Given the ambiguity surrounding the word 'malice', the past's judiciary has tried to define it.[1]Attempt was made in Brown v Hawkes where court calls malice as:
Some other motive than the desire to bring to justice a person whom he [the accuser] honestly believes to be guilty.[2]

However, as per Winfield, this definition fails to account that motives may often be various and mixed.[3]Then the court in Bromage v Prosser did the distinction between malice in law and malice in fact, as per the court:
"Malice in common acceptation means ill-will or improper motive against a person, but in its legal sense it means a wrongful act, done intentionally, without reasonable and probable cause."[4]

Thus, malice in law is expressed as implied malice, where the wrongful intention is presumed concerning the unlawful act. Lord Campbell calls malice in law as 'conscious violation of the law to the prejudice of another' Whereas, malice, in fact, is called express malice.[5]

In this paper, the author will expound upon the distinction of malice. Further, elaboration of malice as a primary ingredient and secondary ingredient in the imposition of liability, and an end will take malicious prosecution where malice is the primary factor and defamation where malice is a secondary factor.

Torts where malice is used:

While deciding personal liability, malice or motive is not considered a relevant factor for most cases.[6] E.g. In Bradford Corporations V. Pickels, here defendant in the early 1890s began constructing a series of tunnels and shafts over his land, Which affected water supply to the town and plaintiffs land. As a result price of the defendants land skyrocketed. Plaintiff claimed that the actions were done to coerce the plaintiff to purchase the defendants land at a high price. It was held by the court that "If the act apart from motive gives rises to damage without legal injury, the motive, however reprehensible, will not supply that element".[7]

Malice as a primary or secondary element

Malice is a crucial ingredient for the imposition of liability in case of malicious prosecution, abuse of process, misfeasance in a public office and conspiracy. However, it has been argued that the aforementioned torts are more in terms of abuse of public power than malice. For E.g. misfeasance applies only to public officers who act in bad faith.[8]This is evident by the court decision in Gregory v Portsmouth City Council where it held that while deciding malicious prosecution, it needs to be proved that "the defendant has abused the coercive powers of the state".[9]

Whereas, in torts like a private nuisance and defamation malice is not a precondition to liability. Here, malice plays a Contingent and a secondary role, where malice's relevance depends upon the case's factors. Malice in such cases sheds light on the genuinely fundamental question of whether the particular defence is available or not.[10]

Malicious prosecution

Apart from showing that reasonable and probable cause was absent, it also needs to be proved that the prosecution was initiated in a malicious spirit or with an improper motive and not in furtherance to bring the law into effect.[11]Thus malice, in fact, needs to be established than malice in law, where the burden of proof falls on the plaintiff.[12]

It also needs to be noted that malice is kept separate and independent of reasonable and probable cause as there may arise honest belief in the accusation. This view is further propounded by Lord Esher in Brown v Hawkes, the claimant in the case of malicious prosecution must prove malice with some independent evidence, for the simple reason that malicious motives may exist at the same time as a genuine, truthful belief in the guilt of the accused.[13] Also, the plaintiff's mere acquittal does not prove malice, factors like the spirit of reprisal, recklessness, long-standing animosity e.t.c need to be proved.[14]

Defamation

Malice is not an essential ingredient in defamation which is evident by Lord Bramwell's remark that:
A person may be the publisher of a libel without a particle of malice or ill-spite.[15]

Malice becomes an important determinant while determining defence of truth, fair comment and qualified privilege.[16] Fair comment is considered free of malice, a rule to determine if a statement is a fair comment or malice has been laid down in Turner v. Metro-Goldwyn-Mayer.[17]

The court held that it doesn't matter what the defendant said, what matters to establish is if a truthful man would have made the same condemnation. Malice, as a factor becomes important while claiming qualified privilege. To claim qualified privilege, it needs to be proved that statement was made on a privileged occasion, and it is free from malice. If a person uses the occasion for some other motive than for which it was meant, he loses the defence.[18]

The mode of publication can also be a determinant of malice.[19] An unnecessary circulation of the publication frequently notices this. E.g. In Sadgrove v. Hole.[20]Hole sent a postcard to a third party, containing scandalous statements about the plaintiff. Though the plaintiff's name was not written, the defendant was still held liable as a third party acquainted with both plaintiff and defendant. Lack of faith in the truth of the made can also be taken as evidence of malice. Nevertheless, arriving at any conclusion in carelessness or following any opinion due to irrational bias cannot be constituted as malice. E.g. Same was held In Broadway Approvals Ltd. v. Odhams Press Ltd.[21]

Conclusion
In the end, the research paper has engaged critically with the subject matter of the project, by having complete a comprehensive breakdown of malice into malice of law and fact and then seeing its essence as a primary and secondary ingredient in respective torts as mentioned in the paper.

End-Notes:

1. GHL Fridman, 'Malice in the Law of Torts' [1958] 21(05) Modern Law Review accessed 7 January 2021.
2. Brown v. Hawkes [1891] 2 Q.B.
3. W.V.H. Rogers, 'winfield and jolowicz on tort' (16th edn., 2002) 103.
4. Bromage v. Prosser (1825) 4 B. & C.
5. Fridman, (n 1) 375.
6. RK Bangia, 'Law Of Torts' (21st edn, Allahabad Law Agency 2008) 25.
7. Bradford Corporation v Pickles [1895] AC 587.
8. John murphy, 'Malice As An Ingredient Of Tort Liability' [2019] 78(02) The Cambridge Law Journal accessed 7 January 2021.
9. Gregory v Portsmouth City Council [2000] 1 AC 419.
10. Fridman, (n 1) 368.
11. Ratanlal and Dhirajlal , Law of Torts in India (28th edn, Lexis Nexis 2019) 71.13.1.5.
12. Ratanlal and Dhirajlal ,( n 11) 71.13.1.5.
13. Brown v. Hawkes [1891] 2 Q.B.
14. Bangia, (n 6) 213.
15. Fridman, (n 1) 369
16. Rogers, (n3) 436.
17. Turner v. Metro-Goldwyn-Mayer, [1950] 1 All E.R. 449.
18. Rogers, (n3) 449.
19. Rogers, (n3) 452.
20. Sadgrove v. Hole [1901] 2 K.B. 295.
21. Broadway Approvals Ltd. v. Odhams Press Ltd. [1965] 1 W.L.R. 805.