LAW OF TORTS

RELEVANCE OF MALICE IN TORT; BRADFORD CORPORATION V PICKLES

AND OTHER CASES

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 CONTENTS

PREFACE ............................................................................................................ 3
ACKNOWLEDGEMENT .................................................................................. 4
RESEARCH METHODOLOGY ...................................................................... 5
OBJECTIVES ..................................................................................................... 5
RESEARCH QUESTION .................................................................................. 5
SCOPE ................................................................................................................. 5
INTRODUCTION............................................................................................... 6
Evidence of malice ................................................................................................................. 7
Damages ................................................................................................................................. 8
Malicious prosecution ............................................................................................................ 8
MALICE IN FACT AND MALICE IN LAW ................................................. 9
Malice in law.......................................................................................................................... 9
Malice in fact ......................................................................................................................... 9
DIFFERENCE BETWEEN MALICE IN FACT AND MALICE IN LAW
............................................................................................................................. 10
Malice in fact ....................................................................................................................... 10
Malice in law........................................................................................................................ 10
DIFFERENCE BETWEEN MALICE, INTENTION AND MOTIVE ....... 10
Intention ............................................................................................................................... 10
Malice .................................................................................................................................. 12
Motive .................................................................................................................................. 12
CASE OF BRADFORD CORPORATION VS PICKLESError! Bookmark
not defined.
Facts of the case ................................................................................................................... 12
Procedural history ................................................................................................................ 13
Rule of law/precedents referred ........................................................................................... 13
LEGAL ISSUES, JUDGEMENT AND COMMENT ON THE CASE ....... 14
Arguments/reasoning ........................................................................................................... 14
Judgement of the case .......................................................................................................... 14
Ratio decidendi .................................................................................................................... 15
Case comment ...................................................................................................................... 15
CONCLUSION.................................................................................................. 19
BIBLIOGRAPHY ............................................................................................. 20

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 PREFACE
As part of the NLUO curriculum and to gain knowledge in the field of Law of Torts, the
researchers were required to make a project report on the topic “THE RELEVANCE OF
MALICE IN TORT; BRADFORD CORPORATION V PICKLES AND OTHER CASES”.
The basis objective behind doing this report is to get knowledge of the Relevance of malice in
the above-mentioned case.

In this project, researchers have included the studies like, how the concept of malice is evolved
in the above-mentioned case.

Doing this project helped the researchers to enhance their knowledge related to the concept of
malice and its interpretation, conditions and essentials.

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 ACKNOWLEDGEMENT
The researchers would like to express his gratitude and appreciation to all those who helped
him in completing this project. A special thanks to the subject teacher of Law of Torts, Ms.
Sudhatta Barik and Ms. Sonal Singh, who gave research the opportunity to work on the
project topic “THE RELEVANCE OF MALICE IN TORT; BRADFORD CORPORATION V
PICKLES AND OTHER CASES”. The researchers thank them for their help, stimulating
suggestions and encouragement which led us to complete this project successfully. Without
their help the completion of project was not possible.

The researcher also acknowledges the IT Department of NLUO, for providing him the Wi-Fi
facility which helped him to get the information for the research project.

At last but not the least, the research wants to thank his friends and all those who encouraged
him time to time to complete this research project.

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 RESEARCH METHODOLOGY
The research work will be completed in adherence to the doctrinal method of research and will
rely on both the primary and secondary sources. It shall be descriptive in nature and will also
follow an analytical approach i.e. use the analysis of the facts to reach out the conclusion based
on logical reasoning. This research shall endeavour to review the existing format and establish
a relationship with the subject format. The mode of citation that has been adopted in OSCOLA.

OBJECTIVES
 To understand the dominant purpose for the prosecution as to whether it is an
improper invocation of the criminal process.
 To search the requirement of reasonable and probable cause with the prosecution.
 To express deliberate intention to unlawfully take away the life of a human being.
 To focus on the mental state that is in reckless disregard of the law in general and
legal right of others.

RESEARCH QUESTION
1. How is malice actionable in tort?

SCOPE
This project is primarily limited to the relevance of Bradford Corporation verses Pickles case
in malice in law of torts.

