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As is well known, the loser in civil proceedings has to pay the winner’s legal costs. However civil cases, especially if they go to a full trial, can last for years. A defendant who gets dragged into such legal proceeding may suffer all kinds of other harm besides legal costs. Is compensation ever available for this?
One possibility is the tort of malicious prosecution. This tort is potentially committed where claims are brought without reasonable and probable cause and as a result of malice (for example where proceedings are brought by someone who knows they were without foundation or for some other illegitimate purpose).
It is already established that a claim for malicious prosecution can be brought in respect of criminal proceedings. Until recently it was less clear whether it was available for civil proceedings. On the one hand, it seems only fair that someone who has suffered loss in this way should be able to get compensation. On the other hand, however, the courts have not wanted to deter those who have valid claims or to create a situation where the aftermath of every trial involves endless satellite litigation.
The legal position has now been clarified by a Supreme Court decision in Willers v Joyce  UKSC 43. By a majority it was held that the tort of malicious prosecution is available in the case of civil as well as criminal proceedings.
This article is provided free of charge for information purposes only and is accurate as at October 2016. It does not constitute legal advice and no responsibility for the accuracy of the information and commentary set out in the article is assumed by Field Seymour Parkes LLP.