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THE NORTH EASTERN RAILWAY COMPANY
IN THE COURT OF APPEAL
1883 June 22.
(CA) ( 11 QBD 440)
11 Q.B.D. 440
BEFORE THEIR LORDSHIPS
BOWEN and FRY, L.JJ.
Sir F. Herschell, S.G., and Digby Seymour, Q.C. (Gainsford Bruce and J. L. Walton with them), for the defendants
Sir H. Giffard, Q.C., and McClymont, for the plaintiff
Solicitor for plaintiff: J. Balfour Allan, for W. M. Skinner, Sunderland.
Solicitors for defendants: Williamson, Hill, AND Co., for George S. Gibb, York
TORT AND PERSONAL INJURY:- MALICIOUS PROSECUTION – Reasonable and Probable Cause – Burden of Proof – Direction to Jury.
HEALTHCARE AND LAW – MEDICAL MALPRACTICE:- Action consequent upon allegation that medical practitioner colluded with third party to cause injuries so as to obtain compensation – Acquittal of medical practitioner – Whether ground for action in malicious prosecution – Relevant consideration
SUMMARY AND HISTORY
In an action for malicious prosecution the burden of proof as to all the issues arising therein lies upon the plaintiff; and although the plaintiff proves that he was innocent of the charge laid against him, and although the judge in order to enable himself to determine the issue of reasonable and probable cause, leaves subsidiary questions of fact to the jury, nevertheless the onus of proving the existence of such facts as tend to establish the want of reasonable and probable cause on the part of the defendant, rests upon the plaintiff.
Decision of the Queen’s Bench Division, reversed.
The plaintiff, a surgeon, had attended one M. for bodily injuries alleged to have been sustained in a collision upon the defendants’ railway. M. brought an action against the defendants, which was compromised by the defendants paying a large sum for damages and costs. Subsequently the directors of the defendants’ company, having received certain information, caused the statements of certain persons to be taken by a solicitor; these statements tended to shew that the injuries of which M. complained were not caused at the collision, but were produced wilfully by the plaintiff, with the consent of M., for the purpose of defrauding the defendants. These statements were laid before counsel, who advised that there was good ground for prosecuting the plaintiff and M. for conspiracy. The defendants accordingly prosecuted the plaintiff, but he was acquitted. In an action for malicious prosecution, the judge directed the jury to find whether the defendants had taken reasonable care to inform themselves of the true state of the case, and whether they honestly believed the case which they laid before the magistrates; the jury having answered these questions in the affirmative, the judge entered the judgment for the defendants:-
Held, that the direction to the jury was correct, that upon the facts and the findings of the jury, the defendants had reasonable and probable cause for prosecuting the plaintiff, and that the judge had rightly entered the judgment for the defendants.
ACTION for malicious prosecution.
At the trial before Cave, J., and a jury, at the Durham Summer Assizes, 1882, the following material facts were proved in evidence, or admitted:-
On the 10th of September, 1880, a collision occurred at Ferry Hill station, on the defendants’ railway, and one M. McMann alleged that he had thereby sustained injuries. McMann was attended by the plaintiff, G. A. Abrath, a doctor of medicine and surgery, and McMann brought an action against the defendants to recover damages. The action by McMann stood for trial at the Northumberland Summer Assizes, 1881, but it was settled by the defendants paying to the plaintiff McMann, 725l. damages, and 300l. costs.
After the settlement, the directors of the defendants’ company received certain information from Rayne, a surgeon, who was the medical adviser of the railway company in reference to accidents, and who was authorised to employ detectives on behalf of the company. The directors thereupon employed a solicitor named Dix, to see certain persons and take their statements. Some of these persons were relatives of McMann, and others were well acquainted with him, and their statements, if true, shewed that a fraud had been perpetrated on the defendants; that McMann had not been seriously injured in the collision, that the injuries of which McMann had complained had been wilfully produced by the present plaintiff, Dr. Abrath, with the consent of McMann, for the purpose of getting money from the defendants. These statements were submitted to the directors of the defendants’ company, who thereupon ordered that the opinion of counsel should be taken, and counsel advised that there was a good case for prosecuting a charge of conspiracy against McMann and Dr. Abrath, his medical adviser. Two eminent medical men were of opinion that the case of the alleged injuries to McMann was an imposture.
Thereupon the defendants caused an information to be laid before justices, against the plaintiff, Dr. Abrath, on a charge of conspiracy to cheat and defraud the defendants. He was committed for trial and was tried in January, 1882, and acquitted, the foreman of the jury adding that it was the unanimous wish of the jury that he should leave the Court without a stain upon his character. He thereupon commenced the present action, and at the trial certain witnesses were called who were acquainted with McMann, and gave evidence to shew that his injuries were real and not feigned, and these witnesses had not been seen on behalf of the defendants before they instituted proceedings against the plaintiff. It was also shewn that the persons on whose statements the directors had ordered the prosecution to be instituted against the plaintiff, were of bad character, and one of them had been convicted several times, and also that their own statements, if true, established that they were accomplices with the plaintiff and McMann in the conspiracy. For the defendants it was not disputed that the plaintiff was innocent of the conspiracy, but it was contended that they were justified in instituting the prosecution upon the faith of the statements laid before the directors.
