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Beyond rule-based legal expert systems : using frames and case-based reasoning to analyze the tort of.. 1990

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B E Y O N D R U L E - B A S E D LEGAL E X P E R T SYSTEMS: U S I N G FRAMES AND CASE-BASED REASONING T O ANALYZE THE TORT O f M 4 L K J 0 U S PROSECUTION By Andrzej Kowalski B.A., Monash University, 1984 LL.B., Monash University, 1986 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA December 1990 ® Andrzej Kowalski 1989,1990 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. (Signature) Department of The - University of British Columbia Vancouver, Canada Date DE-6 (2/88) ABSTRACT Most legal expert systems to date have been purely rule-based. Case-based reasoning is a methodology for building legal expert systems whereby profiles of cases contained in a database, rather than specific legal rales, direct the outcomes of the system. Frame-based knowledge representation in legal expert systems involves the use of frames to represent legal knowledge. Case-based reasoning and frame- based knowledge representation offer significant advantages over purely rule-based legal expert systems in case-based law. These advantages are realizable by using the deep structure approach to knowledge representation. This involves searching beneath law at the doctrinal level for underlying fact patterns and structures which explain decisions in cases. This is demonstrated by the Malicious Prosecution Consultant, a legal expert system which operates in the domain of the tort of malicious prosecution. The Malicious Prosecution Consultant confirms the results of earlier research at The University of British Columbia, Faculty of Law wiat it is possible to build legal expert systems in unstructured areas of case-based law with relatively cheap commercially available expert system shells by using the deep structure approach to knowledge representation. TABLE OF CONTENTS ABSTRACT .. ii TABLE OF FIGURES v LIST OF TABLES ...j vi ACKNOWLEDGEMENTS .vii CHAPTER I THE MALICIOUS PROSECUTION CONSULTANT: A LEGAL EXPERT SYSTEM I. INTRODUCTION.. . II. THE STRUCTURE OF THE MPC A. Software......... B. Knowledgebase... C Dstsb&scs in. THE: IISTORY OF'T '̂MPC"!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!:!!!!!!!!!! IV. DEEI STRUCTURE APPROACH TO KNOWLEDGE REPF SSENTATION V. T H E OPERATION OF THE MPC VI. THE F t TURE DEVELOPMENT OF THE MPC CHAPTER II USING FRAMES TO BUILD LEGAL EXPERT SYSTEMS ....15 I. INTRODUCTION.... .................15 II. THE PRESUPPOSITIONS O F FRAME-BASED KNOWLEDGE REPRESENTATION......... 16 III. FRAME-BASED KNOWLEDGE REPRESENTATION..................18 A. Inheritance 20 B. Methods: Integrating Frames, Rules and Computing Procedures........... .23 C. Integrating Frames and Databases..... .....29 IV. CONCLUSIONS.......... .32 CHAPTER III USING CASE-BASED REASONING TO BUILD LEGAL EXPERT SYSTEMS.. .......... .... .............34 I. INTRODUCTION.. ........................34 II. CBR DESCRIBED 35 III. THE CBR PROCESSES OF THE MPC 37 A. From Rules to CBR.....................;. .................................37 B. Terminal Nodes................... .....39 C. The Structure of the Database and Case Representation Frames .........39 D. Using Case Law to Direct the MPC's Conclusions..'......... ....44 E. The Weighing and Ranking of Cases.......... ...47 IV. EVALUATING THE CBR METHODOLOGIES OF THE MPC ...51 V. CONCLUSIONS 56 •iii ..1 ..1 ..4 ..4 ..6 • 4 ..9 Jul 13 C H A P T E R I V REPRESENTING THE TORT OF MALICIOUS PROSECUTION COMPUTATIONALLY 58 I. INTRODUCTION 58 H. THE TORT OF MALICIOUS PROSECUTION ......59 HI. INITIATION OF PROCEEDINGS ..60 IV. TERMINATION OF PROCEEDINGS... 65 V. D A M A G E S 68 VI. LACKOFREASONABLE AND PROBABLE CAUSE 74 W . MALICE 78 VIII. THE POLICIES AND RULES OF THE DEEP STRUCTURE OF THE TORT OF MALICIOUS PROSECUTION 81 VIII. CONCLUSIONS 82 CHAPXERV TESTING THE MALICIOUS PROSECUTION CONSULTANT 84 I. METHOD.. .84 II. RESULTS... 85 III. EVALUATION ......... BIBLIOGRAPHY ......94 APPENDIX I The framebase of the MPC 96 APPENDIX II The rulebase of the MPC ....100 APPENDIX III The factbase of the MPC....... ...136 APPENDIX IV The listbase of the MPC 143 APPENDIX V The structure of the dBASE IV database ............146 A sample record from ibe dBASE IV database .147 APPENDIX VI . . . The schema frame of the Cases database 148 A sample record frame of the Cases database > ....................149 APPENDIX VII The schema frame of the Matches database ........ISO A sample record frame of the Matches database .. .............150 APPENDIX VIII Tlie questions asked of the user and corresponding frame and slot names ,151 APPENDIX IX Calculating the point scores (weight) of cases ..................................159 An example of calculating the weight of a case .......................159 TABLE OF FIGURES FIGURE 1 The structure of the Malicious Prosecution Consultant....... 