Some litigants at times commence proceedings in response to a ‘prosecution’ which they believe, should have never been brought against them, after the case against the client is dismissed.

This happens mainly in the criminal jurisdiction where the aggrieved client would like to institute proceedings against the police or the state, but it can also happen in civil proceedings where some clients are intent on bringing matters against former claimants for “maliciously prosecuting a case”.

Again, because of the exorbitant costs of these kinds of claims (‘counter-claims’ actually) we always urge caution and carefully examine every detail of the original case brought against our client, before we provide advice that a client can proceed on the basis of reasonable prospects.

For example, in the case A v NSW in the High Court (2007), the High Court held that when a “a plaintiff alleges that a prosecutor acted maliciously, that is, for an improper purpose, not for the purpose of carrying the law into effect, the circumstances of the prosecution may determine the nature of the case the plaintiff will seek to make.”

In other words, the various circumstances surrounding the original case will need to be very carefully examined and a decision is to be made that the case was brought maliciously in light of ‘all the circumstances,’ before we can say that the case will have good and reasonable prospects of success.

The ‘circumstances’ then are all important, this is because very simply, a claimant against the client in the original case (whether they be police or a civilian claimant) will not tell the client, that its original case against the client was a ‘malicious prosecution’. Hence the careful analysis of all the facts (and in detail) is an absolute must.

The moral of the story is (as is the usual case) that you need to meticulously examine each of the facts and ensure that you leave no stone unturned before commencing any proceedings.

At Papallo Kouchoo Lawyers, we do our utmost to ensure that there are good returns in relation to any case, and we do that before we commence proceedings, ensuring to uphold your rights to the maximum extent of the law.

If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.