TORT 114 Malice in Law and Malice in Fact — Law of Torts Notes for Judiciary

Malice in Law and Malice in Fact: One Word Carrying Two Separate Meanings

Few words in the law of torts do as much harm as this one. Malice in law means nothing more than a wrongful act done intentionally, without just cause or excuse. It imports no ill will whatever, and a defendant of the kindest disposition may be malicious in law. Malice in fact means what the word means in ordinary speech: spite, an improper motive, a desire to injure. The two senses appear in the same subject, sometimes in the same action, and nothing but the context tells which is being used.

1. The Two Senses

	Malice in law	Malice in fact
Also called	Implied malice, legal malice, malice in its legal sense	Express malice, actual malice, malice in fact and in truth
What it means	A wrongful act done intentionally, without just cause or excuse	An improper or indirect motive: spite, ill will, a desire to injure
Ill will	Not required at all	The whole content of it
How it is established	Presumed from the act, once the act is shown to be wrongful and intentional	Proved as a fact, by evidence of the defendant's state of mind
On whom the burden lies	Effectively on the defendant, to show just cause or excuse	On the party alleging it
What it does	Supplies the wrongful intention the tort requires	Establishes an ingredient, or destroys a defence, or raises the damages
Where it appears	The presumed malice in defamation; abuse of process; the older statutory formulae	Malicious prosecution, malicious falsehood, conspiracy, nuisance, and the defeat of privilege

2. Malice in Law

The classical statement is that of Bayley J. in Bromage v. Prosser, (1825) 4 B and C 247: malice in common acceptation means ill will against a person, but in its legal sense it means a wrongful act done intentionally, without just cause or excuse.
Shearer v. Shields, [1914] AC 808 puts it in the form usually quoted: a person who wilfully does a wrongful act, without just cause or excuse, is said to act maliciously in law, and this is so whatever his feelings towards the person injured.
It is a conclusion and not a finding of fact. Once the act is shown to be wrongful and intentional, malice in law follows as a matter of legal characterisation, and no evidence about the defendant's feelings is relevant to it.
Its practical function is to close off a defence. A defendant cannot answer a deliberate wrongful act by saying he meant no harm, because the law attaches the characterisation to what he did and not to what he felt.
In public law the same expression appears as legal malafides, meaning an act done without lawful authority or for a purpose outside the statute, as distinct from malice in fact which requires a personal animus against the affected person.

3. Malice in Fact

It is a question of fact to be proved like any other, ordinarily by circumstantial evidence: prior hostility, the terms in which the defendant spoke, the absence of any enquiry before acting, an unreasonable persistence, or a purpose collateral to the ostensible one.
It is an ingredient of a small group of torts. Malicious prosecution, where the plaintiff must prove malice as well as the absence of reasonable and probable cause; malicious falsehood and slander of title; and conspiracy where the combination employed lawful means, in which case liability depends on the predominant purpose being to injure.
It destroys two defences in defamation, qualified privilege and fair comment, by showing that the occasion or the opinion was used for a purpose other than that for which the protection exists: TORT 070.
It is relevant to reasonableness in nuisance, where an act done on one's own land purely to annoy a neighbour is not a reasonable user: Christie v. Davey and Hollywood Silver Fox Farm v. Emmett.
It raises the damages without affecting the liability, being an aggravating circumstance and, within the Rookes v. Barnard categories, capable of supporting an exemplary award.
It cannot create a cause of action where none exists. Mayor of Bradford v. Pickles is conclusive: an act which is lawful does not become unlawful by reason of the motive behind it: TORT 113.

