Given the ambiguity surrounding the word 'malice', the past's judiciary has
tried to define it.Attempt was made in Brown v Hawkes
where court calls
Some other motive than the desire to bring to justice a person whom
he [the accuser] honestly believes to be guilty.
However, as per Winfield,
this definition fails to account that motives may often be various and
mixed.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
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
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. E.g. In Bradford Corporations V. Pickels
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".
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.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".
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.
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.Thus
malice, in fact, needs to be established than malice in law, where the burden of
proof falls on the plaintiff.
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
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. 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
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.
Malice becomes an important determinant while determining defence of truth, fair
comment and qualified privilege. 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
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.
The mode of publication can also be a determinant of malice. An unnecessary
circulation of the publication frequently notices this. E.g. In Sadgrove v.
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
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.
- GHL Fridman, 'Malice in the Law of Torts'  21(05) Modern Law
Review accessed 7 January 2021.
- Brown v. Hawkes  2 Q.B.
- W.V.H. Rogers, 'winfield and jolowicz on tort' (16th edn., 2002) 103.
- Bromage v. Prosser (1825) 4 B. & C.
- Fridman, (n 1) 375.
- RK Bangia, 'Law Of Torts' (21st edn, Allahabad Law Agency 2008) 25.
- Bradford Corporation v Pickles  AC 587.
- John murphy, 'Malice As An Ingredient Of Tort Liability'  78(02) The
Cambridge Law Journal accessed 7 January 2021.
- Gregory v Portsmouth City Council  1 AC 419.
- Fridman, (n 1) 368.
- Ratanlal and Dhirajlal , Law of Torts in India (28th edn, Lexis Nexis 2019)
- Ratanlal and Dhirajlal ,( n 11) 126.96.36.199.
- Brown v. Hawkes  2 Q.B.
- Bangia, (n 6) 213.
- Fridman, (n 1) 369
- Rogers, (n3) 436.
- Turner v. Metro-Goldwyn-Mayer,  1 All E.R. 449.
- Rogers, (n3) 449.
- Rogers, (n3) 452.
- Sadgrove v. Hole  2 K.B. 295.
- Broadway Approvals Ltd. v. Odhams Press Ltd.  1 W.L.R. 805.