Martin v Watson

13 July. Lord Keith of Kinkel. My Lords, the background to the proceedings which give rise to this appeal is a long history of mutual antagonism between neighbours. The appellant plaintiff, Mr. Martin, and the respondent defendant, Mrs. Watson, lived next door to each other in Orpington. The garden of each dwelling abutted on that of the other. Relations between the parties and their respective spouses were acrimonious for many years, for reasons which need not be gone into. Eventually the defendant began to make accusations that the plaintiff had indecently exposed himself to her. The first time that she made a specific complaint about this was on 12 July 1988, when she called the police in, but after discussing the matter with them decided not to give a formal statement. She said that the plaintiff had exposed himself to her while standing on a ladder in his garden. In the course of her evidence in the present action the defendant said that the plaintiff had acted in similar fashion on a number of subsequent occasions. What gave rise to the present action for malicious prosecution was an alleged incident of indecent exposure which the defendant said occurred on 20 July 1989. She called in the police and a Police Constable Cratchley attended. The defendant told him that the plaintiff had appeared over the garden fence at about 5 p.m. He was standing on something behind the fence and was naked. He shook his private parts at her. Police Constable Cratchley reported back to the local C.I.D. and on the next day Detective Constable Haynes visited the defendant, who gave him a similar account. Detective Constable Haynes took a full witness statement at the end of which it was recorded that the defendant was prepared to attend court and give evidence about the contents of it. On 27 July Detective Constable Haynes took the defendant to the magistrates' court and obtained a warrant for the arrest of the plaintiff. The defendant was not required to take any part in the proceedings. Nothing further happened until 7 August 1989, when the defendant summoned the police in the person of a Police Constable McKiernan, and informed him that the plaintiff had again indecently exposed himself to her. Police Constable McKiernan took no action because he considered the nature of the defendant's allegation to be preposterous. On 9 August the defendant again called the police and made a further allegation of indecent exposure. Later that day the plaintiff was arrested and taken to the police station, where he was interviewed and bailed to attend court the next day upon a charge related to the events of 20 July 1989. He duly did so but the Crown Prosecution Service offered no evidence and he was discharged.

In the circumstances the plaintiff brought this action for malicious prosecution against the defendant in Bromley County Court. On 13 July 1992 Judge Goodman, after trial, gave judgment in favour of the plaintiff and awarded him damages of £3,500. The defendant was granted leave to appeal to the Court of Appeal, which on 21 January 1994 by a majority (Ralph Gibson and Hobhouse L.JJ., McCowan L.J. dissenting) [1994] Q.B.425 allowed the appeal and set aside the judgment of Judge Goodman. The plaintiff now appeals, with leave given by the Court of Appeal, to your Lordships' House.

It is common ground that the ingredients of the tort of malicious prosecution are correctly stated in Clerk & Lindsell on Torts, 16th ed. (1989), p. 1042, para. 19–05:

“In action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the plaintiff.”

Judge Goodman found that all four of these ingredients had been proved. It was not disputed on behalf of the defendant, either in the Court of Appeal or before your Lordships, that he was entitled so to find as regards the last three ingredients. But it was maintained that he was not entitled to find the first ingredient proved. The majority of the Court of Appeal agreed with that. The basis of the decision was that the defendant had not signed the charge sheet relating to the events of 20 July 1989. It is not entirely clear who did sign that charge sheet...