In <span class="news-text_italic-underline">Commercial Bank of Dubai PSC and others v Al Sari and others [2025] EWHC 400 (Comm)</span>, the High Court addressed the applicable law for claims related to the tort of malicious prosecution in civil proceedings, ruling that the law of the place where the proceedings took place should govern the claim. This decision marks a significant ruling on the issue, as it appears to be the first judgment on the topic.
The tort of malicious prosecution was recognised in <span class="news-text_italic-underline">Willers v Joyce [2016] UKSC 43</span> and involves the claimant suffering harm due to a civil claim that was brought maliciously and without reasonable cause and which was not a bona fide use of the court process.
Under the <span class="news-text_italic-underline">Rome II Regulation</span>, which governs the law applicable to non-contractual obligations in civil and commercial matters, the applicable law for a tort is determined by the country where the damage occurred, as set out in Article 4(1). This rule applies regardless of where the event causing the damage took place or where its indirect consequences were felt.
In the case at hand, the claimants sought damages for losses, including legal fees and losses related to the delayed sale or use of property in England, claiming that they were harmed by the malicious prosecution of civil proceedings against them in the Dubai International Financial Centre (“<span class="news-text_medium">DIFC</span>”). While the DIFC is located in the UAE, it operates as a separate jurisdiction and is treated as a distinct country under the <span class="news-text_italic-underline">Rome II Regulation</span>.
The claimants argued that under Article 4(1), the applicable law should either be UAE or English law because the damage was suffered in England, where the legal fees were paid and the properties were located. However, the judge found that the damage occurred where the proceedings were instituted - the DIFC. He held that the applicable law for this tort should therefore be DIFC law, emphasising that the primary concern of the tort was to prevent harassment by bad faith litigation. The judge also noted that reputational damage alone was sufficient to constitute damage and that legal costs incurred to counter the malicious proceedings were considered mitigation rather than direct loss.
This ruling highlights the significance of the location of the proceedings in determining the applicable law for claims of malicious prosecution in civil cases.
