Brown v Hawkes
| Jurisdiction | England & Wales |
| Date | 1891 |
| Year | 1891 |
| Court | Court of Appeal |
Malicious Prosecution - Reasonable and Probable Cause - Honest belief of Prosecutor - Reasonable Care in informing himself of true Facts - Evidence of Malice.
In an action for malicious prosecution the jury found, in answer to specific questions — first, that the defendant did not take reasonable care to inform himself of the true facts of the case; secondly, that the defendant honestly believed in the full charge which he laid before the magistrates; thirdly, that the defendant was actuated by malice and indirect motives in the proceedings taken against the plaintiff. The judge held on these findings that there was an absence of reasonable and probable cause, and judgment was entered for the plaintiff. On appeal:—
Held, by Cave, J., that, as the facts were not in dispute, the judge was wrong in leaving the first question to the jury; that, in view of the finding of the jury as to the honest belief of the defendant, and in the absence of evidence of express malice, the jury could not reasonably draw the inference that the defendant was actuated by indirect motives; and that consequently the defendant was entitled to judgment.
By A. L. Smith, J., that the judge was right in asking the jury whether the defendant took reasonable care to inform himself of the true facts; that the findings of the jury, when taken together, and applied to the facts given in evidence, amounted to a finding that the defendant was actuated by malice; that there was evidence of malice on which the jury could act; and that the plaintiff was entitled to judgment.
By the Court of Appeal (Lord Esher, M.R., and Bowen and Kay, L.JJ.), affirming the judgment of Cave, J., that although the absence of reasonable and probable cause is some evidence from which malice may be inferred, the jury, by their finding as to the honest belief of the defendant, had negatived any inference which depended solely on such evidence; and that, in the absence of any other evidence of indirect motive, the finding of the jury that the defendant was actuated by malice could not be supported.
APPEAL from the county court of Clerkenwell, in an action for malicious prosecution, remitted from the High Court, and tried with a jury. A full statement of the facts is not necessary for the purposes of this report; stated briefly they were as follows:—
The plaintiff called at the shop of the defendant, a bootmaker at Bournemouth, and asked to see some boots for his family. The shopwoman refused to give credit, and a porter was sent, with instructions not to leave any boots without being paid for them, to a house named by the plaintiff. The plaintiff's family were not at the house when the porter reached it, but he left a number of pairs of boots there. The plaintiff and his family left for London that evening, taking with them some boots which had not been paid for. Soon afterwards one Adams, a friend of the plaintiff, called at the defendant's shop and explained that the plaintiff had gone to London without paying because he had found that the train left earlier than he had supposed, and said that the defendant might be satisfied that the boots would be paid for, that there was to be a sale of the plaintiff's furniture, and that he was coming back to Bournemouth. The defendant replied that he did not believe the excuse about the train, and that it was all “bosh”; that he did not believe that the plaintiff, who was, he said, an undischarged bankrupt, had any furniture, or would come back. The defendant also stated that the plaintiff was a damned rogue, and he would bring him back. He added, “He will come back if I fetch him,” and that he would place the matter in the hands of the police and obtain a warrant. The defendant made inquiries and found that the plaintiff had told other persons, as he had told the shopwoman, that he was going abroad. The defendant, the same evening, stated the facts to the magistrates' clerk, and obtained a warrant for the plaintiff's apprehension. Four days afterwards the defendant received a letter from the plaintiff, from an address in London, asking for the bill for the boots. The defendant gave this letter to the police of Bournemouth, and the plaintiff was arrested the same day in London and taken to Bournemouth, where he was brought before the magistrates and discharged.
It appeared that some time previously the plaintiff had received his discharge in bankruptcy, subject to four months' suspension, and that at the time of his going to London he had made arrangements for the sale of some furniture belonging to his wife, and had left his London address with the auctioneer, and also at the post office at Bournemouth.
The following questions were put by the judge and answered by the jury as follows:—
First: Did the defendant take reasonable care to inform himself of the true facts of the case when he proceeded against the plaintiff? — Answer: No.
Secondly: Did the defendant honestly believe in the full charge which he laid before the magistrates? — Answer: Yes.
Thirdly: Was or was not the defendant actuated by malice and indirect motives in the proceedings taken against the plaintiff? — Answer: Yes.
The judge held upon these findings that there was an absence of reasonable and probable cause, and directed judgment to be entered for the plaintiff for the amount of the verdict.
1890. June 25. Murphy, Q.C., and R. M. Bray, for the defendant.
Cock, Q.C., and Atherley Jones, for the plaintiff.
1891. Jan. 27. CAVE, J. (after stating the facts in detail, delivered judgment as follows). At the hearing of the appeal it was contended on behalf of the appellant, that the judge ought to have held that there was no proof of absence of reasonable and probable cause, and that there was no evidence for the jury in support of either the first or the third findings. My brother A. L. Smith has come to the conclusion that the judge was right in holding that there was an absence of reasonable and probable cause. In the face of his...
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