LAW OF TORTS II

Lecture 5
Revise…
• What is the difference between strict liability and absolute liability?
• What are the essentials for strict liability?
Malicious prosecution…
• The institution of false criminal/bankruptcy/liquidation proceedings
against an individual that are motivated out of malice and are not
supported by any element of reasonability or probability.
• To assert the contention of malicious prosecution, the plaintiff has to
establish that the act by the defendant has all the components that are
imperative to establish liability in such cases. They are enumerated below:
– 1. The defendant must have instituted a false proceeding against the plaintiff.
– 2. The proceedings so instituted were as a result of sheer malice and must not
have any element of reasonableness or probability.
– 3. The end result of such proceedings must necessarily be in the favour of
plaintiff, be it acquittal or suspension of the suit.
– 4. It is for the plaintiff to prove that these proceedings have arbitrarily interfered
with his liberty and has led to adverse ramifications on his/her reputation in the
society.
Prosecution by the defendant…
• It has to be presented that the prosecution was initiated against the
plaintiff as a result of arbitrary proceedings by the defendant.
• it is a commonly held principle that any disciplinary action by an
authority cannot be regarded as prosecution by a judicial authority
thus it cannot be subjected to the suit of malicious prosecution
• In an Indian case of Khagendra Nath v. Jacob Chandra, the court ruled
that prosecution cannot be said to have begun at the stage where the
complaint was made before a competent (executive) authority.
Lack of reasonability or probability in
plaintiff’s prosecution…
• It is imperative that in such cases, the complaint made must lack the intent of
bringing justice to the defendant and that the defendant must have acted out of
malice without any substance in the allegations. It must be noted here that the term
‘malice’ is not limited to mere ill- feelings or hatred towards a person but also
covers any immoral/improper cause that can result in causing wrongful damage to
the plaintiff such as to gain leverage.
• Such an assessment must be made from the point of view of a reasonable man. It is
also crucial to state that even if at the beginning of the proceedings, the defendant
was unaware of plaintiff’s innocence, malice in such cases can be deemed to be
present since the moment, the defendant comes to know of the innocence of the
plaintiff and still he/she continues with the proceedings which are false in nature.
The onus to prove such malice would lie on the prosecution.
• Furthermore, if it is proved in due course of trial that the even though the defendant
possessed hard-feelings towards the plaintiff, the complaint was reasonable on the
basis of it being probable that the plaintiff had indeed wronged the defendant, then
in such a scenario no suit for malicious prosecution can be made possible.
Termination of the prosecution in the favour
of Plaintiff…
• The case of malicious prosecution under Law of Torts can only be
pleaded in successful termination of the proceedings in the favour of
the plaintiff. It can be in the way of either the plaintiff’s acquittal or
the suspension of any further proceedings against him. It is must also
be noted that the termination of such proceedings against the plaintiff
doesn’t necessarily represent his innocence but merely states that
he/she hasn’t been convicted in lieu of the charges brought him/her.
This position was stated in the case of Gilchrist v. Gardner.
• Two exceptions to this rule:
– a) When the plaintiff and the defendant have reached a settlement resulting
in withdrawal of the allegations made against the plaintiff.
– b) A plea bargain in criminal cases cannot be termed as a termination in the
favour of the plaintiff.
Damages to be accrued by the plaintiff as a
result of the wrongful prosecution…
• The last requirement to fulfil all the components of malicious
prosecution under Law of Torts is that the plaintiff must have accrued
certain harm/injury (damage) as a result of the prosecution that
terminated in his/her favour. This harm must be foreseeable and
should not be extremely remote. The categorization of this harm was
first stated by Holt CJ in the case of Savile v. Roberts:
– a) Damages in respect of harm to the plaintiff’s reputation – If the suit has
led to tainting of the reputation of the plaintiff in the eyes of the right-
thinking members of the society through unnecessary allegations then the
damages for the same can be demanded.
– b) Damages in respect of harm to the plaintiff’s body – When the
proceedings have hampered the liberty of the plaintiff or have led to fear of
injury then the damages for the same are recoverable.
– c) Damages in respect of harm to the plaintiff’s property – The charges
borne by the plaintiff to fight a suit for his acquittal are recoverable if the
proceedings terminate in his favour and on the ground of arbitrary
complaint.
Defences against Malicious Prosecution…
• When the plaintiff is at fault – if the proceedings instituted against the
plaintiff result in conviction based on his/her being guilty of the
charged levied then such a person loses the right to sue the
defendant. The only remedy the plaintiff has will be of appeal against
the verdict.
• When the defendant is in possession of some privilege– The privilege
may be in the form of judicial or statutory immunity.
• To sum up, the suit of malicious prosecution serves two purpose. The
first being that it enables the plaintiff to sue the defendant, the person
who had wrongfully instituted case with no probable cause. The
Second purpose is that it leads to protection of one’s liberty and
reputation not only through way of damages but also through creating
a deterrent effect on the wrongdoer.
Damages…
• Economic Damages:
• Legal fees.
• Lost wages.
• Cost of defense.
• Financial penalties.

• Non-Economic Damages:
• Emotional distress.
• Reputational harm.
• Psychological trauma.
• Loss of professional opportunities.
Difference Between Malicious Prosecution
and Wrongful Civil Proceedings (Abuse of
Power)…
• The distinction between prosecution inspired by malice and the act of
abuse of power is of considerable significance so as to ascertain the
liability. This distinction was dealt in case of West Bengal State
Electricity Board v. Dilip Kumar Ray wherein the Apex Court
(Supreme Court of India) held that the former refers to instituting a
process out of malice while the latter refers to process to obtain one’s
motive by legal means for purpose other than the one it was intended
for.
• The prima facie elements of the action:-
– (i) The wrongful use of the process for an ulterior motive
– (ii) Some definite act or threat against P to accomplish ulterior purpose

• Abuse of process is not the wrongful institution of the action or