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 INTRODUCTION

In tort, to act maliciously means acting with a bad motive. Normally, malice – and motive in
general – is irrelevant in tort law. If what you do is lawful, it remains lawful whatever your
reason for doing it. Similarly, if your act is unlawful, doing it with a good motive will not
usually make it lawful. This was the approach taken by the House of Lords in the leading case
of Bradford Corporation v Pickles (1895). The Bradford Corporation owned a reservoir on
property adjoining Pickles’ land. Water naturally flowed under Pickles’ land and into the
reservoir. Pickles wanted to force the corporation to buy his land at a high price. With this aim
in mind, he dug up some of his land, to stop the natural flow into the reservoir. It was already
settled law that it was not a tort for a landowner to interfere with the flow of underground water,
but the corporation argued that although Pickles’ action would normally have been lawful, his
malice made it unlawful. The House of Lords rejected this argument. However, there are a few
torts for which malice is relevant. In defamation, certain defences will be unavailable if the
defendant has acted maliciously, and, in nuisance, malice can render what would have been a
reasonable act an unreasonable one. For example, in Hollywood Silver Fox Farm Ltd v Emmett
(1936) the defendant and claimant owned farms near each other. After a dispute between them,
the defendant arranged for guns to be fired on a part of his own land which was near the
claimant’s land, with the intention of interfering with the breeding of the claimant’s foxes. The
firing did have this effect, and so the claimant sued for nuisance. The action was successful,
because of the malicious motive with which the defendant acted. Malice may also be relevant
to the calculation of damages, making them higher than they would be if the same act was
committed without malice.

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 MALICE- ESSENTIALS AND CONDITIONS

Malice in law is the purpose, without support or reason, to submit a wrongful act that will
result in damage to another. Malevolence implies the wrongful aim and incorporates a wide
range of plan that law regards to be wrongful. Legitimately any act done with a wrong aim is
done malevolently. A case of a vindictive demonstration would submit the tort of slander by
considering a non-drinker a heavy drinker before all his or her representatives. As to
wrongdoing of murder, malice is the psychological condition which persuades a man to
slaughter another without any good motivation or incitement. In common cases a finding of
malice permits more prominent harms. Malice can be express or suggested. Express malice is
the aim to murder or truly harm emerging from a ponder, level-headed personality. Then again
implied malice is what can be induced from a man's lead.

“Malice for the purposes of malicious prosecution means having any other motive apart from
that of bringing an offender to justice. Spite and ill-will are enough but not necessary conditions
of malice. Malice means the presence of some other and improper motive that is to say the
legal process in question for some other than its legally appointed and appropriate purpose.
Anger and revenge may be proper motives if channelled into the criminal justice system. The
lack of objective and reasonable cause is not an evidence of malice, but lack of honest belief is
an evidence of malice. In Allen v. Flood a general rule was propounded that an act lawful does
not merely become unlawful because of the bad motives of the actor and some of their lordships
in the House of Lords suggested that malicious prosecution was not really an exception to this
rule. The settled rule is that malice is the gist of the action for malicious prosecution and must
be proved by the plaintiff in the first instance. It is for the plaintiff to prove that there was an
existence of malice i.e. the Burden of Proof lies upon the plaintiff.1”

EVIDENCE OF MALICE

Malice might be demonstrated by already stains relations, outlandish or ill-advised direct like
promoting of energize or getting false confirmation. Although simple remissness isn't
confirmation of noxiousness outlandish lead like flurry, carelessness or inability to demonstrate
enquiries would be some proof. At the point when there is nonappearance of some sensible
reason owing to respondent's need of faith in reality of his charge is the indisputable

1 'Malicious Prosecution under Law of Tort' (Legalserviceindia.com, 2018)

<http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html> accessed 15
August 2018.

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confirmation of malevolence. Anyway, the opposite recommendation isn't genuine in light of
the fact that a man might be roused by vindictiveness and furthermore has a sensible faith in
reality of his case. There might be noxiousness either in starting an arraignment or proceeding
with one, sincerely started. The minor truth that criminal indictment brought about absolution
or release of the charged won't set up that the litigant had acted with malevolence.