Cave, J., in summing up to the jury, told them that it was for the plaintiff to establish a want of reasonable and probable cause and malice, and then proceeded as follows: “I think the material thing for you to examine about is, whether the defendants in this particular case took reasonable care to inform themselves of the true facts of the case. That, I think, will be the first question you will have to ask yourselves – did they take reasonable care to inform themselves of the true facts of the case? Because, if people take reasonable care to inform themselves, and notwithstanding all they do, they are misled, because people are wicked enough to give false evidence, nevertheless they cannot be said to have acted without reasonable and probable cause; with regard to this question, you must bear in mind that it lies on the plaintiff to prove that the railway company did not take reasonable care to inform themselves. The meaning of that is, if you are not satisfied whether they did or not, inasmuch as the plaintiff is bound to satisfy you that they did not, the railway company would be entitled to your verdict on that point. Then there is another point, and that is, when they went before the magistrates, did they honestly believe in the case which they laid before the magistrates? If I go before magistrates with a case which appears to be good on the face of it, and satisfy the magistrates that there ought to be a further investigation, while all the time I know that the charge is groundless, then I should not have reasonable and probable cause for the prosecution. Therefore, I shall have to ask you that question along with the others, and according as you find one way or the other, then I shall tell you presently, or I shall direct you, whether there was or was not reasonable and probable cause for this prosecution. If you come to the conclusion that there was reasonable and probable cause, or rather that those two questions should be answered in the affirmative – that is, that the defendants did take care to inform themselves of the facts of the case, and they did honestly believe in the case which they laid before the justices, then I shall tell you, in point of law, that this amounts to reasonable and probable cause, and in that case the defendants will be entitled to your verdict; if, on the other hand, you come to the negative conclusion, if you think that the defendants did not take reasonable care to inform themselves of the facts of the case, or that they did not honestly believe the case which they laid before the magistrates, then in either of those cases you will have to ask yourselves this further question, were they in what they did actuated by malice, that is to say, were they actuated by some motive other than an honest desire to bring a man whom they believed to have offended against the criminal law to justice? If you come to the conclusion that they did honestly believe that, then they are entitled again to your verdict, but if you come to the conclusion that they did not honestly believe that, but that they were actuated by some indirect motive other than a sincere wish to bring a supposed guilty man to justice, then the plaintiff is entitled to your verdict, and then it will become necessary to consider the question of damages.”
The learned judge then commented upon the facts of the case, pointing out that if the injuries to McMann were feigned and produced wilfully, and if his case was one of imposture, the defendants would be compelled to rely upon the evidence of persons who were aware what was going on, and further pointing out that as to the fact of conspiracy the defendants could not expect to obtain the evidence of persons of good character; he then proceeded as follows: “Now, gentlemen, these are the circumstances which I think point to the question of reasonable care having been taken, Did they take, or did they not take, reasonable care in informing themselves of the true facts of the case? As I have said just now, the plaintiff has to satisfy you that they did not; if you are satisfied that they did, you ought to answer that question in favour of the defendants. If, however, you are satisfied that they did not take reasonable care, then you must answer it for the plaintiff.”
The learned judge concluded his summing-up as follows: “The questions which I ask you are these:- First, did the defendants take reasonable care to inform themselves of the true state of the case? Secondly, did they honestly believe the case which they laid before the magistrates? If both questions are answered in the affirmative, that they did take reasonable care, and they honestly believed the case they laid before the magistrates, that is a verdict for the defendants, because, please bear in mind, that it is for the plaintiff to prove that they did not. Then if either question is answered in the negative, that is, if the defendants did not take reasonable care, or if they did not honestly believe the case which they laid before the magistrates, then you must ask yourselves this further question, were the defendants actuated by any indirect motive in preferring this charge? If they were not, then again your verdict must be for the defendants. If they were, then you must find your verdict for the plaintiff, and then in that case you must ask yourselves what damages you give.”
The jury found, first, that the defendants had taken reasonable care to inform themselves of the true state of the case; and, secondly, that the defendants honestly believed the case which they laid before the magistrates. The jury did not answer the third question. The learned judge held that these findings amounted to a verdict for the defendants, and gave judgment for the defendants.
The plaintiff having obtained in the Queen’s Bench Division a rule for a new trial on the ground of misdirection, it was made absolute by Grove and Lopes, JJ.(1). These learned judges were of opinion that in an action for malicious prosecution where the defendant undertakes to bring forward facts for the purpose of satisfying not the jury but the judge that there was reasonable and probable cause for prosecuting, the onus of proving those facts is upon the person who brings them forward; that the defendants only could know whether they had taken reasonable and proper care to inform themselves of the true state of the case, and whether they honestly believed the case which they laid before the magistrates; that the general rule should be followed, which was that the onus rested on the person affirming; and that there had been a misdirection by Cave, J., in telling the jury that the onus lay upon the plaintiff to prove that the defendants had not taken reasonable care to inform themselves of the true state of the case, and had not honestly believed the case which they laid before the magistrates.
The defendants appealed.
During the argument in the Court of Appeal it was agreed by the parties and ordered by the judges that the plaintiff should be at liberty to appeal from the judgment of Cave, J., and to raise the questions whether there was reasonable and probable cause for instituting the prosecution and whether the judgment had been rightly entered by Cave, J., on the findings of the jury.