3 FIGURE 2 The logic flowchart and framebase of the Malicious Prosecution Consultant 5 FIGURE 3 A framebase .......19 FIGURE 4 Inheritance between the Cases and User Profile frames ...23 FIGURE 5 Methods attached to a slot 25 FIGURE 6 Integrating frames and databases..... 31 FIGURE 7 The Horizontal and Vertical Search Methods .................45 LIST OF TABLES The meaning of the slot names used in the MPC ACKNOWLEDGEMENTS There are many people to whom I wish to extend my gratitude. Without the faith and support of my parents Tadeusz Kowalski and Dorothy Kowalski this project would not have eventuated. Peter Druce and Bill Hazlett at Tolhurst, Druce & Emmerson in Melbourne encouraged me to pursue my interests and have invited me to return to practice with them on its completion. Professor J.C. Smith, my principal supervisor, continually motivated and supported my work; he always made time to listen and discuss, and is a truly inspirational person to work with. Professor Marilyn MacCrimmon, my second supervisor and co-ordinator of the Graduate Studies Program, was understanding of the sometimes unorthodox methodologies of graduate work in law and A.I. Cal Deedman, my fellow researcher in law and A.I., my wife Dr. Dorota Gertig and Dr. Laura McDougall were invaluable in their discussion, critiques and proof-reading. Cal Deedman also devoted a great deal of time to testing the Malicious Prosecution Consultant and helping me revise its structure after the test results. Finally, and most importantly, without the encouragement, foresight and love of my wife, this work would never have been commenced in the first place. ,1 CHAPTER I THE MALICIOUS PROSECUTIONCQNSULTANT: A LEGAL EXPERT SYSTEM I. INTRODUCTION This thesis is about using: (1) the deep structure approach to knowledge representation; (2) frames; and (3) case-based reasoning ("CBR") to build legal expert systems in case-based law. These three methodologies are incorporated in the Malicious Prosecution Consultant,1 ("MPC") a legal expert system operating in the domain of the tort of malicious prosecution.2 The MPC demonstrates that, by using the deep structure approach to knowledge representation, a frame-based CBR system may be built (with a relatively inexpensive commercially available expert system shell) which contains no specific legal rules but where the conclusions and advice of the system are dynamically driven by profiles of cases contained in a database. Frames (as a method of knowledge representation) and CBR (as a method of case referencing and retrieval) 1 Copyright® 1983,JUJ9Qby Andrzcj Kowalski. All rights reserved. 2 The MPC is designed as a tool for lawyers, not lay people. The user should be legally qualified, but need not have any knowledge about the tort of malicious prosecution. n n n j ] EgpE wmrnsimMmmmm u uu offer significant advantages over purely rule-based systems, but they must themselves be founded in more fundamental methods of representing legal knowledge which, in the case of the MPC, is the deep structure approach. This Chapter presents an overview of the MPC and, in general terms, discusses: the history of the MPC; the structure of the MPC; the deep structure approach to knowledge representation; the operation and features of the MPC; and the future development of the MPC. II. THE STRUCTURE OF THE MPC (1) (2) (3) W (5) The structure of the MPC is shown in Figure 1. BirMKWIWWWTl FIGURE 1 The structure of the Malicious Prosecution Consultant Knowledgebase Hyper t ex t Da tabase Listbase Matches Cases Da tabase / A. Software The knowledgebase of the MPC was built with a shell called Intelligence/Compiler ("I/C").3 ?he three databases of the MPC - Matches, Cases and Hypertext - are I/C format databases. The Matches and Cases Databases were originally one database, built with dBASE IV,4 and subsequently converted into two separate I /Cfe rmat databases? B. Knowledgebase There are four maih components of the MPC's knowledgebase: (1) the framebase, as shown in Figure 2 and listed in Appendix I, which contains the frames of the domain. Frames are the primary knowledge representation structure of the MPC. The frames embody my representation of the deep structure of the tort of malicious prosecution and control the computational processes of the MPC. A product of IntelligenceWare, Inc., 9800 s. Sepulveda Blvd., Los Angeles, CA (about $590 U.SD). I/C operates on IBM PC's or compatibles The stand-alone version of the MPC occupies about 2.5 megabytes of disk space, including cases. It runs on a 286 or 386 IBM VC (or