4. Why Defamation Is Where the Confusion Arises

The word appears in both senses within a single action, and a reader who does not notice the shift will find the authorities contradicting one another.
Malice in law is presumed once a defamatory statement referring to the plaintiff has been published. It supplies the wrongful intention the tort requires, and the defendant does not escape by proving that he bore the plaintiff no ill will, that he believed the statement to be true, or that he did not know the words referred to him.
Malice in fact arises only at a later stage, and only if the defendant pleads qualified privilege or fair comment. If he does, the plaintiff may defeat the defence by proving actual malice, meaning that the defendant used the privileged occasion for an improper purpose or published the comment otherwise than as his honest opinion.
The two are therefore independent. A defendant may be malicious in law and entirely free of malice in fact, which is the ordinary case of an honest but mistaken publication. And a publication may be malicious in law and yet protected, because the occasion was privileged and no actual malice was proved.
Absolute privilege is unaffected by either. Where the privilege is absolute, parliamentary and judicial proceedings among them, malice in fact is irrelevant and the protection holds however malicious the speaker.

The stage in a defamation action	Which malice is in issue
The plaintiff establishes publication of defamatory matter referring to him	Malice in LAW, and it is presumed. No evidence of the defendant's feelings is needed or admitted on this question
The defendant pleads truth	Neither. Truth is a complete defence and malice does not affect it
The defendant pleads absolute privilege	Neither. The protection is absolute and malice cannot defeat it
The defendant pleads qualified privilege	Malice in FACT, which the plaintiff must prove to destroy the defence
The defendant pleads fair comment	Malice in FACT, which shows the comment was not an honest expression of opinion
The court assesses damages	Malice in FACT, as an aggravating circumstance

5. The Consequence for Pleading and Proof

Malice must be specifically pleaded wherever it is an ingredient or is relied on to defeat a privilege, and particulars must be given of the facts from which it is to be inferred. A bare allegation is liable to be struck out.
It is never pleaded where it is malice in law, because nothing is being alleged as a fact: the characterisation follows from the wrongful act.
Evidence of ill will is inadmissible on the question of malice in law and central to the question of malice in fact, so the same evidence may be excluded at one stage of the action and received at another.
Where the pleader is uncertain which sense the authority he relies on is using, the test is to ask what the malice is being required to do. If it is supplying the wrongfulness of an intentional act, it is malice in law. If it is being proved to establish an element, defeat a defence or raise the damages, it is malice in fact.

⚠ Why the law kept a single word for two ideas, and how to read around it

The two senses have a common ancestor. In the older law the courts spoke of an act done "maliciously" to mean an act done wrongfully and on purpose, and the word carried no suggestion about feelings; the sense of spite was a later accretion from ordinary speech. When pleading required a formal allegation of malice in a great many actions, the allegation became a form of words rather than a statement of fact, and the courts developed the doctrine of presumed malice to explain why nothing needed to be proved. The result is a vocabulary in which the same word means an inference in one paragraph and an allegation of fact in the next. Modern judgments try to avoid it, preferring "wrongful and intentional" for the first sense and "improper motive" or "actual malice" for the second, but the older authorities cannot be rewritten and remain the foundations of the subject. The only reliable way to read them is to ignore the word itself and ask, of every passage in which it appears, whether the court is describing the legal quality of what the defendant did, or making a finding about why he did it. The first is malice in law; the second is malice in fact; and no case uses both senses in the same sentence.

6. The Position Stated Shortly

1. Malice in law means a wrongful act done intentionally, without just cause or excuse, and imports no ill will at all.

2. Malice in fact means an improper or indirect motive: spite, ill will, or a desire to injure.

3. Bromage v. Prosser and Shearer v. Shields are the classical statements of the first sense.

4. Malice in law is presumed from the wrongful intentional act and is a legal characterisation, not a finding of fact.

5. Malice in fact is proved like any other fact, ordinarily by circumstantial evidence of hostility, purpose and conduct.

6. Malice in fact is an ingredient of malicious prosecution, malicious falsehood and conspiracy by lawful means.

7. It destroys qualified privilege and fair comment in defamation, is relevant to reasonableness in nuisance, and may raise the damages.

8. It cannot create a cause of action where no right has been violated, which is the rule in Mayor of Bradford v. Pickles.

9. Defamation uses both senses in one action: malice in law is presumed on publication, and malice in fact arises only if a qualified defence is pleaded.

10. A defendant may therefore be malicious in law and free of malice in fact, and a publication may be malicious in law and yet protected by privilege.