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MALICE AS AN INGREDIENT OF TORT LIABILITY

Published online by Cambridge University Press:  10 May 2019

John Murphy
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Abstract

This article is concerned with the question of whether malice is an appropriate touchstone of liability in tort law. It begins by identifying four torts in which malice may properly be regarded as an ingredient of liability (distinguishing various other torts, such as private nuisance and defamation, in which malice plays a merely secondary and contingent role). Having identified these four torts – namely malicious prosecution, abuse of process, misfeasance in a public office and lawful means conspiracy – the article then seeks to identify a common juridical thread which links them together. So doing serves to rebut the allegation, often made in respect of all them, namely, that they are anomalous actions. It then concludes by considering the individual worth of these torts, bearing in mind the important difference between not being anomalous on the one hand, and being positively meritorious on the other. It concludes that a respectable defence of each of the four torts can be made even though malice is an atypical touchstone of liability.

Keywords

maliceintentional tortsconspiracymalicious prosecutionmalicious falsehoodmisfeasance in public office
Type
Articles
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The Cambridge Law Journal , Volume 78 , Issue 2 , July 2019 , pp. 355 - 382
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Copyright © Cambridge Law Journal and Contributors 2019 

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Footnotes

*

Lancaster University. I am grateful to Peter Cane and Nick McBride for their comments on a draft. Thanks are also due to Roderick Bagshaw and William Lucy for informal discussion of some of the issues tackled in this article. It is dedicated to Rebecca Lee. I doubt I'll ever be able to repay the debt that I owe her.

References

1 It is arguable that this tort can be divided into two: cases in which D maliciously initiates legal proceedings in the strict sense, and cases in which D maliciously instigates a process short of this, e.g. maliciously procuring an arrest warrant (Roy v Prior [1971] A.C. 470) or a search warrant (Gibbs v Rea [1998] A.C. 786). Either way, all cases of abuse of process are different from cases of malicious prosecution. The latter (but not former) tort requires D's initial action to have been abandoned or to have ended in C's favour before it can be invoked.

2 One exception is Arthur Ripstein. He, however, fails to distinguish those torts in which malice plays a secondary and contingent role from those in which it forms an essential ingredient of the action: see Ripstein, A., Private Wrongs (Cambridge, MA 2016), ch. 6CrossRefGoogle Scholar.

3 See e.g. Ormsby, W.E., “Malice in the Law of Torts” (1892) 8 L.Q.R. 140, at 149Google Scholar: “[t]he cases in which [malice is essential are] … exceptional, and … anomalous”; Chamberlain, E., “Misfeasance in a Public Office: A Justifiable Anomaly within the Rights-Based Approach?” in Nolan, D. and Robertson, A. (eds.), Rights and Private Law (Oxford 2012)Google Scholar; Lonrho Ltd. v Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173, 188, per Lord Diplock: “conspiracy is a highly anomalous cause of action”; Crawford Adjusters Ltd. v Sagicor Insurance Ltd. [2013] UKPC 17, [2014] A.C. 366, at [145], per Lord Sumption: “malicious prosecution is in modern conditions an anomalous tort.”

4 The liability bases of torts vary from strict liability to torts requiring intention. Yet others require fault of a kind that falls short of intentional wrongdoing.

5 Various, relatively rare remedies – such as quia timet injunctions, gain-based damages, aggravated damages and exemplary damages – are available in tort law. Furthermore, they are sometimes available in respect of a handful of torts when the usual tort remedy of compensatory damages is not available. For a full exposition of the remedial heterogeneity of tort law (and the absence of a default remedy which unifies torts), see Murphy, J., “The Heterogeneity of Tort Law” (2019) 39 O.J.L.S. (forthcoming)Google Scholar.

6 Most torts are bilaterally structured. Some economic torts require that C strike at D by committing a civil wrong against an intermediary, T. These torts include the unlawful means tort, malicious falsehood and passing off. Dependency claims under the Fatal Accidents Act 1976, claims under the Congenital Disabilities (Civil Liability) Act 1976 and claims against employers based on vicarious liability, all fit this tripartite structure, too.