DAMAGES

It has to be proved that the plaintiff has suffered damages because of the complaint of. Even
though the proceedings terminate in favour of the plaintiff, he may suffer damage as a result of
the prosecution. The damages may not necessarily be pecuniary. According to HOLT C.J.‘s
classic analysis in Savile v. Robert there could be three sort of damages any one of which could
be sufficient to support any action of malicious prosecution.

1) The damage to a man’s fame as where the matter whereof he is accused is scandalous

2) The damage done to a person as where man is put to a danger of losing his life, limb or
liberty

3) The damage to a man’s property as where is forced to expend money in necessary charges,
to acquit himself of the crime of which he is accused.

The damage must also be the reasonable and probable results of malicious prosecution and not
too remote. In assessing damage, the court to some extent would have to consider:

1) The nature of the offence the plaintiff was charged of

2) The inconvenience to which the plaintiff was charged to

3) Monetary loss and

4) The status and prosecution of the person prosecuted.2

MALICIOUS PROSECUTION

2
'Malicious Prosecution under Law of Tort' (Legalserviceindia.com, 2018)
<http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html> accessed 15
August 2018.

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Malicious indictment is a man-handle of the procedure of the court by wrongfully getting the
law under way on a criminal allegation. So as to succeed the offended party must demonstrate
that there was an arraignment with no fair and sensible reason, started by noxiousness and the
case was chosen in the offended party's support. It is important to demonstrate that harms were
acquired by the offended party because of the indictment. The weight of confirmation lays on
him. He needs to demonstrate the presence of noxiousness.

Perniciousness might be demonstrated by beforehand decoloured relations, nonsensical and

inappropriate direct like getting false proof.

Although insignificant thoughtlessness isn't the as such confirmation of malignance,

preposterous direct like scramble, neglectfulness or inability to make enquiries would be some
proof. Noxious arraignment is the pernicious organization of unsuccessful criminal or
insolvency or liquidation procedures against another without sensible or reasonable
justification. This tort adjusts contending standards, to be specific opportunity that each
individual ought to have in conveying crooks to equity and the requirement for limiting false
allegations against blameless people. Noxious indictment is a man-handle of the procedure of
the court by wrongfully getting the law under way on a criminal allegation. It is a push to
exasperate the best possible working of the legal hardware.”

MALICE IN FACT AND MALICE IN LAW

MALICE IN LAW

Malice in law alludes to aim unlawfully to take away the life of an individual animal for a
situation where the law would neither legitimize nor to any degree pardon the goal, if the
murdering should happen as expected. It is a demonstration becoming out of the underhanded
or insidious aim of the brain; a demonstration demonstrating a wanton tendency to wickedness,
an expectation to harm or wrong, and a corrupted tendency to dismiss the privileges of others.
Malice in law in law is likewise alluded to as specialized malignance or lawful malevolence.3

MALICE IN FACT

The term used to describe the wilful and premeditated determination to bring about harm to
another. Express malice is such as is expressed by words or conduct, indicating an intention to

3
Mann v. State, 124 Ga. 760, 765 (Ga. 1906).

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commit a crime. Malice aforethought is a wicked purpose or re solve. It is a common statutory
and criminal inuredent which distinguishes murder from manslaughter. Thus, in a charge of
murder, the state must show not only malice, but what in law is called malice afore thought.4

DIFFERENCE BETWEEN MALICE IN FACT AND MALICE IN LAW

MALICE IN FACT

At the point when a demonstration is finished with hostility thought process towards an
individual then it is called Malice – in – fact or express malice. In Malice-in-fast there must be
malevolence or any noxious rationale of the respondent against the offended party. Thought
process or motive is the primary fixing whereupon Malice-in-fact is based

MALICE IN LAW

However, when a demonstration is done wrongfully and without sensible and reasonable
justification, it is called Malice-in-law or implied malice. In malice-in-law, the demonstration
done must be wrongful or lawful right should be disregarded. While in Malice-in-law there
must be Simultaneousness of psyche with a wrongful demonstration done by the respondent
without worthwhile motivation or reason. Then again, Knowledge is the principle fixing upon
which Malice-in – law is based.5

DIFFERENCE BETWEEN MALICE, INTENTION AND MOTIVE

INTENTION

Intent must be shaped before the demonstration, and it must join with the demonstration. It
requires not exist for any given period before the demonstration; the expectation and the
demonstration can be as immediate as concurrent or progressive contemplations.

