by appellate courts throughout the Commonwealth. As recently as 1995 the House relied on The Restatement of the Law, Torts, 2d (1997) in regard to the tort of malicious prosecution: Martin v. Watson, supra, at 84E-H. For my part the citations from the Restatement on the present appeal must be accorded considerable weight. On balance though it seems realistic to take into account that the difference in the in the way in which the tort of malicious prosecution has developed in the United States and England is to a considerable extent the result of structural differences between the two legal systems. In England the award of costs in the discretion of the court is an important weapon in deterring groundless actions. But in the United States there is no such general judicial power. By the beginning of the nineteenth century "costs had ceased to perform the function for which they had been designed - deterring false suits - and the inherited system collapsed.": William C Campbell, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 1979, Vol. 88. The Yale L.J. 1218 at 1229. The fact that Courts in the United States do not have a general power to award costs against a plaintiff who has brought a groundless claim is a significant difference. In the United States the absence of a general judicial power to award costs in respect of a groundless claim apparently played a part in the development and extension of the tort of malicious prosecution to all civil proceedings: Neil Gold, Controlling Procedural Abuses: The Role of Costs and Inherent Judicial Authority, 1977, 9:44 Ottawa L.R. 44; William C. Campbell, ibid. And that was the springboard for the extension of the tort to administrative tribunals. In these circumstances the development in the United States, while undoubtedly relevant to the issue before the House, must be seen in the light of two legal systems which in material respects diverge. It does not necessarily follow, however, that a similar development is not justified in the context of the particular circumstances and needs of our legal system. That question still remains to be considered.

The respondent's argument of symmetry

    Counsel for the respondent produced what he described as a decisive argument against the proposed development of the tort. He argued that the tort of malicious prosecution is not available where the absolute privilege or immunity which characterises legal proceedings is absent. He appeared to argue that without absolute privilege being first established no further development of the limits of tort is possible. I entirely accept that a coherent development of the law, taking into account the limits of the tort of malicious prosecution as well as the recognised categories of immunity, is desirable. But this is not a knock-down argument. One development may follow the other. In any event, as Simon Brown L.J. pointed out, the immunity has been extended to tribunals exercising functions equivalent to courts of law: see O'Connor v. Waldron [1935] A.C. 76, 81; Addis v. Crocker [1961] Q.B. 11. In my view the argument of symmetry is a relevant but far from decisive factor against the development suggested in this case.

The argument that disciplinary proceedings are quasi criminal

    It is now opportune to turn directly to the principal submission of counsel for Mr. Gregory. He argued that disciplinary proceedings are quasi criminal in concept and involve severe penalties affecting the lives and livelihoods of individuals. Accordingly, he argued, even if the tort is not extended to all civil proceedings, it should be extended to disciplinary proceedings. When the argument was tested he accepted that the submission was too broad. He acknowledged that there are disciplinary proceedings which by reason of their informality should fall outside the scope of the tort, e.g. a disciplinary committee of a tennis club. A problem of classification therefore arises. There is a great diversity of statutory and extra-statutory disciplinary proceedings: see a comparative survey in Harris, Law and Practice of Disciplinary and Regulatory Proceedings, 2nd ed., (1999) Appendix G, pp. 490-540. At the one end of the spectrum one has the formalised procedures of the Professional Conduct Committee of the General Medical Council, which are subject to an appeal to the Privy Council, and the Solicitors' Disciplinary Tribunal, which are subject to an appeal to the Divisional Court or the Master of the Rolls depending on the case. At the other end one has the informal procedures of social and sports clubs. The purpose of the proceedings also vary. The purpose of disciplinary proceedings is sometimes quasi criminal, e.g. against a professional man on the ground that he has cheated his client. Sometimes the purpose is simply the protection of the public, e.g. an adjudication of a Health Committee of the General Medical Council on an issue as to whether a doctor is mentally fit to practise medicine. And often both purposes are present. Against this diverse background the solution of leaving it to the courts to decide on a case-by-case basis what disciplinary proceedings may ground the tort may plunge this area of the law into uncertainty.

Given that the tort has never in England been held to extend beyond legal proceedings the proposed development would be a radical reform. Moreover, it is significant that, counsel have been unable to find any decided cases in Australia, Canada, and New Zealand which extend the tort to disciplinary proceedings. While the modern tort books published in these countries almost universally criticise the rule, or apparent rule, precluding actions for malicious prosecution in civil proceeding, there is no hint of any development of the boundaries of the tort beyond legal proceedings, or any call for such a development: see Fleming, The Law of Torts 9th ed., (1998), pp. 673-688; Balkin, Law of Torts, 2nd ed. (1996), pp. 709-723 (Australia); Klar, Tort Law, 2nd ed., (1996), pp. 55-61 (Canada); Todd, The Law of Torts in New Zealand, (1997), pp. 980-1002. The absence of such authority in Commonwealth countries with legal systems more akin to ours than the United States system may justify an initial scepticism as to the need and feasibility of such a reform.