7 For a trenchant attack on theorists who with little reflection condemn as anomalous or wrong appellate court decisions, see J. Stapleton, “Taking the Judges Seriously”, available at <https://ox.cloud.panopto.eu/Panopto/Pages/Viewer.aspx?id=c43ce0fc-7623-47ec-a1e8-a8cf0099a581> (accessed 28 March 2019).

8 Allen v Flood [1898] A.C. 1.

9 See e.g. Davis v Bromley [1908] 1 K.B. 170 in which the Court of Appeal denied the existence of the misfeasance tort.

10 See Three Rivers D.C. v Bank of England (No. 3) [2001] UKHL 16, [2003] 2 A.C. 1 (misfeasance tort; House of Lords); Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19, [2008] 1 A.C. 1174 and JSC BTA Bank v Khrapunov [2018] UKSC 19, [2018] 2 W.L.R. 1125 (lawful means conspiracy; House of Lords).

11 Willers v Joyce [2016] UKSC 43, [2018] A.C. 779. Lord Toulson was clear that the question before the court was whether “the [existing] tort of malicious prosecution includes the prosecution of civil proceedings” (emphasis added). Cf. J. Goudkamp, “A Tort Is Born” [2017] N.L.J. 11.

12 Crawford Adjusters Ltd. [2013] UKPC 17, [2014] A.C. 366, at [62], per Lord Wilson.

13 It is in theory possible that they were not needed when originally created, but that they have become necessary since. But there is no hint of this in any of the cases.

14 Most writers who have tackled the meaning of malice acknowledge the confusion surrounding this term: see e.g. Newark, F., “Malice in Actions on the Case for Words” (1944) 60 L.Q.R. 366, at 366–67Google Scholar; Ormsby, “Malice in the Law of Torts”, pp. 140–44; Prosser, W., “Injurious Falsehood: The Basis of Liability” (1959) 59 Col.L.Rev. 425, at 428–30CrossRefGoogle Scholar.

15 Since consistency is tied closely to the dignity of the law, there is obvious virtue in consistency. Also, such commonality between the torts helps undermine the claim that they are anomalies.

16 Grainger v Hill (1838) 4 Bing. N.C. 212, 224, per Bosanquet, J.: “[t]he action is … for maliciously abusing the process of the court”. Gilding v Eyre (1861) 10 C.B. N.S. 592, 604Google Scholar, per Willes J.: D liable for having “maliciously employed the process of the court”.

17 See e.g. Glinski v McIver [1962] A.C. 726, 765; Willers [2016] UKSC 43, [2018] A.C. 779, at [54].

18 See e.g. Crofter Hand Woven Harris Tweed Co. v Veitch [1942] A.C. 435, 445. There are a few cases in which the need to show malice has been stated expressly: see e.g. Quinn v Leathem [1901] A.C. 495, 512, per Lord Shand: “combination … in pursuit merely of a malicious purpose to injure another would be clearly unlawful.”

19 Three Rivers D.C. [2001] UKHL 16, [2003] 2 A.C. 1.

20 Ibid., at p. 191. Cf. Ripstein, Private Wrongs, pp. 182–83 (seeking to portray the malice requirement in this tort as being about D's means and not D's ends, yet invoking only the rather dated case of Roncarelli v Duplessis [1959] S.C.R. 121 and not the modern definition of the tort in Three Rivers D.C. [2001] UKHL 16, [2003] 2 A.C. 1).

21 Ibid.

22 Ibid.

23 Northern Territory v Mengel (1995) 185 C.L.R. 307, 357Google Scholar.

24 Ibid., at p. 370. In this jurisdiction it has been held that “[w]here a Judge of an inferior court, acting within his powers, from corrupt motives gives a wrong decision, malice is the foundation of any action against him”: Ferguson v Kinnoull (1842) 9 C.l. & F. 251, 321Google Scholar, per Lord Cottenham, emphasis added. See also the dictum of Lord Clarke in Willers [2016] UKSC 43, [2018] A.C. 779 (reproduced in the text accompanying note 81 below).