compatible) with a hard disk drive, 640K RAM and at least 1 megaV--s of extend: '< memory. • • • . • •.. • .:-. A product of Ashton-Tate Corporation. See, infra, note 38. Figure 2 THE LOGIC FLOWCHART AND FRAMEBASE OF THE MALICIOUS PROSECUT ON CONSULTANT ,6 (2) the rulebase, as listed in Appendix 11, which contains the rules of the domain. In the MPC, these rules control procedural matters such as asking questions of the user and accessing its Databases. The MPC, being a CBR system, contains no specific legal rules about the tort of malicious prosecution. It draws its conclusions and advises solely on the basis of the case law contained in its Databases. (3) the factbase, as listed in Appendix III, which contains the facts of the domain. The facts in the MPC's knowledgebase arc mainly concerned with displaying messages to the user, the assigning of precedential weight to cases and the subsequeni weighing of cases. , (4) The listbase, as listed in Appendix IV, which contains the lists of the knowledgebase. A list is a knowledge storage structure which contains a "collection of ordered entries",6 e.g. permitted answers to a question, a line of cases, messages to be displayed to the user, and so on. C. Databases The MPC lias three databases. These are: (1) the Cases Database, which currently contains representations (or profiles) of 144 cases from Canada, England, Australia and New Zealand. A profile of a 6 Intelligence/Compiler version 3.0 User's Manual, p. 181. An I/C list called "MALICE passed list" might contain the following members, cach surrounded by quotation marks and delimited by commas: ["Carpenter v MacDonald (1979) 21 O.R. (2d) 165","Clements v Ohrly (1848) 2 CAR. & K. 685; 175 E.R. 287","I cibo v D. Buckman Ltd. [1952] 2 All E.R. 1057"] case contains matters such as its descriptive details, factual attributes and judicial findings. Some cases have multiple profiles, representing a range of factual attributes.7 This Database is the source of legal knowledge used in the CBR processes of the MPC. (2) the Matches Database, which is basically a subset of the Cases Database but with an additional slot called MATCHES. It contains the formal descriptive details of the cases in the Cases Database, but contains only one representation of each case. Its primary purpose is to record the number of fact matches between the user's fact situation and the cases in the Cases Database. (3) the Hypertext Database, which contains the text of the cases in the Cases Database. Some cases are in full text, some were briefed by student researchers and others I briefed myself.8 Hypertext is an important feature of the MPC. The name of each case in the Cases Database is defined as a "hyperterm" in the Hypertext Database. Whenever the text of a case contains a hyperterm, i.e. the name of a case in the Cases Database, the hyperterm is highlighted. If the user clicks with a mouse on the highlighted hyperterm, the hypertext associated with the . hyperterm, i.e. the case, is displayed. Any hyperterms within this text are highlighted and their associated hypertext may be similarly displayed. Thus, given the advent of technology like CD ROM, it is possible for a lawyer using a hypertext database to move speedily between case law, legislation and secondary reference materials. Hypertext overcomes the linear boundaries of traditional legal research and referencing. 7 This will be discussed in Chapter III. . 8 Many cases were retrieved from Quicklaw and stored in the MPC's Hypertext Database with the kind permission of QL Systems Limited. ,8 III. THE HISTORY OF THE MPC Original work on an expert system in malicious prosecution was undertaken in 1988 by students at The University of British Columbia, Faculty of Law as part of a course in Legal Reasoning and Artificial Intelligence. Some of the students did further work on the system in 1989 as Directed Research. The students used a rule- based shell called Ml.9 One of my original goals was to build a frame-based CBR system in an area of case-based law. Since the students had already collected case law on malicious prosecution, I decided to use these cases as the basis of my own analysis of malicious prosecution. I started programming in December, 1989 and built a rule-based system which analysed the initiation and termination of proceedings elements. I then implemented frames as the medium of knowledge representation, thereby creating a frame-based rule-based system. Next, I pruned the rulebase of specific legal rules and added CBR routines, thereby creating a frame-based CBR system. By September, 1990, I had completed my analysis of the remaining elements of malicious prosecution within this frame-based CBR context. Throughout these stages, cases were continually added