June 20, 21, 22.
Sir F. Herschell, S.G., and Digby Seymour, Q.C. (Gainsford Bruce and J. L. Walton with them), for the defendants:
The burden of proof was on the plaintiff: it was incumbent on him to shew that the defendants prosecuted him without reasonable or probable cause: Mitchell v. Jenkins (2); Walker v. South Eastern Railway Company (3). An action for malicious prosecution is one of the exceptions to the rule that a party is not bound to prove a negative: 1 Greenleaf on Evidence, part 2, ch. 3, par. 78, p. 98 (13th ed.).
(1) Ante, p. 79.
(2) 5 B. AND Ad. 588, at p. 595.
(3) Law Rep. 5 C. P. 640, at p. 644.
Further the plaintiff was bound to prove that the defendants acted maliciously, that is, wrongfully; and “malice in a legal sense means a wrongful act done intentionally without just cause or excuse:” per Martin, B., in Johnson v. Emerson (1), citing McPherson v. Daniels. (2) It was for the plaintiff to prove the absence of an honest belief on the part of the defendants that he was guilty of conspiracy: Turner v. Ambler. (3) The burden of proof rested upon the plaintiff throughout the trial: Sutton v. Sadler (4); Pickup v. Thames Insurance Co. (5). If the facts laid before the magistrates by the defendants shewed a primâ facie case of conspiracy against the plaintiff, their effect cannot be displaced by proof that other evidence might have been given. The finding of the jury may mean either that the defendants did take proper care to institute inquiries, or that they were not satisfied that the defendants did not make reasonable inquiries; whichever the jury may have meant, the defendants are entitled to succeed. There was no misdirection; but if there had been any, it would be immaterial; it was for the jury to find the facts on which the question of reasonable and probable cause depended, but the judge must determine whether the facts found did constitute reasonable and probable cause: Lister v. Perryman. (6) If the decision of the Queen’s Bench Division be upheld, the difference between an action for trespass and false imprisonment and an action for malicious prosecution will be wholly done away with and lost.(7)
(1) Law Rep. 6 Ex. 329, at p. 373.
(2) 10 B. AND C. 263, at p. 272.
(3) 10 Q. B. 252.
(4) 3 C. B. (N.S.) 87, at p. 98; 26 L. J. (C.P.) 284, at p. 287.
(5) 3 Q.B.D. 594.
(6) Law Rep. 4 H. L. C. 521.
(7) Sir F. Herschell, S.G., in the course of his argument, stated that he should contend, if it became necessary for him to do so, that the defendants being a corporation no action would lie against them for malicious prosecution, and that this question was not concluded by authority before a court of appeal. Edwards v. Midland Ry. Co. (6 Q.B.D. 287) was cited by Fry, L.J.; owing to the view taken by the Court in delivering judgment, it is unnecessary to notice this point.
Sir H. Giffard, Q.C., and McClymont, for the plaintiff:
For the defendants it is not now contended that the plaintiff was guilty of the offence of conspiracy; and as he was innocent, and as at the trial of this action no evidence was adduced of any facts leading to the conclusion that he was guilty, a case of malicious prosecution was made out. It is unnecessary for the plaintiff to further contend that evidence of innocence alone is primâ facie evidence of want of reasonable and probable cause and of malice.
No doubt the burden of proof was in the first instance upon the plaintiff; but it shifts continually: Waring v. Waring (1); and it is impossible to lay down any rule as to when the burden of proof must be taken to have shifted; suppose that upon an indictment for felony the defence is an alibi; it would be a misdirection for the judge to tell the jury that if they are in doubt as to the truth of the alibi they must acquit the accused; for the burden of proving the alibi is upon the accused who sets it up; and yet the burden of proving the accused to be guilty is upon the Crown. In an action for malicious prosecution the plaintiff need prove only that he was prosecuted at the instigation of the defendant, without reasonable or probable cause, and with malice. The burden of proof lies on him who insists on the affirmative, and in the present case the defendants insisted that they had used due care in making reasonable inquiries. Suppose an indictment for bigamy to which the defence is that the first marriage was void; surely it is for the defendant to give evidence impeaching the validity of the first marriage; this appears to have been the course adopted in Rex v. Butler (2), although it was ultimately in effect decided that the burden of proof had shifted, and that the Crown was bound to displace the case set up by the accused. The burden of proof of a fact lying within the peculiar knowledge of a party to a legal proceeding lies upon him, and in 1 Phillipps on Evidence, ch. 11, p. 556 (10th ed.), it is said that “in an action for penalties under the old game laws, though the plaintiff must aver, in order to bring the defendant within the act, that he was not duly qualified, yet it is not necessary to disprove his qualification, but it will be for the defendant, if he can, to prove himself qualified.'” Rex v. Turner (3), which was a conviction for breach of the game laws, was to the same effect. In the present case the facts as to the inquiries made by the defendants lay exclusively within their knowledge. A prosecution may be not only maliciously instituted, but also maliciously continued; for if fresh facts tending to show innocence come to light during the investigation, the prosecution will become malicious unless it be discontinued. At the trial of this action the defendants admitted that the plaintiff was innocent, and their only excuse was that they had been misled. The expressions of the judges in Willans v. Taylor (1) support the contention for the plaintiff.