25 Grainger (1838) 4 Bing. N.C. 212, 221, per Tindal C.J.

26 Ibid.

27 Ibid. Note, however, that in common with malicious prosecution, abuse of process has at its core “civil proceedings brought … maliciously and without any proper justification”: Willers [2016] UKSC 43, [2018] A.C. 779, at [62], per Lord Clarke.

28 I don't deny that malice may ultimately be the determining factor. My point is merely that malice has no independent significance as an element of the tort that must always be shown in cases of this kind.

29 See e.g. Christie v Davey [1893] 1 Ch. 316, 326; followed in Hollywood Silver Fox Farm Ltd. v Emmett [1936] 2 K.B. 468. These cases are in no way undermined by Bradford Corporation v Pickles [1895] A.C. 587, for in that case the claimant had no right to receive the flow of water obstructed by the defendant. In both Christie [1893] 1 Ch. 316 and the Hollywood Silver Fox [1936] 2 K.B. 468 farm case, the claimants had rights to the peaceful enjoyment of their land that were affected by the defendant's malicious conduct.

30 Ibid., at p. 327.

31 Pollock, F., The Law of Torts, 7th ed. (London 1904), 400Google Scholar.

32 Pollock believed firmly in principle that “[e]very one commits a wrong who harms another … by an act intended to cause harm” (Pollock, F., The Law of Torts, 2nd ed. (London 1890), 52Google Scholar), yet he was forced to admit in the wake of the decision in Bradford Corporation [1895] A.C. 587 that this did not tally with English law. Although there had been some doubt (following Mogul Steamship Co. Ltd. v McGregor, Gow and Co. [1892] A.C. 25) whether English law embraced the idea that malice could ground liability, he conceded after the decision in Pickles that no such doubt could henceforth be maintained. For discussion of Pollock's earlier commitment to what in the US is called the prima facie tort doctrine, and his gradual acceptance that that doctrine did not form part of English Law, see Duxbury, N., Frederick Pollock and the English Juristic Tradition (Oxford 2004), 271–79CrossRefGoogle Scholar.

33 See Toogood v Spyring (1834) 1 Cr. M. & R. 181, 193 (qualified privilege); Defamation Act 2013, s. 3 (honest comment).

34 Abrath v North Eastern Railway Co. (1886) 11 App. Cas. 247, 253.

35 Wilts United Dairies v Robinson [1957] R.P.C. 200, 226–27, per Stable J. The Court of Appeal affirmed Stable J.’s decision and held that even a misrepresentation by conduct would suffice: Wilts United Dairies v Robinson [1958] R.P.C. 99, 101, per Morris L.J.

36 Salmond used the label “injurious falsehood” first: Salmond, J., Torts (London 1907), 149Google Scholar. Others who continue to use it include Beever, A., A Theory of Tort Liability (Oxford 2016), 171Google Scholar; Cane, P., “Mens Rea in Tort Law” (2000) 20 O.J.L.S. 533, at 539Google Scholar; Newark, “Malice in Actions on the Case for Words”, p. 376; Prosser, “Injurious Falsehood”.

37 Cf. Beever, A Theory of Tort Liability, pp. 132–34.

38 In the present era, the most sustained treatment belongs to Arthur Ripstein. However, he is not specifically concerned to discover a single meaning of malice across several torts. He attends mainly to the role of malice in private nuisance. He argues principally that malice should be understood in terms of D's means and not D's ends: see Ripstein, Private Wrongs, pp. 168–69. There is also some treatment of malice in Finnis, J., “Intention in Tort Law” in Owen, D. (ed.), Philosophical Foundations of Tort Law (Oxford 1995)Google Scholar.

39 As Lord Toulson observed in Willers [2016] UKSC 43, [2018] A.C. 779, at [52]: “over the last 400 years there has been a volume of case law about malice.” His speech offers a sizeable trawl of the malicious prosecution and abuse of process cases going back to the seventeenth century cases of Waterer v Freeman (1618) Hob. 266 and Atwood v Monger (1653) Style 378.