4 'Express Malice and Malice is of Two Kinds - Law and Murder' (Booksupstairs.com, 2018)
<http://www.booksupstairs.com/Cyclopedia-of-law-Vol-12/Express-Malice-and-Malice.html> accessed 14
August 2018.

5
Avantika Goel, 'Malice-in-Fact and Malice –in-Law | Infipark.Com' (Infipark.com, 2016)
<http://www.infipark.com/articles/malice-in-fact-and-malice-in-law/> accessed 14 August 2018.

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A jury might be allowed to construe criminal expectation from actualities that would lead a
sensible individual to trust that it existed. For instance, the aim to submit Burglary might be
derived from the blame d’s ownership for instruments for picking locks.

Criminal expectation may likewise be assumed from the commission of the demonstration.
That is, the arraignment may depend on the assumption that a man expects the Natural and
Probable Consequences of his or her deliberate demonstrations. For instance, the expectation
to confer murder might be exhibited by the specific intentional development that caused the
passing, for example, the pointing and shooting of a gun. A respondent may invalidate this
assumption by presenting proof demonstrating an absence of criminal plan. In the former case,
if the murder litigant sensibly trusted that the gun was really a toy, confirm demonstrating that
conviction may disprove the assumption that passing was planned.

Confirmation of general criminal aim is required for the conviction of generally wrongdoings.
The expectation component is typically satisfied if the litigant was for the most part mindful
that he or she was likely perpetrating a wrongdoing. This implies the arraignment require not
demonstrate that the respondent knew about most of the components constituting the
wrongdoing. For instance, in an arraignment for the ownership of more than a specific measure
of a controlled substance, it isn't important to demonstrate that the litigant knew the exact
amount. Different cases of general-aim wrongdoings are Battery, assault, Kidnapping, and
False Imprisonment.

A few wrongdoings require a Specific Intent. Where goal is a component of a wrongdoing, it

must be demonstrated by the indictment as a free actuality. For instance, Robbery is the taking
of property from another's quality by power or risk of power. The goal component is satisfied
just by confirm demonstrating that the litigant particularly planned to take the property.
Dissimilar to general aim, particular aim may not be derived from the commission of the
unlawful demonstration. Cases of particular goal violations are requesting, endeavour, trick,
first-degree planned murder, ambush, Larceny, theft, thievery, fabrication, affectation, and
Embezzlement.
Most criminal laws necessitate that the predetermined wrongdoing be perpetrated with
information of the demonstration's guiltiness and with criminal aim. Be that as it may, a few
statutes make a demonstration criminal paying little respect to aim. At the point when a statute
is quiet as to purpose, learning of culpability and criminal aim require not be demonstrated.

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Such statutes are called Strict Liability laws. Cases are laws denying the offer of liquor to
minors, and Statutory Rape laws.6

MALICE

Malevolence is a perspective that forces a man to intentionally make outlandish damage

someone else. At Common Law, kill was the unlawful slaughtering of one individual by
another with perniciousness aforethought, or a destiny to execute without legitimate avocation
or reason. Most wards have overlooked noxiousness from statutes, for less-indistinct terms to
depict goal, for example, reason and knowing.

MOTIVE

Thought processes are the causes or reasons that incite a man to shape the goal to carry out a
wrongdoing. They are not the same as goal. Or maybe, they clarify why the individual acted to
abuse the law. For instance, information that one will get protection stores upon the passing of
another might be a rationale in kill, and sudden budgetary trouble might be thought process in
misappropriation or thievery.
Evidence of an intention isn't required for the conviction of a wrongdoing. The presence of a
thought process is insignificant to the matter of blame when that blame is unmistakably settled.
Nonetheless, when blame isn't obviously settled, the nearness of a thought process may set up
it. On the off chance that an arraignment is construct altogether considering Circumstantial
Evidence, the nearness of an intention may be powerful in building up blame; in like manner,
the nonappearance of a thought process may bolster a finding of honesty.

