Judgments - Gregory v. Portsmouth City Council

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    Any extension of the tort of malicious prosecution would have to take account of a number of other torts which are capable, depending on the circumstances, of protecting the complex of interests of an individual damaged by disciplinary proceedings mounted without justification and maliciously. The first is the tort of defamation which serves to protect the reputation of individuals. In the case before the House there were publications which might have been the subject matter of an action for defamation. It is true that qualified privilege would be a defence to such a claim but that defence can be defeated by proof of malice. In cases of groundless disciplinary proceedings the victim's main complaint will often be about the injury done to his reputation by the publicity given to the proceedings. This is therefore a relevant alternative remedy. The second tort to be considered is malicious falsehood. This tort is broader than defamation in the sense that recovery of damages is permitted even where there is no loss of reputation, e.g. where a defendant dishonestly tells the customers of the plaintiff that the plaintiff has ceased trading. Counsel for Mr. Gregory submitted that this was not an effective remedy for somebody like Mr. Gregory since recovery of damages for injury to reputation is not recoverable under this tort. And Mr. Gregory seeks damages for injury to his feelings and reputation. Since the hearing of the appeal in the House the Court of Appeal has held that aggravated damages are recoverable in an action for malicious falsehood: Khadaparast v. Shad., The Times 1 December 1999. While it is unnecessary to express a firm view on this decision in the present case it illustrates the potential of torts other than malicious prosecution to develop. The third tort is conspiracy. Having regard to the way in which the case has been pleaded this may have been an alternative remedy. But this tort does not allow for the recovery of injury to reputation or injury to feelings. It is primarily designed to provide for the recovery of financial loss: Lonrho Plc. v. Fayed (No. 5) [1993] 1 W.L.R. 1489. And losses of reputation are a major part of Mr. Gregory's claim. There is force in counsel's argument that it was not a realistic alternative. The fourth tort is misfeasance in public office. This tort involves an element of dishonest abuse of a public office: see Jones v. Swansea City Council [1990] 1 W.L.R. 1453 at 1458; Racz v. Home Secretary [1994] 2 A.C. 45; Bourgoin S.A. v. Ministry of Agriculture Fisheries and Food [1986] Q.B. 716, C.A. Mr. Gregory asserts that the council knew that they were acting beyond their power. It may have been a possible alternative remedy. But I prefer to express no view on the contours of this tort It is the subject matter of another appeal to the House and, in any event, it does not affect the disposal of the present appeal.

    So far I have looked at the matter from the point of view of Mr. Gregory's allegations. But a broader approach is required. One must consider the generality of cases of groundless disciplinary proceedings. For my part the existence of closely related torts, which protect individuals subjected to unwarranted and malicious proceedings disciplinary proceedings, destroys the simplistic case that there is no alternative remedy. Indeed, it makes it unnecessary and undesirable to make the extension of the tort malicious prosecution advocated by counsel. If the existing protection afforded to such victims by other torts is shown by the experience of the courts to be inadequate a better solution may be the development of other torts, such as the Court of Appeal undertook in Khadaparast v. Shad. For these reasons I would hold that the tort of malicious prosecution does not extend to disciplinary proceedings. This conclusion is reinforced by the observations of Lord Bridge of Harwich in the Calveley case.

The extension of the tort to civil proceedings

    My Lords, it is not necessary for the disposal of the present appeal to express a view on the argument in favour of the extension of the tort to civil proceedings generally. It would, however, be unsatisfactory to leave this important issue in the air. I will, therefore, briefly state my conclusions on this aspect. There is a stronger case for an extension of the tort to civil legal proceeding than to disciplinary proceedings. Both criminal and civil legal proceedings are covered by the same immunity. And as I have explained with reference to the potential damage of publicity about a civil action alleging fraud, the traditional explanation namely that in the case of civil proceedings the poison and the antidote are presented simultaneously, is no longer plausible. Nevertheless, for essentially practical reasons I am not persuaded that the general extension of the tort to civil proceedings has been shown to be necessary if one takes into account the protection afforded by other related torts. I am tolerably confident that any manifest injustices arising from groundless and damaging civil proceedings are either already adequately protected under other torts or are capable of being addressed by any necessary and desirable extensions of other torts. Instead of embarking on a radical extension of the tort of malicious prosecution I would rely on the capacity of our tort law for pragmatic growth in response to true necessities demonstrated by experience.


    My Lords, for these reasons I would dismiss the appeal.


My Lords,

    I agree that this appeal should be dismissed as proposed by my noble and learned friend Lord Steyn and for the reasons which he has given.


My Lords,

    I have the greatest difficulty in accepting the proposition that membership of a Committee or Sub-Committee of a local authority is a legally protected interest. This would, however, have been an unduly narrow ground on which to decide the important issues which arise in this appeal. I prefer to dismiss it for the reasons given by my noble and learned friend Lord Steyn, which I have had the advantage of reading in draft and with which I find myself in complete agreement.


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