ARTICLES
per se would not be a principled reason to deny a remedy to the injustice faced by defendants of malicious civil suits.
the United States.34 Equally, since a successful defendant of a groundless civil suit would be awarded costs, this would minimise the financial damage suffered.
ii. Necessity/Duplication of remedies argument A related argument advanced is that defendants of malicious civil suits may rely on other existing “legal mechanisms” or civil procedure rules27 – principally costs awards.28 Accordingly, extending the tort of malicious prosecution to civil proceedings is unnecessary since it would create a “duplication of remedies”.29 However, in reality, these remedies have proven inadequate or completely non-existent. As the Supreme Court in Willers v Joyce noted, the principal reason given by Lord Steyn in Gregory for not extending the tort was that “any manifest injustice arising from groundless and damaging civil proceedings” was already sufficiently protected under “other torts”.30 Yet, the facts in Gregory, Crawford Adjusters and Willers v Joyce plainly disprove this – in all cases the claimant had in fact no other means of legal recourse. Thus, Lord Steyn’s proposition that the existence of “other torts”31 provides an adequate remedy is “hardly true”32 since no alternative remedies exist. The duplication argument should thus be rejected. Alternatively, it was suggested in Tat Development33 and by Lord Neuberger in Crawford Adjusters that costs awards provided a mechanism for addressing the injustice suffered. In his dissenting judgment in Crawford Adjusters, Lord Neuberger concluded that the availability of the tort in the United States was due to the fact that in the U.K. (and indeed in Singapore) the losing party paid the winning party’s costs and this was a sufficient deterrent to baseless claims, whereas no equivalent mechanism existed in
27 28 29 30 31 32 33
Tat Development (n1) [121] Tat Development (n1) [120] Willers (n2) [47] Willers (n2) [47] Gregory (n13) [422] Todd (n3) 124 Tat Development (n1) [120]
However, as Todd notes, this “ignores the reality” that a costs award is “unlikely to be an adequate compensation” for the actual costs incurred.35 In Willers v Joyce, the defendant of the malicious suit incurred £3.9m of legal expenses, yet was only awarded £1.7m. The result is that where innocent defendants are forced to engage in lengthy and costly litigation, he is bound to suffer substantial injustice. As the Singapore Court of Appeal conceded, even an award of costs on an indemnity basis “does not furnish a complete remedy” but only a “partial” one.36 Thus, to echo the words of Lord Toulson, the notion that a costs order “necessarily made good the injury” caused by malicious prosecution was “almost certainly a fiction”.37 iii. Floodgates/finality argument Another policy argument advanced by the Singapore Court of Appeal and the minority in Willers v Joyce is that allowing a tort of malicious prosecution of civil proceedings might encourage substantial “satellite litigation”††† and in so doing undermine the principle of finality in the law.38 These concerns are speculative. In Crawford Adjusters, Lord Kerr observed that evidence of an “avalanche of litigation” was “conspicuously missing”.39 Equally, the Singapore Court of Appeal acknowledged that empirical analysis of Ontarian jurisprudence demonstrated that extending the tort had not generally opened the floodgates of litigation.40 Thus, inasmuch as one could argue that extending the tort might encourage further 34 35 36
Crawford Adjusters (n10) [165] Todd (n3) 124 Tat Development (n1) [120]
37 Willers (n2) [58] ††† meaning a separate lawsuit connected to and concerning a main lawsuit. For example, a trial adjudicating on the admissibility of certain evidence in a criminal case. 38 39 40
Tat Development (n1) [105] Crawford Adjusters (n10) [108] Tat Development (n1) [114]
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