40 Fridman, G., “Malice in the Law of Torts” (1958) 21 MLR 484, 484CrossRefGoogle Scholar. See also Ormsby, “Malice in the Law of Torts”; L. Krauthoff, “Malice as an Ingredient of a Civil Cause of Action” (1898) 21 Annual Report of the American Bar Association 335.

41 Willers [2016] UKSC 43, [2018] A.C. 779, at [137]–[140].

42 These, discussed fully in Section III B below, are malice qua (1) spite or ill-will; (2) intention to do a wrongful and harmful act; (3) acting without just (or reasonable and probable) cause; (4) acting with improper motives.

43 MacCormick, N., Legal Reasoning and Legal Theory (Oxford 1978), 106Google Scholar.

44 Ibid.

45 For three accounts that come close to this, see Weinrib, E., “Two Conceptions of Remedies” in Rickett, C. (ed.), Justifying Private Law Remedies (Oxford 2008), 29Google Scholar; Beever, A Theory of Tort Liability, p. 173; Ripstein, Private Wrongs, pp. 182–83.

46 Beever, more charitably, calls the problem one of limited rationality: A. Beever, Rediscovering the Law of Negligence (Oxford 2007), 22.

47 Willers [2016] UKSC 43, [2018] A.C. 779, at [178].

48 Hicks v Faulkner (1881) 8 Q.B.D. 167, 175. An additional construction, though, was malice as “indirect or improper motives”: ibid.

49 Crawford Adjustors [2013] UKPC 17, [2014] A.C. 336, at [72], per Lord Wilson: “the concept extends beyond spite.”

50 McCardie J. summed things up neatly observing: “the jurist … enlarged the layman's notion of malice”: Pratt v BMA [1919] 1 K.B. 244, 275–76. Other judges keen to distinguish the legal and everyday meanings of malice include Bowen, L.J. (“[t]he terms ‘maliciously’, ‘wrongfully’, and ‘injure’ are words all of which have accurate meanings, well known to the law, but which also have a popular and less precise signification”: Mogul Steamship Co. Ltd. v McGregor, Gow & Others (1889) 23 Q.B.D. 598, 612)Google Scholar and Bayley, J. (distinguishing the legal meaning of malice and “[m]alice, in common acceptation”: Bromage v Prosser (1825) 4 .B & C. 247, 255)Google Scholar.

51 Mogul Steamship Co. Ltd. (1889) 23 Q.B.D. 598, 612.

52 Jacob v Vockrodt [2007] EWHC 2403 (QB), [2007] B.P.I.R. 1568.

53 Willers [2016] UKSC 43, [2018] A.C. 779, at [55]. Lord Toulson specifically pointed out that it had been used in “the early cases” and referred to it as “the nineteenth century understanding of the word malicious”: ibid.

54 The redundancy inheres in the fact that, in this “malice in law” construction, the malice adds nothing to the question of liability: it is merely evidence of, or synonymous with, intent to commit an act that is already wrongful. It could, however, be relevant to the question of whether aggravated damages should be awarded.

55 Mitchell v Jenkins (1833) 5 B. & Ad. 588. In similar vein, see Waterer v Freeman (1619) 80 E.R. 412; Wren v Weild (1868–69) L.R. 4. Q.B. 730, 736.

56 On the idea that inferences ordinarily pertain to factual matters rather than have any bearing on conceptually tricky legal ingredients, see R. v Woollin [1999] 1 A.C. 82 (intent in criminal law only to be inferred exceptionally: from D's foresight of a virtually certain outcome).

57 Willers [2016] UKSC 43, [2018] A.C. 779, at [54]. See also Glinski [1962] A.C. 726, 765.

58 Greers Ltd. v Pearman & Corder Ltd. (1922) 3 R.P.C. 406, 417. Equally, “if there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable”: Mitchell (1833) 5 B. & Ad. 588, 594.

59 In cases of mixed motives, it is D's predominant motive that must meet this description: Crofter Hand Woven Harris Tweed Co. [1942] A.C. 435, 445.