IN THE HOUSE OF LORDS

(His Honour Lord Halsbury L.C., Lord Watson, Lord Ashbourne, and Lord Macnaghten)

FACTS OF THE CASE

6
'Criminal Intent, Malice and Motives' (Andrewdstine.com, 2018) <http://www.andrewdstine.com/criminal-
intent-malice-and-motives/> accessed 15 August 2018.

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Parties involved in the case are, The Mayor, Aldermen and Burgesses of the Borough of
Bradford, appellants; and Edward Pickles, respondent. The case in hand took place on 29 July
1895 in House of Lords, Scotland.

In this case, the plaintiffs owned some land beneath which were large water springs that they used,
for over 40 years, to supply the town of Bradford with water. The plaintiff’s land was the lower
part of a hillside, and above it was a tract of land owned by the defendant. Beneath the
defendant’s tract there was a natural reservoir for subterranean water and normally
this water flowed, but not in a defined stream, underground down to the plaintiffs’ land and
filled their springs. The defendant decided to sink a shaft in his own land to change the flow
of the underground water. This reduced the amount of water that flowed down to the plaintiffs’
springs. The plaintiffs alleged that the defendant’s sole motive was to injure the plaintiffs and
force them to buy the defendant’s land or pay him for the water they required. The plaintiffs
sought an injunction to stop the defendant from continuing his work.

PROCEDURAL HISTORY

The suit in the case in hand was initiated by appellants in House of Lords in Scotland, United
Kingdom on 29 July 1895 in which the court decided to reject the appeal of the appellants and
gave the decision in favour of respondent. The court held that as long as Pickles had a right to
take an action on his property, there is no way that can be converted to an illegal action, no
matter what his motives. There was no reason why he should not demand that the city pay for
his interests in the water beneath his land.

RULE OF LAW/PRECEDENTS REFERRED

As the matter is related to tort law of nuisance, first requisite is to define nuisance. As defined
by Salmond and Austin – "an act not warranted by law, or an omission to discharge a legal
duty, which act, or omission obstructs or causes inconvenience or damage to the public in the
exercise of rights common to all Her Majesty's subjects".7 Under the common law, the
only remedy for a nuisance was the payment of damages. However, with the development of
the courts of equity, the remedy of an injunction became available to prevent a defendant from

7
Salmond and Heuston, Law of torts, 21st Revised edition (1 January 1996), Sweet & Maxwell.

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repeating the activity that caused the nuisance, and specifying punishment for contempt if the
defendant is in breach of such an injunction.

LEGAL ISSUES, JUDGEMENT AND COMMENT ON THE CASE

In present case, a civil suit of Nuisance has been initiated by the plaintiff to seek injunction in
the matter at hand.
The issues in this case were pertaining to:
 Tort of Nuisance
 Whether the appeal should be accepted or not
 Was respondent’s act done with malice
 Could the diversion constitute a nuisance

ARGUMENTS/REASONING

SOLICITORS: For appellants: Cann & Son for W. T. McGowen, Bradford.

For respondents: Ullithorne, Currey & Currey for W. & G. Burr & Co., Keighley.
The appellants alleged in their statement of claim that the respondent did not have a bona fide
intention to work his minerals, and that his intention was to injure the appellants and so to
endeavour to induce them either to purchase his land or to give him some other compensation.
They also contended that the respondent’s conduct was forbidden by Bradford Waterworks
Act.8

In contention the respondent’s council argued that, the acts done, by the defendant were all
done upon his own land, and the interference, whatever it is, with the flow of water is an
interference with water, which is underground and not shown to be water flowing in any
defined stream, but is percolating water, and defendant diverted it on his own land of which he
has total enjoyment and hence he did not commit any wrong.

JUDGEMENT OF THE CASE

Held: The plaintiffs could have no property in the water until it came on their land and they
collected it, and ‘if the owner of the adjoining land is in a situation in which an act of his,
lawfully done on his own land, may divert the water which would otherwise go into the
possession of this trading company, I see no reason why he should not insist on their purchasing

8
1. Bradford Waterworks Act 1854 s.49

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his interest from which this trading company desires to make profit.’
The exercise of a legal right is not an unlawful abuse of that right merely by reason of a
predominant improper or ulterior purpose.

RATIO DECIDENDI

One has the right to use his land as he wishes that no use of property which would be legal if
due to a proper motive can become illegal because it is prompted by a motive which is improper
or even malicious. The plaintiffs sought an injunction to prevent the defendant interfering with
the supply of water to the city. He would have done so entirely by actions on his own land.