(1) 6 Moore, P. C. 341, at p. 355.
(2) Russ. AND Ry. 61.
(3) 5 M. AND S. 206.
[BOWEN, L.J.:- That case appears to have been decided on its special facts; the evidence of the defendant was material to support the indictment, but he declined to appear as a witness.]
The real question is, which party is putting forward the bonâ fide exercise by the defendants of the power of inquiry, and this is a matter which it is plainly for the defendants to establish.
In support of the appeal against the judgment of Cave, J., if this Court is of opinion that there was no mis-direction, it is contended upon the admitted facts and upon the findings of the jury that there was a want of reasonable and probable cause for instituting the prosecution against the plaintiff for conspiracy. The directors ought to have acted with more caution: they accepted and acted upon the statements of persons who, if there had been a conspiracy to defraud the defendants, must have been parties to it: evidence coming from a tainted source ought to have been viewed with suspicion and rejected.
The counsel for the defendants were not called upon to reply.
This is an action for malicious prosecution, and the alleged offence for which the plaintiff was prosecuted was a conspiracy with a person named McMann to cheat and defraud the defendants. The points, which it is necessary for the plaintiff to substantiate in order to make out his claim, are not really in doubt: they have been decided over and over again, and have been decided for more than one hundred years; it is not enough for the plaintiff to shew, in order to support the claim which he has made, that he was innocent of the charge upon which he was tried; he has to shew that the prosecution was instituted against him by the defendants without any reasonable or probable cause and with a malicious intention in the mind of the defendants, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact. It has been decided over and over again that all these points must be established by the plaintiff, and that the burden of each of them lies upon the plaintiff.
(1) 6 Bing. 183; 3 Moo. AND P. 350; 2 B. AND Ad. 845.
In considering this case, I find great difficulty in expressing myself clearly, and I shall say at the outset that I envy the clearness with which my brother Cave summed up this case to the jury. I wish I could express what I intend to say as clearly and as concisely as he stated this case to the jury. A summing-up in an action for malicious prosecution I have never read which I more admired. In order to establish the plaintiff’s claim, I have said that he must make out three propositions; and if he fails in making out any one of them, he fails in proving what is necessary to support his claim. It is admitted that the burden of proof of the whole lies upon the plaintiff, and that the burden of proof of each of the major divisions lies upon him; but it is said that if in any one of those three propositions a minor proposition is raised which must be proved in order to support the proposition in question, then the burden of proof is not upon the plaintiff. Now it seems to me that whenever a claim or defence consists of several necessary parts, he on whom the burden of proof of the whole rests, has also on him the burden of proof of each of those necessary parts. The burden of proof lies on the plaintiff to shew that there was an absence of reasonable and probable cause: if in order to shew the absence of reasonable and probable cause there are minor questions which it is necessary to determine, it seems to me that the burden of proving each of those minor questions lies upon the plaintiff, just as much as the burden of proving the whole does. In order to shew that there was an absence of reasonable and probable cause for instituting the prosecution for conspiracy, I cannot doubt that the plaintiff was bound to give some evidence of the circumstances under which the prosecution was instituted, and I wholly differ from the suggestion that it is sufficient for the plaintiff to shew that he was innocent of conspiracy, and that in the end there was no substantial ground for charging him with conspiracy. If the plaintiff merely proved that, and gave no evidence of the circumstances under which the prosecution was instituted, it seems that the plaintiff would fail; and a judge could not be asked, without some evidence of the circumstances under which the prosecution was instituted, to say that there was an absence of reasonable and probable cause. The evidence, which is to determine the question whether there was reasonable and probable cause, must consist of the existing facts or the circumstances under which the prosecution was instituted. In the present case, evidence was given of circumstances upon which the learned judge had to determine, whether they amounted to reasonable and probable cause for instituting the prosecution. These facts or circumstances being in evidence, another question of fact arose which it was necessary to determine in order to enable the judge to give his opinion upon all the existing circumstances and facts. That additional question of fact was, whether the defendants had taken reasonable care to inform themselves of the true state of the case. Strong evidence had been given that certain testimony or statements had been laid before those who instituted the prosecution for which the action was brought. If the point whether reasonable care had been taken, had not been raised, the judge would not have assumed a want of reasonable care in that respect; it would have been assumed on all sides that reasonable care had been taken. But it signifies not what statements were laid before those who instituted the prosecution, if they received them carelessly, or if they did not take reasonable care to inform themselves of other facts with which they might have made themselves acquainted. It has been decided that the question whether reasonable care has been taken by those who instituted the proceedings, to inform themselves of the true state of the case, must be determined one way or the other, in order to enable the judge to give his opinion. Therefore, it becomes a necessary part of the question whether there was an absence of reasonable cause, to determine whether reasonable care was taken by the defendants to inform themselves of the true state of the facts. The question, whether reasonable care has or has not been taken by a prosecutor to inform himself of the real state of the case, is not merely a piece of evidence to prove some fact, but it is a question which is itself to be decided by evidence, and upon which evidence to prove and disprove it may be given. It is a necessary part of the question whether there was reasonable and probable cause, because if there has been a want of reasonable care on the part of the prosecutor to inform himself of the true state of the case, then there must be a want of reasonable and probable cause. It is one of those facts for which I have tried to find a proper designation, but I have not succeeded in finding one satisfactory to my mind; it may be described as a “fundamental” fact, in order to try to distinguish it from a fact which is merely evidence of something else. It is a fact which it would be necessary to allege and prove, and it is not merely a fact which is evidence of something which is to be alleged and proved.