to the Databases. A substantial amount of my time was spent learning I /C and developing the concepts discussed in Chapters II and III. Having now achieved a measure of proficiency in these areas, I estimate that my time to build another expert system would be substantially reduced, possibly by 50% or more. 9 A product of Teknowledge Inc., which is no longer marketed. , " - 'r- Another of my goals was to act as both the domain expert and the knowledge engineer. Previous legal expert systems proj ects involved a domain expert working with a knowledge engineer. The knowledge engineer debriefs the expert and builds the system under the supervision of the expert.10 The difficulties associated with this approach have been commented on by those involved in earlier projects.11 In order to assume both roles, I had to acquire a level of expertise in the tort of malicious prosecution and then capture my knowledge in the MPC. Whilst having no specific data, it is my belief that the merging of the roles of expert and knowledge engineer realizes substantial savings of time for expert system projects. As expert system shells proliferate and become more accessible to, and usable by, lawyers and others without significant computer programming experience, I predict that more lawyers will attempt to build their own expert systems with less reliance on programmers. IV. DEEP STR UCTUREAPPROACH TO KNOWLEDGE REPRESENTA TION . This thesis is not about the jurisprudence of legal expert systems, for this has been the subject of previous writings. My work concerns the development of new methodologies for the representation of legal knowledge at a computational level. However, I recognize, and believe it to be inescapable, that building legal expert 10 e.g. 'The Nervous Shock Advisor' by Professor J.C. Smith and Cal Deedman, The University of British Columbia, Faculty of Law; 'The Hearsay Rule Advisor' by Professor M.T. MacCrimmon and Susan Blackman, The University of British Columbia, Faculty of Law; Susskind, Dr. Richard E. & Capper, Professor Phillip, Latent Damage Law - The Expert System. • 11 Blackman, Susan J., The Hearsay Rule Advisor, LL.M. Thesis, University of British Columbia, Faculty of Law, 1988. n n n n > n n h n,r ' " u u u u 0 u n L ,10 systems is not just an exercise in computer programming, but requires solid jurisprudential and philosophical foundations. On this point, Susskind states: "all expert systems must embody a theory of structure and individuation of laws, a theory of legal norms, a theory of legal science, a theory of legal systems, as well as elements of a semantic theory, a sociology and a psychology of law (theories that themselves must rest on more basic philosophical foundations)."12 The fundamental method of knowledge representation on which the MPC is founded is the deep structure approach developed by Professor J.C. Smith and Cal Deedman during previous legal expert system research at The University of British Columbia, Faculty of Law.13 I offer only a brief outline of their theories, and suggest that the reader should go to the references for a complete explanation. Legal principles are often expressed in contradictory pairs e.g. a lease versus a mere licence. This is a function of the adversarial system. A judge decides a hard case by preferring one formulation over another. Thus the contradictory language of the principles becomes embedd?! in the law, thereby contributing to the criticism of law as indeterminate. Legal expert systems which operate at this doctrinal level e.g. by asking questions like "Was there reasonable and probable cause for the prosecution?", are of little practical value because they require the user to draw a legal conclusion. Alternative means of analyzing law and knowledge representation are required. Susskind, Richard , E E x p e r t Systems in Law: A Jurisprudential Approach to Artificial Intelligence and Legal Reasoning, (1986) 49 Modern Law Review 168. Smith J.C., & Deedman, C., The Application of Expert Systems Technology to Case-Based Reasoning, Proceedings of 1st International Conference on Artificial Intelligence and Law, (Boston) A.C.M. Press, New York, 1987, p. 84; Deedman, C., Building Ride-Based Expert Systems in Case-Based Law, LL.M. Thesis, University of British Columbia, Faculty of Law, 1987. I am indebted to them for providing such a rich jurisprudential foundation on which to build the MPC. One such methodology is to search for deep structures or fact patterns underlying legal doctrine which account for the decisions in the cases. This theory postulates that judges and lawyers use deep structure fact patterns underlying doctrinal formulations of law to decide cases and analyze problems. Whether they use the deep structure approach at