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A Tort is Born: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings

James Goudkamp, ‘The Birth of a Tort: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings’ (2017) (June) New Law Journal

Oxford Legal Studies Research Paper No. 59/2017

2 Pages Posted: 19 May 2017 Last revised: 16 Nov 2017

James Goudkamp

University of Oxford - Faculty of Law

Date Written: May 18, 2017

Abstract

The law of torts periodically spawns a new cause of action. For example, Wilkinson v. Downton [1897] 2 QB 57 established the tort of wilful infringement of personal safety. The Protection from Harassment Act 1997 created the tort of harassment. Tort law sometimes also grows by absorbing a cause of action that was previously understood to pertain to another branch of the law. Thus, the action in breach of confidence, which was for centuries understood exclusively as a species of equitable wrongdoing, has been acknowledged, at least in cases that involve a breach of privacy as opposed to the divulgement of secret information, as a “tort” (see, e.g., Douglas v. Hello! Ltd [2007] UKHL 21; [2008] 1 AC 1 [255] (Lord Nicholls)). The newest addition to the stable is the tort of malicious prosecution of civil proceedings. The Supreme Court recognised that action in its landmark decision in Willers v. Joyce [2016] UKSC 43; [2016] 3 WLR 477. In doing so, the Court thereby gave the ancient tort of malicious prosecution of criminal proceedings a sibling. This article addresses the decision in Willers.

Keywords: tort, malicious prosecution, costs, fraud, personal injury

JEL Classification: K41, K13

Suggested Citation

Goudkamp, James, A Tort is Born: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings (May 18, 2017). James Goudkamp, ‘The Birth of a Tort: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings’ (2017) (June) New Law Journal; Oxford Legal Studies Research Paper No. 59/2017. Available at SSRN: https://ssrn.com/abstract=2970444

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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