Therefore, it is to my mind a fact of which the burden of proof lies upon the person who alleges it, and it falls within the rule which I have stated. The burden of proof of satisfying a jury that there was a want of reasonable care lies upon the plaintiff, because the proof of that want of reasonable care is a necessary part of the larger question, of which the burden of proof lies upon him, namely, that there was a want of reasonable and probable cause to institute the prosecution. It follows, therefore, to my mind, that if the direction of Cave, J., to the jury was simply that it was a necessary part of the question whether there was a want of reasonable and probable cause for instituting the prosecution against the plaintiff, that it should be decided whether reasonable care had been taken by the defendants to inform themselves of the true state of the case, and that the burden of proving that minor proposition, as well as the whole proposition, lay upon the plaintiff, it is a direction which cannot be impeached. This was in substance the direction of Cave, J., and I feel certain that his meaning was understood by the jury. However, the learned judges in the Divisional Court have thought that there was a mis-direction.
The contention for the plaintiff was thus stated by Grove, J.(1): “The alleged misdirection in this case was in the learned judge, before whom the action was tried, stating to the jury that the onus of proof was upon the plaintiff of proving that the defendants did not take reasonable and proper care to inform themselves of the true state of the case in prosecuting the plaintiff, and that they did not honestly believe the case which they laid before the magistrates.” In other words, it was contended for the plaintiff, that Cave, J., was wrong in stating to the jury that it was incumbent upon the plaintiff to satisfy the jury that the defendants had not taken reasonable care to inform themselves of the true state of the case. After reading the judgment of Grove, J., I feel considerable doubt what was the real ground of the decision. I agree that if the question to be decided is whether there has been reasonable inquiry as to the truth of the case, and if the plaintiff gives evidence which, unless it be answered, ought to lead the jury to the conclusion that there has been a want of reasonable inquiry, and if the defendant gives no evidence at all, the jury ought to find the question in favour of the plaintiff. I further agree that if the defendant gives evidence of facts which he desires to prove, it lies upon him to satisfy the jury that the circumstances alleged in his evidence are correct. But then it is contended (I think fallaciously,) that if the plaintiff has given primâ facie evidence, which, unless it be answered, will entitle him to have the question decided in his favour, the burden of proof is shifted on to the defendant as to the decision of the question itself. This contention seems to be the real ground of the decision in the Queen’s Bench Division. I cannot assent to it. It seems to me that the propositions ought to be stated thus: the plaintiff may give primâ facie evidence which, unless it be answered either by contradictory evidence or by the evidence of additional facts, ought to lead the jury to find the question in his favour: the defendant may give evidence either by contradicting the plaintiff’s evidence or by proving other facts: the jury have to consider upon the evidence given upon both sides, whether they are satisfied in favour of the plaintiff with respect to the question which he calls upon them to answer; if they are, they must find for the plaintiff; but if upon consideration of the facts they come clearly to the opinion that the question ought to be answered against the plaintiff, they must find for the defendant. Then comes this difficulty – suppose that the jury, after considering the evidence, are left in real doubt as to which way they are to answer the question put to them on behalf of the plaintiff: in that case also the burden of proof lies upon the plaintiff, and if the defendant has been able by the additional facts which he has adduced to bring the minds of the whole jury to a real state of doubt, the plaintiff has failed to satisfy the burden of proof which lies upon him. Cave, J., told the jury that the burden of proof lay upon the plaintiff, and I think that the effect of his summing up as to this point may be stated as follows: “Take the evidence before you; if your minds are made up one way or the other, there will be no difficulty; but if after consideration you remain in doubt how the questions which I put to you ought to be answered, I tell you that the burden of proof lies upon the plaintiff, and if either the plaintiff’s evidence or the defendants’ evidence added to the plaintiff’s has really left you in doubt, the plaintiff has failed to satisfy the burden of proof which lies upon him.” It is said that the expression “burden of proof” is capable of improvement: I do not doubt that it may be improved, but whoever attempts to improve it before a jury, will be trying a dangerous experiment. It is a form of expression which has been used over and over again, it is a form of expression which is known to the class of persons from whom jurors are drawn, and which, explained as Cave, J., did explain it, is well understood by them; and although a more accurate expression might be found, there would be by extreme accuracy danger of puzzling inaccurate minds. In my opinion it is better to continue to use this expression. It is no mis-direction not to tell the jury everything which might have been told them: there is no mis-direction, unless the judge has told them something wrong, or unless what he has told them would make wrong that which he has left them to understand. Non-direction merely is not mis-direction, and those who allege mis-direction must shew that something wrong was said or that something was said which would make wrong that which was left to be understood. In the present case I can see nothing but what was accurate and proper to give as a direction to the jury.
(1) Ante, p. 81.
