MOHAMMED AMIN V BANNERJEE(Abridged)


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MOHAMMED AMIN V JOGENDRA KUMAR BANNERJEE: PC 1947

[1947] AC322


Coram: Sir John Beaumont

The Board considered an action for malicious prosecution. Sir John Beaumont said: ‘The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt CJ in Savile v Roberts that damages might be claimed in an action under three heads, (1) damage to the person, (2) damage to property, and (3) damage to reputation, and that rule has prevailed ever since. That the word ‘prosecution’ in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance, falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company ( Quartz Hill Consolidated Gold Mining Co v Eyre ). The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowen LJ in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant’s reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. … but a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage, and in such a case damage to reputation will be presumed.’