60 Cane, “Mens Rea in Tort Law”, p. 539.

61 Quinn [1901] A.C. 495.

62 Ibid., at p. 512.

63 He said of the defendants in Quinn [1901] A.C. 495 that “[t]heir acts were wrongful and malicious … [since] they acted by conspiracy… for the sole purpose of injuring the plaintiff in his trade”: ibid., at p. 515.

64 Ibid., at p. 506.

65 Ibid., at p. 533.

66 Ibid., at p. 495.

67 Ibid., at p. 452.

68 Cane, “Mens Rea in Tort Law”, p. 539.

69 Grainger (1838) 4 Bing. N.C. 212.

70 Ibid., at p. 224.

71 Ibid., at p. 221.

72 Three Rivers D.C. [2001] UKHL 16, [2003] 2 A.C. 1, 190.

73 Ibid., at p. 191.

74 For Lord Steyn's linking together bad faith and improper motive, see text associated with note 21 above.

75 Three Rivers D.C. [2001] UKHL 16, [2003] 2 A.C. 1, 191.

76 Cane, “Mens Rea in Tort Law”, p. 539.

77 In Three Rivers D.C., Lord Steyn was clear that all public law powers can only legitimately be exercised for the public good: [2001] UKHL 16, [2003] 2 A.C. 1, 190.

78 See text associated with note 21 above.

79 Three Rivers D.C. [2001] UKHL 16, [2003] 2 A.C. 1, 224.

80 Willers [2016] UKSC 43, [2018] A.C. 779, at [80].

81 Nolan, D., “A Public Law Tort: Understanding Misfeasance in a Public Office” in Barker, K. et al. (eds.), Private Law and Power (Oxford 2017), 197Google Scholar (citing Ferguson (1842) 9 Cl. & F. 251, 321).

82 J. Neyers, “Explaining the Inexplicable? Four Manifestations of Abuse of Rights in English Law” in Nolan and Robertson, Rights and Private Law, p. 320.

83 Crofter Hand Woven Harris Tweed Co. [1942] A.C. 435, 483, 495, per Lords Porter and Simon.

84 Crawford Adjusters Ltd. [2013] UKPC 17, [2014] A.C. 366, at [109].

85 Ibid., at para. [110].

86 Willers [2016] UKSC 43, [2018] A.C. 779, at [56].

87 Ibid., at para. [55] (emphasis added).

88 Hall v Semple (1862) 3 F. & F. 337, 357. For several other examples, see Fridman, “Malice in the Law of Torts”, pp. 484–85.

89 A fair number of nineteenth century criminal law statutes required offences to be committed “maliciously”; and the Court of Criminal Appeal held that, “in any statutory definition of a crime ‘malice’ must be taken … as requiring either (1) an actual intention to do the particular kind of harm that in fact was done, or (2) recklessness as to whether such harm should occur”: R. v Cunningham [1957] 2 Q.B. 396, 399, per Byrne J. The requirement that certain assaults be committed maliciously still features, unamended, in various sections of the Offences Against the Person Act 1861.

90 Allen [1898] A.C. 1, 124. To like effect, Lord Davey said: “it seems to be an argument in a circle to say that an act not otherwise wrongful becomes so if malicious”: ibid., at p. 171. See also ibid., at p. 92, per Lord Watson and Lonrho Ltd. [1982] A.C. 173, 188.

91 Bradford Corporation [1895] A.C. 587, 592. He effectively reiterated the point in Allen [1898] A.C. 1, 92.

92 Beever, A Theory of Tort Liability, pp. 132–34 attempts such reconciliation. But his argument is undermined by his seeking to rely on two different conceptions of malice that can supposedly be found in the case law. This approach is interpretively problematic since these putatively different meanings are drawn from cases that cite a common source.

93 Hedley Byrne & Co. Ltd. v Heller [1964] A.C. 465.

94 Derry v Peek (1889) 14 App. Cas. 337, 347.

95 Hedley Byrne & Co. Ltd. [1964] A.C. 465, 484. Similar doubts about Derry (1889) 14 App. Cas. 337 having established such a rule were expressed by Lord Devlin: ibid., at p. 516.