As to the appeal by the plaintiff from the judgment of Cave, J., it has been argued that even although the defendants took reasonable care to get at the truth of the case, nevertheless there was not reasonable and probable cause for instituting a prosecution of the plaintiff, and this question was wrongly decided by the judge. With regard to this point, I trust that nothing which I shall say, will be supposed to suggest anything derogatory of the plaintiff’s character. The case against him was tried before a jury who acquitted him of the charge of conspiracy, and said that they thought that there was no blemish upon his character. I desire to say nothing which can at all derogate from the acquittal of the plaintiff by the jury who tried him. But he is not satisfied to stand with his character absolutely and entirely cleared, he comes before a jury with this action which is of a peculiar nature. As I have already intimated, it is not an action which the plaintiff can support merely upon the ground that he was entirely innocent; he must shew that the prosecution was instituted without reasonable and probable cause and with malice. The judge had to consider whether the defendants had reasonable and probable cause if the jury should find that the defendants, in prosecuting the plaintiff, had taken reasonable care to inform themselves of the true state of the case, and that they honestly believed the case which they laid before the magistrates. There were the statements of certain persons, which if they were true shewed clearly a conspiracy. It has been urged that these statements were tainted evidence, because they came from accomplices; the answer is that if there was a conspiracy, it must be proved by persons who were behind the scenes. Further, there was the evidence of doctors of the highest skill, in whom the directors of the defendant company might well trust, that the case of McMann was a sham, and the wounds upon him were produced by improper means. I cannot doubt that the judge was right in holding upon these facts and upon the findings of the jury that there was ample, reasonable and probable cause for the defendants to institute the prosecution. The directors acted like reasonable men. It may be that it is improper in men belonging to the medical profession to act as detectives and to employ detectives on behalf of railway companies. I think it wrong, but it is equally wrong in a medical man, even although he has no fraudulent intention, to get up cases for damages against railway companies. I think conduct of that kind most unbecoming: the only duty of medical men is to endeavour to cure their patients of injuries and diseases. But however that may be, the directors did not rest contented with the investigations of Rayne and the detectives: they caused a solicitor to be employed, the statements of witnesses to be procured, and the opinion of counsel to be taken. It is impossible to say that the defendants’ directors did not take reasonable care, and that they had no reasonable or probable cause.
For these reasons I differ from the decision of the Queen’s Bench Division upon the question whether a new trial should be granted, and I think that the appeal from the order for a new trial must be allowed. I think that the appeal by the plaintiff from the judgment of Cave, J., must be dismissed.
I should be better pleased to leave the judgment of the Master of the Rolls without any addition of my own, and if I were to consult my own convenience I should do so, especially for this reason, that although it is not difficult to come to a true view of the law, this is a case in which the expression of the law becomes peculiarly difficult; but the case is important to the parties, and the judgment of the Queen’s Bench Division was contrary to ours, and the case has been well argued, and I think that it would not be right to shrink from the burden of stating my own view of the case and of pointing out the weak places in the argument addressed to us.
This action is for malicious prosecution, and in an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause; and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice. All those three propositions the plaintiff has to make out, and if any step is necessary to make out any one of those three propositions, the burden of making good that step rests upon the plaintiff. I think that the whole of the fallacy of the argument addressed to us, lies in a misconception of what the learned judge really did say at the trial, and in a misconception of the sense in which the term “burden of proof” was used by him. Whenever litigation exists, somebody must go on with it; the plaintiff is the first to begin, if he does nothing, he fails; if he makes a primâ facie case, and nothing is done to answer it, the defendant fails. The test, therefore, as to the burden of proof or onus of proof, whichever term is used, is simply this: to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case, for it is obvious that as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof shifts, and at which the tribunal will have to say that if the case stops there, it must be decided in a particular manner. The test being such as I have stated, it is not a burden that goes on forever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls over until again there is evidence which once more turns the scale. That being so, the question of onus of proof is only a rule for deciding on whom the obligation of going further, if he wishes to win, rests. It is not a rule to enable the jury to decide on the value of conflicting evidence.
So soon as a conflict of evidence arises, it ceases to be a question of onus of proof. There is another point which must be cleared in order to make plain what I am about to say. As causes are tried, the term “onus of proof” may be used in more ways than one. Sometimes when a cause is tried the jury is left to find generally for either the plaintiff or the defendant, and it is in such a case essential that the judge should tell the jury on whom the burden of making out the case rests, and when and at what period it shifts. Issues again may be left to the jury upon which they are to find generally for the plaintiff or the defendant, and they ought to be told on whom the burden of proof rests; and indeed it is to be observed that very often the burden of proof will be shifted within the scope of a particular issue by presumptions of law which have to be explained to the jury. But there is another way of conducting a trial at Nisi Prius, which is by asking certain definite questions of the jury. If there is a conflict of evidence as to these questions, it is unnecessary, except for the purpose of making plain what the judge is doing, to explain to the jury about onus of proof, unless there are presumptions of law, such as, for instance, the presumption of consideration for a bill of exchange, or a presumption of consideration for a deed. And if the jury is asked by the judge a plain question, as, for instance, whether they believe or disbelieve the principal witness called for the plaintiff, it is unnecessary to explain to them about the onus of proof, because the only answer which they have to give is Yes or No, or else they cannot tell what to say. If the jury cannot make up their minds upon a question of that kind, it is for the judge to say which party is entitled to the verdict. I do not forget that there are canons which are useful to a judge in commenting upon evidence and rules for determining the weight of conflicting evidence; but they are not the same as onus of proof. Now in an action for malicious prosecution the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that a judge can see no reasonable or probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that when a negative is to be made out the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion still rests upon the plaintiff. The terms “negative” and “affirmative” are after all relative and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the duty which is neglected. Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent, or that a particular thing is insufficient for a particular purpose, that is an averment which he is bound to prove positively. It has been said that an exception exists in those cases where the facts lie peculiarly within the knowledge of the opposite party. The counsel for the plaintiff have not gone the length of contending that in all those cases the onus shifts, and that the person within whose knowledge the truth peculiarly lies is bound to prove or disprove the matter in dispute. I think a proposition of that kind cannot be maintained, and that the exceptions supposed to be found amongst cases relating to the game laws may be explained on special grounds.