CASE COMMENT

The case at hand relates to the tort law of Nuisance, in this case Pickles deliberately diverts
water so that it doesn’t go onto neighbour’s property anymore; with the goal of getting them to
buy his land at inflated price. The issue in this case was related to whether, the use of property
which would be legal if due to a proper motive become illegal because it is prompted by a
motive which is MALICIOUS?

The Hon’ble court did not accept the appeal of the appellants and gave out the decision that if
Pickles had a right to take an action on his property, there is no way that can be converted to
an illegal action, no matter what his motives. There was no reason why he should not demand
that the city pay for his interests in the water beneath his land. The ratio given by the court in
reaching the judgment was that one has the right to use his land as he wishes. No one has right
to water running to their property. The diversion of water by a neighbour does not constitutes
a nuisance.

The Hon’ble court gave a perfect judgment keeping in mind the principles and necessary
elements which constitute nuisance. The court was at its best to recognize the facts of the case
and all the judges of the case agreed on the same that the respondent did not commit any wrong,
even though he acted maliciously but a person has utmost right to do anything he wishes on his
land and the neighbour cannot complain of the same. The court was right to identify that
nuisance occurs only when one interferes or causes annoyance or disturbance to another and
since in this case even though there was malice on the part of the respondent, but he didn’t
interfere or cause annoyance to his neighbour and hence was held not liable.

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In my opinion, the court took cognizance of all the events occurred and pronounced a perfect
judgment.

OTHER CASES RELATED TO THE CASE

 Three Rivers District Council and Others v Governor and Company of The
Bank of England HL9-

The applicants alleged misfeasance against the Bank of England in respect of the regulation of
a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear
evidence of misdeeds. The action was now properly pleaded, and the bank knew the case it had
to answer. The issue of whether there was sufficient evidence to support the allegation to the
high standard required, was not a matter for summary assessment, but for the judge at trial. It
was not appropriate to strike out the action. The defendant must be a public officer in a wide
sense, and exercising power as such.
A claim of misfeasance in public office gives rise to four principal questions: ‘i) Was the
conduct complained of that of public officers, exercising power in that capacity?
ii) Did the officers act knowingly or recklessly beyond their powers?
iii) Did they thereby cause damage to the claimant?
iv) Did they know that the act(s) in question probably would cause such damage or were they
reckless in that regard?’
Lord Steyn said: ‘The case law reveals two different forms of liability for misfeasance in public
office. First there is the case of targeted malice by a public officer, i.e. conduct specifically
intended to injure a person or persons. This type of case involves bad faith in the sense of the
exercise of public power for an improper or ulterior motive. The second form is where a public
officer acts, knowing that he has no power to do the act complained of and that the act will
probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have
an honest belief that his act is lawful.’

 Land Securities Plc and Others v Fladgate Fielder (A Firm) CA10-

10 Gazette 08-Jun-00, Bailii, [2000] UKHL 331, [2000] 2 WLR 1220, [2000] 3 All ER 1.

10
[2010] 2 WLR 1265, [2009] NPC 147, [2010] 1 EG 70, [2010] 2 All ER 741, [2010] PTSR 1246)

16
The claimants wanted planning permission to redevelop land. The defendant firm of solicitors,
their tenants, had challenged the planning permission. The claimants alleged that that
opposition was a tortious abuse because its true purpose was to pressure the claimants into
relocating them. The claimants appealed against summary dismissal of their claim on the basis
that no tort of maliciously instituting proceedings process existed.
Held: The appeal failed: ‘there is no general tort of malicious prosecution of civil cases. On
policy grounds, the tort of malicious prosecution in relation to civil cases is confined to the
three well established heads of damage recognised in Quartz Hill and Gregory. Second,
essential ingredients of a claim for malicious prosecution are the absence of reasonable and
probable cause and that the proceedings have ended in favour of the person maliciously
prosecuted. Third, Grainger has never been overruled. It is authority for a tort of abuse of
process. The only other case within this jurisdiction, in which the tort has arguably been
successfully invoked, is Gilding, over 140 years ago. Both cases concerned a blatant misuse of
a particular process, namely arrest and execution, within existing proceedings. In both cases
the abuse of that process involved compulsion by arrest and imprisonment to achieve a
collateral advantage. Fourth, in cases of abuse of process, it is irrelevant whether or not there
was reasonable or probable cause for the proceedings, or in whose favour they ended, or
whether they have ended at all. Fifth, statements in the English authorities describing a broader
application of the test of abuse of process than the critical factual elements of Grainger and
Gilding were all obiter.

