The Supreme Court has allowed a “leapfrog” appeal by Peter Willers against a decision of Amanda Tipples QC (sitting as a deputy Judge of the Chancery Division) striking out a claim for malicious prosecution by Albert Gubay (who died before the appeal was heard) of proceedings by Langstone Leisure Limited against Mr Willers.
Amanda Tipples QC had treated herself as bound by the decision in Gregory v Portsmouth CC  AC 419 to the effect that malicious prosecution of civil proceedings was not actionable in English law.
Langstone had brought proceedings against Mr Willers, a director, for damages for breach of his duty to the company. Mr Willers defended on the ground that his alleged breaches were on the instructions of Mr Gubay who controlled the company as shadow director. Hugo Page QC and Adam Chichester-Clark acted for Mr Willers. Langstone abandoned the proceedings shortly before trial. Mr Willers then commenced proceedings against Mr Gubay for malicious prosecution of the Langstone action, relying on the decision of the Privy Council in Crawford Adjusters v Sagicor  UKPC 17 (an appeal from the Cayman Islands) to the effect that malicious prosecution of civil proceedings is actionable in English law. The claim was struck out at first instance following Gregory rather than Sagicor, but on a “leapfrog” appeal a Supreme Court panel of nine (by a 5/4 majority) allowed Mr Willers’appeal and decided that malicious prosecution of civil proceedings is actionable.
In a second judgment, the Supreme Court decided unanimously that, though the ordinary rule was that decisions of the Judicial Committee of the Privy Council (JCPC) are not binding, the JCPC could in an appropriate case direct that a decision it made as to English law was to be binding on the English Courts and could overrule a previous decision to the contrary by the Supreme Court, House of Lords or Court of Appeal.
The full judgments can be read here:
Hugo Page QC acted for Mr Willers (with John McDonnell QC and Adam Chichester-Clark).