To come back to the question of the present trial, it is possible that the language of Cave, J., has been misunderstood; and we must look and see out of the ways in which the question might possibly be tried, which way he has selected, because as soon as it is seen which mode of trial he has selected a great advance is made towards seeing that the criticisms which have been made on his direction are unsound. A judge may leave the jury to find a general verdict, explaining to the jury what the disputed facts are, telling them that if they find the disputed facts in favour of one side or the other, his opinion as to reasonable and probable cause will differ accordingly, telling them what, in each alternative, his view will be, and enabling them to apply that statement with reference to the issue as to malice; that is a way which in a very simple kind of case may be adopted. But I think it necessary only to state as much as I have stated about it, to see that a very clear head and a very clear tongue will be required to conduct a complicated case to a general verdict in that way. Accordingly, judges have been in the habit of adopting a different course whenever there are circumstances of complication. A judge may accordingly do this; he may tell the jury what the issues or questions are, and at the same time inform them what will be the effect upon the verdict, which they will ultimately be asked to find, of the answers they give to the specific questions, leaving the jury both to answer the questions and then to find a verdict, after he has explained to them what result the answers to the questions will involve. That is the way in which Cave, J., really did try this case. There is a third way in which a judge may conduct the trial, by asking the jury specific questions, and not leaving it to them to find the verdict, but entering the judgment upon their findings himself. That is a third way, and that was not adopted in form by the learned judge, although it will be observed it differs only slightly in form from the second mode of procedure, which he, in fact, did adopt. Now, if the judge adopts the second method of procedure, it is obvious that he is putting specific questions to the jury with the intention, as soon as they have answered the specific questions, to request them to go still further, and to find a general verdict one way or the other on such answers. It is obvious that it is not required in such a case to explain to them the meaning of onus of proof exactly in the same way as if he left them generally to find a verdict. In answering the specific questions, where there is conflict of evidence they do not require to be told where the onus of proof lies, provided the alternative is always left to them to say, “we do not think the materials enable us to answer this or that question.” But still a judge trying the case would probably let the jury know, as intelligent persons, the result of what they were doing, and might easily explain to them so much of the law about onus of proof, as gave them an intelligent interest in their functions. I really do not think that Cave, J., did more than that.
When he came to address the jury, the whole of the case was before him. There were, in theory, two logical ways of treating it. The question whether there was want of reasonable and probable cause depended upon the materials which were in the possession of the prosecution at the time it was instituted, and also on the further point whether those materials were carefully collected and considered. Now there might be two views of the materials which were in the possession of the prosecution. It may be said that the materials were evidently untrustworthy, or that they were obviously trustworthy, according as the one view or the other is taken of the facts. The burden of shewing carefulness in the inquiry would be shifted according to the view of the facts adopted. If the materials were admittedly untrustworthy, that would be a strong reason for throwing on the defendants the burden of shewing that they, nevertheless, had been misled, after all their care, into relying upon worthless materials. If the materials were obviously trustworthy, they would be enough primâ facie to justify those who trusted to them. The view for the plaintiff is, as it seems to me, that as a matter of law Cave, J., ought to have assumed that the materials in the possession of the prosecutors at the time they instituted the prosecution were untrustworthy and suspicious, and that he ought to have directed the jury to go on and consider, as if it were an independent matter, whether the prosecution had so conducted themselves as to relieve themselves of this grave opprobrium of having acted upon worthless materials; in effect, that he ought to have left to them a specific issue whether the inquiry had been conducted reasonably and properly by the prosecution, – whether they had collected the information carefully. Now I think that would have been a mistake in law.