 Rhodes v OPO and Another11

The mother sought to prevent a father from publishing a book about his life. It was to contain
passages she said may cause psychological harm to their 12 year old son. Mother and son lived
in the USA and the family court here had no jurisdiction to grant orders protecting the child’s
welfare. Instead, these proceedings were brought in his name, originally by his mother and now
by his godfather as his litigation friend, alleging that publication would constitute a tort against
him.
Held: The appeal was allowed, and the original order striking out the claim was restored, clearly
failing to meet all but one of the requirements. ‘There is plainly a powerful case for saying that,
in relation to the instant tort, liability for distressing statements, where intent to cause distress
is an essential ingredient, it should be enough for the claimant to establish that he suffered

11
Bailii, [2015] UKSC 32, [2016] AC 219, [2015] EMLR 20, [2015] HRLR 11, [2015] WLR (D) 227.

17
significant distress as a result of the defendant’s statement. It is not entirely easy to see why, if
an intention to cause the claimant significant distress is an ingredient of the tort and is enough
to establish the tort in principle, the claimant should have to establish that he suffered
something more serious than significant distress before he can recover any compensation.
Further, the narrow restrictions on the tort should ensure that it is rarely invoked anyway.

18
 CONCLUSION
In malice the defendant had to prove that the plaintiff acted negligently. The presence of
wrongful motive is malice. In malice there was no probable and reasonable cause and also there
was no improper motive. So the cautious violation of the law to the prejudice of other is malice.
It does not mean ill will against plaintiff but also to cause wrongful act without any excuse.
The malice is actionable in tort by following ways-

1 LEGAL DAMAGES- The main motive of this damage is to provide monetary compensation
to the plaintiff by the defendant as ordered by the court. It is equivalent to the loss occurred by
the plaintiff. It is not given according to tortfeasor’s gain. In the Bradford case no compensation
will be provided to the plaintiff as though the defendant acted intentionally by diverting the
water but no lawful loss is caused to the plaintiff. So the plaintiff will not compensation for the
damages occurred.

2 RESTITUTIONARY DAMAGES-These are given to restore the original position of plaintiff

before that wrongful act occurred. They are based on tortfeasor’s gain but on the basis of the
plaintiff’s loss. In the Bradford case diversion of water by the defendant causes no personal
loss to the plaintiff so there is no need of restoring the original position of the plaintiff.

3 INJUCTION- Injuction is the order of the court to stop the unlawful activities on the land. It
may be permanent or temporary. It is given when the unlawful activities are continuous. Since
in this case defendant has not done any unlawful activity according to the court so there is no
need of questioning continuous unlawful activity. Therefore no injuction is not required in the
case.

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 BIBLIOGRAPHY
1. Legalserviceindia.com, 2018) <http://www.legalserviceindia.com/article/l337-
Malicious-Prosecution-under-Law-of-Tort.html> accessed 15 August 2018.
2. (Booksupstairs.com, 2018) <http://www.booksupstairs.com/Cyclopedia-of-law-Vol-
12/Express-Malice-and-Malice.html> accessed 14 August 2018.
3. (Infipark.com, 2016) <http://www.infipark.com/articles/malice-in-fact-and-malice-in-
law/> accessed 14 August 2018.
4. (Andrewdstine.com, 2018) <http://www.andrewdstine.com/criminal-intent-malice-
and-motives/> accessed 15 August 2018.
5. http://www.e-lawresources.co.uk/ew/cases/EWCA/Civ/1895/17.html.
6. Three Rivers District Council and Others v Governor and Company of The Bank of
England HL (Gazette 08-Jun-00, Bailii, [2000] UKHL 331, [2000] 2 WLR 1220,
[2000] 3 All ER 1).

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