Malice in Law of Torts

1 January 2017

There can be little doubt that this complaint was justified. Despite the well-known division and discussion by Bayley J. of “ malice in fact ” and “ malice in law,” ’ which can be taken as the starting point of modern analysis of malice, other judges have not hesitated to enlarge upon the possible meanings of malice, until it seems that there must be judicial authority for any or almost any meaning that a writer wishes to attribute to the word.

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However, these various interpretations can be grouped under four main headings: (1) spite or ill-will; (2) any improper motive; (8) the intent to do a wrongful act; (4) the intent to inflict injury without just cause or excuse. It is quite clear that in this sense the word is being used colloquially, not as a term of art. “Malice in common acceptance,” said Parker C. J. in 1718’ “is a desire of revenge or settled anger against a particular person. ” A hundred years later, in a famous passage in Bromage v. Prosser, Bayley J. called this ‘‘ malice in fact ” and said it meant “ill-will against a person.

The effect of later authorities was summed up by McCardie J. ’s expression “ vindictive feeling. ” When used in this sense, therefore, malice involved the desire to satisfy a personal grudge and thereby to benefit the person who acted from malice. But the older idea of vengeance, which as just seen involved at least emotional benefit to the malicious person, tended in the latter part of the nineteenth century to become absorbed in a broader notion of any motive which was regarded as undesirable by the courts of approval and encouragement. As a result, “malice ” came to mean any improper motive.

This is the description of malice as the intent to inflict injury without just cause or excuse. Parker C. J. in Jones v. Givin said nothing about intention, but did say that malice as a term of law always excluded a just cause. It was Bayley J. 17 who introduced the notion of intention when he called malice in law “ a wrongful act done intentionally without just cause or excuse,” a phrase which as we shall see bristles with problems. But the language of Bayley J. was repeated or echoed throughout the nineteenth century la and still seems to be favoured by the courts.

Thus in Re N o h in 1858 malice was described as “ where a party in full possession of his faculties . . . chooses to commit injuries upon another without reasonable cause. ” The use of the word “reasonable” is an interesting variant, although sometimes it has been said that malice and lack of reasonable cause are the same thing. But this must be a proposition of doubtful validity, at least in respect of the tort of malicious prosecution if nowhere else, though it can be said that lack of reasonable cause for a prosecution may well evidence malice.

However the statement in Re Nolan illustrates how flexible the idea of malice in law became after Bayley J. However, his words were not forgotten, nor were those of Parker C. J. Collins M. R. in Read’s casea0 said that the action of the defendant in inducing a breach of contract by a combination to coerce X into dismissing the plaintiff because he was not a member of the defendant’s society was malicious or, he went on, “ if the phrase be preferred ‘ without just cause or excuse ). ” Later in his judgment he talked of “what might in given circumstances be ‘ just cause’ or in other words sutiice to negate malice.

More recently, in Jones v. Motor Surveys Ltd. ,’l Roxburgh J. referred to malice as the “wilful and intentional doing of damage without just cause or excuse ”; , and in 1955 the Court of Appeal 22 quoted with approval the words of Bayley J. and went on to say that ‘‘ intentionally ” in Bayley J. ’s definition referred to the doing of the act; it did not mean that the defendant meant to be spiteful, though sometimes, as for instance to rebut a plea of privilege in defamation, malice in fact had to be proved.

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