a subconscious level, having unconsciously internalized it in the same way that a young child learns to speak her native tongue without knowing formal rules of grammar, or in a more overt goal-oriented manner where solving a client's problem or arriving at a correct legal decision are the primary concerns, is open to discussion. However, the fact remains that the deep structure approach successfully explains and accounts for legal decisions in areas of case-based law generally considered to be unstructured and indeterminate.14 The deep structure approach, by focusing on factual attributes, allows law to he analyzed and represented in 'concrete' terms which a computer is capable of processing. Facts become the unifying link between case law, the knowledge base of an expert system, database schemata (or case profiles) and the user's fact situation. Thus legal expert systems may be developed which avoid the difficulties inherent in dealing with law at a doctrinal level. If it is possible to build legal expert systems in indeterminate areas of case based law, it follows that they should be able to be built in virtually any legal domain. The deep structure underlying the tort of malicious prosecution is explained in Chapter IV. V. 14, THE OPERATION OF THE MPC 'The Nervous Shock Advisor', supra, 10. ,12 The MPC is a menu-driven expert system. Any case which is referred to during a consultation may be 'clicked' on by the user in order to display the text of the case, which is stored in the Hypertext Database. At the top level menu, the user may: (1) Start a full consultation in order to establish whether the user's fact situation results in a cause of action in malicious prosecution. A series of questions is then asked of the user in order to elicit the user's fact situation. After each question, the MPC compares the user's answer to the Cases Database and, i f - the question is at a terminal node level, engages in CBR. At any stage the user may ask why a particular question is being asked and the MPC will display a hypertext screen with an explanation and supporting case authority. If, during its CBR processes, the MPC finds authority which matches the user's fact situation and which does not support an action in malicious - prosecution, the consultation stops. Hie user is given reasons why an action in malicious prosecution is not possible, together with the supporting authority... . If conflicting lines of authority are rev .Jed, the MPC alerts the user to the existence of the conflict. It explains the essence of the conflict, displays the conflicting lines and suggests which line of authority should be preferred. The consultation continues unless the MPC prefers the Defendant's line of authority, which causes the consultation to stop. At the end of the consultation, assuming it has not aborted because of adverse authority, the MPC states that the requirements of a cause of action in malicious prosecution have been satisfied. The user may then review the consultation on a step-by-step basis. The issues and cases relevant to each aspect of the user's fact situation are displayed, including any conflicting authorities. Tb Start a consultation on any one of the five elements of malicious prosecution. The consultation proceeds as per a full consultation, but questions are restricted to the selected element. Examine the cases in the Hypertext Database. A hypertext screen displays the name and citation of every case in the Database, allowing the user to view the text of cases by clicking on the case names. Change the jurisdiction of the system. This affects the process gf the weighing of cases and lines of authority. The user may select from the Canadian provinces or territories, Australian states or territories, England and New Zealand. THE FUTURE DEVELOPMENT OF THE MPC Plans for the future development of the MPC include: incorporating the related tort of abuse of process into the system, moving beyond a doctrinal analysis of the requirement of "necessarily and naturally defamatory" where damage to reputation is claimed. This has not been done to date because it probably entails a venture into the law of defamation. continual updating of the Databases. CHAPTER n USING FRAMES TO BUILD LEGAL EXPERT SYSTEMS I. INTRODUCTION T h i s C h a p t e r d i s c u s s e s t h e u s e o f frames in the construction of legal expert s y s t e m s . U s i n g frames t o r e p r e s e n t k n o w l e d g e and to build expert systems is a type o f O b j e c t O r i e n t e d P r o g r a m m i n g ( O O P , o r OOPS for OOP systems). OOP "is a t o o l f o r m a n a g i n g s o f t w a r e c o m p l e x i t y " , w h i c h i s a c h i e v e d by "fusing code and data t o g e t h e r i n t o a h i e r a r c h y c f