96 It might also be noted that Lord Herschell's general rule was itself a dilution of the rule cast in seemingly absolute terms by Lord Watson in the Pickles case.

97 Quinn [1901] A.C. 495, 506.

98 Finnis, “Intention in Tort Law”, p. 238.

99 Edgington v Fitzmaurice (1885) 29 Ch. 459, 483.

100 McBride, N. and Bagshaw, R., Tort Law, 5th ed. (London 2018), 659Google Scholar.

101 Willers [2016] UKSC 43, [2018] A.C. 779, at [58].

102 According to Lord Devlin in the leading case on such damages “in cases where the damages are at large, the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff… [For] the wrong may be such as to injure the plaintiff's proper feelings of dignity or pride” and “[t]hese are matters which the jury can take into account in assessing the appropriate compensation”: Rookes v Barnard [1964] A.C. 1129, 1221. For other such dicta, see J. Murphy, “The Nature and Domain of Aggravated Damages” [2010] C.L.J. 353.

103 Pritchard v Co-operative Group Ltd. [2011] EWCA Civ 329, [2012] Q.B. 320, at [61]–[62].

104 The increased probability stems from the fact that “the harm complained of was not only foreseen but intended”: O.W. Holmes, “Privilege, Malice and Intent” (1894) 8 Harv.L.Rev. 1, at 6.

105 Finnis, “Intention in Tort Law”, p. 238.

106 See Halpin, A., “The Concept of a Legal Power” (1996) 16 O.J.L.S. 129Google Scholar.

107 This is the conception of a public power adopted in K. Barker, “Public Power, Discretion and the Duty of Care” in Barker et al., Private Law and Power, p. 207: “One of the key features of a public body … is that it is imbued with statutory powers that private individuals lack.”

108 As explained more fully below, I consider the freedom of association that is integral to the tort of lawful means conspiracy a quasi-public power because the freedom involved is readily conceived in terms of a constitutional freedom to associate for communitarian purposes.

109 Bradford [1985] A.C. 587 is often cited in support of this proposition. However, the case is best understood differently. It turned not on the absence of an abuse of rights principle, but on the absence of a right held by C to receive the water percolating under D's land: see McBride and Bagshaw, Tort Law, 5th ed., pp. 450–51.

110 Jason Neyers certainly takes this view, but he mistakenly says that the purpose of this tort is to ensure a “prohibition on the targeted infliction of gratuitous harm”: Neyers, “Explaining the Inexplicable?”, p. 323. This characterisation of the misfeasance tort fails to capture many cases falling within version 2 for which targeted malice is not required.

111 Ripstein, Private Wrongs, p. 182. See also Todd, S., “Liability in Tort of Public Bodies” in Mullany, N. and Linden, A. (eds.), Torts Tomorrow: A Tribute to John Fleming (North Ryde 1996)Google Scholar.

112 Martin v Watson [1996] A.C. 74, 88 (malicious prosecution); Hanrahan v Ainsworth [1990] 22 N.S.W.L.R. 73, 120 (abuse of process). That access to the Queen's courts is a constitutional right was made clear in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping [1981] A.C. 909.

113 Gregory v Portsmouth City Council [2000] 1 A.C. 419, 426. See also Crawford Adjusters Ltd. [2013] UKPC 17, [2014] A.C. 366, at [134]–[135], per Lord Sumption.

114 McBride and Bagshaw, Tort Law, 5th ed., p. 675.

115 The term belongs to McBride and Bagshaw. They too suggest that malice prosecution, abuse of process and the misfeasance tort share the feature of an abuse of “public powers or quasi-public powers”: ibid., emphasis in original. The fail, however, to explain what they mean by the key term “public powers”.

116 Neyers, “Explaining the Inexplicable?”, p. 323.

117 Ibid., at p. 324.

118 Weinrib, “Two Conceptions of Remedies”, p. 30.

119 Bizarrely, he states clearly that his ultimate aim is “to suggest that a rights-based account of the law can … explain [various malice-based torts]”: Neyers, “Explaining the Inexplicable?”, p. 310. Yet, rights-based accounts concentrate on C's (not D's) rights!