The trustworthiness of the materials – I do not mean the legal inference to be drawn from them, but the worth of them – was a question of fact, not a question of law, – a question of fact depending on the view the jury took about the evidence, and it seems to me that Cave, J., would have been wrong in dividing into two parts the questions of fact, assuming one half necessarily to be decided one way and telling the jury that the onus of proof shifted about the other. He put the two together, and asked the jury a question, I think, covering the whole of the controversy, whether the defendants took reasonable care to inform themselves of the true state of the case, not whether they took reasonable care to collect the materials in their possession, but whether they took reasonable care to inform themselves of the true state of the case. He then told the jury that they must bear in mind that it lay on the plaintiff to prove that the railway company did not take reasonable care to inform themselves of the true state of the facts. The meaning of that is, that if the jury were not satisfied whether the defendants did or did not take proper care – inasmuch as the plaintiff was bound to satisfy the jury that the defendants had not taken due care – the defendants would in the end be entitled to the verdict. That direction was quite correct. The judge did not direct the jury to keep their minds in a particular attitude of distrust towards the plaintiff’s testimony in considering a limited portion of the investigation, the burden of maintaining which the defendants took upon themselves; but he informed the jury what would be the true result of the whole case, namely, that the burden of proving a want of reasonable and probable cause would rest on the plaintiff. He did not say that they were to approach every part of the inquiry as to each isolated fact with minds biased in favour of the defendants. He left certain questions to the jury; but he did not direct them that in discussing amongst themselves the subordinate facts of the case they were to approach the inquiry in a spirit of hostility to the plaintiff’s evidence. The counsel for the plaintiff contend that the onus lay on the defendants for this reason. They say: the plaintiff had been shewn to be innocent, the circumstances under which he was called upon to attend his patient were obviously consistent with innocence, even if McMann was guilty of imposture, and, apart from any particular proposition, innocence, under these circumstances, will be evidence of want of reasonable and probable cause. That was the contention. The plaintiff’s counsel thus insisted upon drawing a line half down their own case. The whole case was made up of a quantity of facts, and if one group of facts was treated in the sense most favourable to the plaintiff, no doubt it would have established a strong case against the defendants which they ought to answer by proving, if they can, another group of facts. But the plaintiff’s counsel had no right to divide their case in that manner, and to assume that one inference is to be drawn from half their facts, which throws an additional burden upon the defendants with regard to the other half. That is the real vice in their argument. It is contended that the defendants ought to have known that the witnesses against the plaintiff were persons of bad character. But this is a matter which affects the weight of their evidence and not the onus of proof. It may be that it was a proper argument to be addressed to the jury, to ask them to find that, even if all these stories had been told to the defendants, still they were told by persons whom the defendants ought not to have accepted; that was a perfectly fair argument to address to the jury; but it was an argument on a matter of fact, and not on a matter of law, and the plaintiff’s counsel had no right to ask the learned judge to tell the jury to assume that a limited portion of the facts in evidence, as a matter of law, established a case against the defendants, which the defendants had to answer by setting up some special case of their own. To do that would be to attempt to make the onus of proof shift in the middle of a conflict of evidence, whereas, as I explained when I began my judgment, the onus of proof is not a matter which enables a jury to decide between conflicting witnesses; and when there is evidence on which reasonable men may act one way or the other, to ask the learned judge to lay down such a rule as to shift the onus of proof in the middle of the case, would be to ask him to misdirect the jury; but the learned judge, so far from misdirecting the jury by adopting that view, directed the jury quite rightly.
Something has been said about innocence being proof, primâ facie, of want of reasonable and probable cause. I do not think it is. When mere innocence wears that aspect, it is because the fact of innocence involves with it other circumstances which shew that there was the want of reasonable and probable cause; as, for example, when the prosecutor must know whether the story which he is telling against the man whom he is prosecuting, is false or true. In such a case, if the accused is innocent, it follows that the prosecutor must be telling a falsehood, and there must be want of reasonable and probable cause. Or if the circumstances proved are such that the prosecutor must know whether the accused is guilty or innocent, if he exercises reasonable care, it is only an identical proposition to infer that if the accused is innocent there must have been a want of reasonable and proper care. Except in cases of that kind, it never is true that mere innocence is proof of want of reasonable and probable cause. It must be innocence accompanied by such circumstances as raise the presumption that there was a want of reasonable and probable cause. The ground of our decision comes back to what was suggested. Who had to make good their point as to the proposition whether the defendants had taken reasonable and proper care to inform themselves of the true state of the case? The defendants were not bound to make good anything. It was the plaintiff’s duty to shew the absence of reasonable care; and it is, I think, because the Court below has been drawn, if I may use the expression, into thinking that what Cave, J., was really leaving to the jury was an issue upon a subordinate fact, that I respectfully differ from their view. With regard to the plaintiff’s appeal from the judgment, I agree with what the Master of the Rolls has said.
I can in a few words express my opinion, which agrees with that of my learned brethren. The proposition which most commends itself to me on the part of the plaintiff is, that where on the evidence given one party must win, then the burden of proving any new or independent facts is on the other party. It has been said that such was the condition of the case in this instance, and that the inquiry directed by the learned judge with regard to the care taken by the defendants was an inquiry with regard to a new fact without which the defendants could not succeed. That appears to me to be an entire misapprehension of the state of the case at the time when the learned judge was summing up the case. On the evidence given by the plaintiff alone, it appears to me far from clear that he could have won. On the contrary, it appears to me that on the whole of the evidence given by the plaintiff, as matters then stood, he must have failed, and therefore the burden of proving the new facts must rest upon the person who required them; that was on the plaintiff. Not even the respect which I feel for the judgment of the Court below can render it necessary in my judgment, that I should say any more in this case than I have already said, except to add that I entirely agree with the judgments which have been delivered by my learned brethren. Everything which I intended to say has been said by the one or the other of them.
Appeal from the judgment of the Queen’s Bench Division allowed, and appeal from the judgment of Cave, J., dismissed.