s t r u c t u r e s c a l l e d o b j e c t s . " 1 5 Except for some d i f f e r e n c e s i n n o m e n c l a t u r e , OOP a n d f r a m e - b a s e d programming are very similar. T h i s work f o c u s e s o n f r a m e s , b u t t h e m a t t e r s d i s c u s s e d are, for the m o s t part, e q u a l l y a p p l i c a b l e t o OOP a n d o b j e c t s , To date, most, if not all, legal expert systems have been purely rule-based systems. Their logic flow and processes are governed by a collection of rules, often cr ied, a 'rulcbasc'. In these systems, the rulebase is the only knowledge representation structure which is implemented at a computational level.16 A perennial problem with rulebases is trying to follow the logic flow, whether for debugging, modification, expansion or any other operation which might need to be performed on the system. Altering a rule buried in the middle of a rulebase may 15 OOP in the Real World: A White Paper from Borland International, P.C. A.I., September/October 1989, p. 37. Underlining in original. 16 Most knowledge engineers would have a schematic representation of an expert system's domain, but this does not form part of the knowledgebase. 16 s o m e t i m e s h a v e u n f o r e s e e n a n d d i a b o S c a l consequences for the rest of the r u l e b a s e . T h i s C h a p t e r e x p l a i n s h o w f r a m e s overcome these and other difficulties i n h e r e n t i n p u r e r u l e - b a s e d systems. In particular, this Chapter demonstrates how f r a m e s : ( 1 ) i m p o s e a n o r d e r e d s t r u c t u r e o v e r a r u l e b a s e ; ( 2 ) u s u r p t h e r o l e of r u l e s i n c o n t r o l l i n g t h e p r o c e s s e s <£ a n expert system; (3) m o d u l a r i z e a r u l e b a s e , t h e r e b y improving its conceptual clarity; (4) a l l o w t h e l o g i c H o w of an expert system to be readily traced at a c o m p u t a t i o n a l l e v e l ; (5) e n a b l e e x p e r t s y s t e m s to be more easily modified and enhanced; (6) c o n s e r v e c o m p u t e r resources by avoiding unnecessary duplication of k n o w l e d g e a n d c o d e ; a n d ( 7 ) i n t e g r a t e d a t a b a s e s with knowledgebases. II. THE PRESUPPOSITIONS OF FRAME-BASED KNOWLEDGE REPRESENTATION The concept of frame-based knowledge representation was originally developed by Minsky.17 The basic idea underlying frames is the packaging of similar or relater knowledge in a hierarchical structure. Research has shown that people categorize knowledge. If a list of items [chair, nose, table, dog, eyes, hair, cupboard] is presented to a person, she will probably recall them by their categories i.e. f u r n i t u r e , a n i m a l s a n d h u m a n f e a t u r e s . 1 8 R e p r e s e n t i n g k n o w l e d g e i n f r a m e s p a r a l l e l s t h e o r i e s a b o u t t h e way the human mind stores and retrieves knowledge. T h e r e a r e s i m i l a r i t i e s in this regard between frames and th« concept of s c r i p t s d e v e l o p e d b y Schank and Abelson.19 A script describes a particular, often s t a n d a r d , e p i s o d e e.g. going to a restaurant.20 The mention of the restaurant script c o n j u r e s up i m a g e s c f appropriate props like tables, chairs, waiters and so on. It c r e a t e s c e r t a i n expectations such as hunger, service and paying for food. Indeed, a w h o l e r a n g e of m e n t a l images is conveyed by this relatively simple script. The i m p o r t a n t e l e m e n t s c f a s c r i p t a r e : (1) Tnc constrained context in which the script is appropriate. (2) T h e r o l e t o b e played by each participant in the script. (3) T h e c o n d i t i o n s u n d e r w h i c h t h e script is activated. (4) T h e r e s u l t s o f completing the script. ( 5 ) T h e s c e n e s u n d e r w h i c h the script is executed.21 A scriDt. such as the restaurant script, is actually "a giant causal chain."22 Each event triggers a subsequent event. Scripts capture chains of events, ranging from the simple to the complav together with expectations arising from the events, much in the same way that frames package related knowledge. A malicious prosecution action would be an example of a very complicated script with numerous actors having interrelated expectations and roles set in the formal context of a legal proceeding. There is, therefore, a conceptual similarity between frames as 18 Parsayc, K. & Chignell, M., Expert Systems [or Experts, p. 20. • 19 Schank, R.C., & Abelson, R.P., Scripts, Plans, Goals and Understandings. 20 • Ibid, p. 42. . • ' 21 Parsayc, supra, note 18, p. 139. 22 Schank, supra, note 19, p. 45. 