120 Weinrib offers his analysis as a basis for understanding all abuse of power torts. But it obviously cannot explain the misfeasance tort which attends to the abuse of public functions and not the abuse of self-chosen private pursuits.

121 Hershovitz, S., “The Search for a Grand Unified Theory of Tort Law” (2017) 130 Harv.L.Rev. 942, 969Google Scholar.

122 Fridman, “Malice in the Law of Torts”, p. 497, emphasis in original.

123 See Nolan, “A Public Law Tort”, pp. 183–86.

124 Aronson, M., “Misfeasance in Public Office: Some Unfinished Business” (2016) 132 L.Q.R. 427, 431Google Scholar, emphasis is in original.

125 The rule of law, he argues, requires that “the courts should be easily accessible”: Raz, J., The Authority of Law, 2d ed. (Oxford 2009), 217Google Scholar.

126 Varawa v Howard Smith Co. Ltd. (1911) 13 C.L.R. 35, 91, per Isaacs J.

127 Brownlee, K., “Freedom of Association: It's Not What You Think” (2015) 35 O.J.L.S. 267, 271Google Scholar.

128 Ibid., at p. 277.

129 See e.g. Wilson v United Kingdom (Application no. 30668/96) (2002) 35 EHRR 20, at [42]; Tum Haber Sen v Turkey (Application no. 28602/95) (2008) 46 EHRR 19, at [28]; Danilenkov v Russia (Application no. 67336/01) (2014) 58 EHRR 19, at [121].

130 Gregory [2000] 1 A.C. 419, 432, per Lord Steyn.

131 Law Com. No. 322, 2010, para. [3.65].

132 Ibid., at para. [3.66].

133 This argument belongs to Martin Loughlin: “constraints, which ensure that public power is wielded only for public purposes, bolster the confidence of the people in the integrity of government”: Loughlin, M., The Idea of Public Law (Oxford 2003), 85Google Scholar. For application of this thinking to the misfeasance tort, see Nolan, “A Public Law Tort”, pp. 183–86.

134 Nolan, “A Public Law Tort”, p. 178.

135 Willers [2016] UKSC 43, [2018] A.C. 779, at [131].

136 Ibid., at para. [43].

137 Gregory [2000] 1 A.C. 419, 432.

138 Ibid., at paras. [431]–[432].

139 “[T]he two torts sprang from the same tree”: Crawford Adjusters Ltd. [2013] UKPC 17, [2014] A.C. 366, at [62], per Lord Wilson.

140 Abuse of process does not, unlike malicious prosecution, require the absence of a reasonable cause: ibid., at para. [62], per Lord Wilson.

141 The tort functions to target X where X uses proceedings he is entitled to initiate in order to coerce Y in some way that lies outside the proper ambit of the claim: Varawa (1911) 13 C.L.R. 35, 91, per Isaacs J.

142 Hoffmann, L., “The Rise and Fall of the Economic Torts” in Degeling, S. et al. (eds.), Torts in Commercial Law (Pyrmont, NSW 2011), 115Google Scholar.

143 Lonrho Ltd. [1982] A.C. 173, 189, per Lord Diplock.

144 Cf. Beever, A Theory of Tort Liability, pp. 138–39.

145 European Convention on Human Rights, Art. 11(1).

146 The courts’ ability to strike out vexatious litigation and the rule that losers pay costs reduce the incidence of malicious prosecution and abuse of process cases. Lawful means conspiracy cases are rare because there are few things that are done that are designed to cause loss to another that are prima facie lawful. The need to show malice combined with the fact that only public officers can be sued restricts the number misfeasance tort cases.

147 One form of challenge is based on tort law's remarkable heterogeneity (on which see Murphy, “The Heterogeneity of Tort Law”); another is based on the fact that these torts have a distinctly public not private dimension, contrary to popular conceptions of tort law as exclusively a creature of private law (on which see e.g. Murphy, J., “Misfeasance in a Public Office: A Tort Law Misfit” (2012) 32 O.J.L.S. 51Google Scholar).