18 computational knowledge structures and scripts as psychological knowledge structures. III. FRAME-BASED KNOWLEDGE REPRESENTATION A group of frames in a knowledgebase is called a 'framebase'. An example of a framebase is shown in Figure 3P A frame must have: a name, which should designate the class of knowledge represented by the frame; and parent(s), which are the frame(s) designated as being immediately superior within the frame hierarchy. A frame may have multiple parents. F r a m e s c o n n e c t e d by d i r e c t parentage and located higher in the frame hierarchy are called ancestors. In Figure 3, the Automobile frame is an a n c e s t o r o f t h e F e r r a r i f r a m e . The Mercedes DLframe is not an ancestor of the Ferrari frame because, even though it is higher in the hierarchy, it is not .connected by direct parentage. Similarly, frames connected by direct parentage and located lower in the frame hierarchy are called descendants, or children.24 (1) (2) This diagram is drawn from examples in Parsaye, supra, note 18. It is probably more accurate to restrict the meaning of the term children (or child) to those frames immediately below in the frame hierarchy and connected by direct parentage. •n n n n >- t o r, ft , u u u u C u u o ffijaBsag F I G U R E 3 A framebase 19 Frame: Automobile Parent:, Thing ; Slot: Engine 7 Value: Petrol Frame: Sports Car Parent: Automobile Slot: Doors Value: 2 i j Slot: Engine Value: Petrol J B . msmmmm Frame: Mercedes PL 7. Parent: Automobile . . : Slot: Engine 7 ; Value: Diesel / Frame: Ferrari. Parent: Sports Car • fsiot: Doors Value: 2 • ; •'•; 7] • [slot: Engine Value: Petrol - Slots surrounded by a dotted box are inherited/: In most expert system shells, all frames are considered to be descendants of a frame, or root node, at the top of all frame hierarchies (see Figure 3). It may be called "Thing",25 "Root"26 or similar, has no parent or slots and cannot be modified. It is a purely conceptual entity, which is not directly involved with the computational processes of an expert system A frame may have: (3) Slots which store knowledge. Each slot has: (a) a name, which should represent the type of information stored in the slot. Each slot name must be unique to its frame; and (b) a value, which is the information, if any, stored in the slot. (4) Methods which attach to slots. These will be discussed later. A. Inheritance Inheritance is both a conceptual and computational process. It is founded on the hierarchical structure of frames, and "is based on the concept that objects or concepts tend to form groups and that members within a group tend to share common properties."27 The general idea is that if a class of objects or concepts share common properties, the properties should only be specified once at the appropriate level of generality (usually the class level), and not for each instance of the class. Thus inheritance is the process whereby frames inherit all of the slots and 2 5 A s i n l / C . 2 6 As in Kappa, a shell by IntelliCorp Inc. 2 7 Parsaye, supra, note 18, p. 143. values (together with their attached methods28) from their ancestors. From Figure 3, we know that a Ferrari is an instance of the sports car class, which, in turn, is an instance of the automobile class. We may infer that it has a petrol engine and has two doors, because the Ferrari frame inherits the Engine Slot and Value from the Automobile frame and the Door Slot and Value from the Sports Car frame. The knowledge about the engine and doors is represented once at the appropriate class levels and may be inferred for all instances (descendants) of the classes, thereby avoiding unnecessary duplication of knowledge. Since we live in a world where exceptions occur at almost every turn, inheritance may not always yield correct information. Thus inheritance may be overridden by specifying an explicit value for an inherited slot. Figure 3 demonstrates this, where a Mercedes DL is represented as having a diesel engine. For legal applications, the ancestor-to-descendant model of inheritance is of limited value. In many legal domains, abstract or general elements, such as the five elements required to make out a cause of action in malicious prosecution, are represented at the top of a frame hierarchy. The lower level frames define the more precise constitutive features of the elements. By looking at the lower, more precise frames, ancestor-to-descendant inheritance allows us to infer the general elements from the ancestors. However, such inference may be of little practical value because legal problem solving and reasoning tends to move from general concepts to the specific. In other words, a lawyer usually knows, in general terms, the nature of the legal problem to be solved and is more interested in the specifics of the area of law which apply to the client's fact situation. This may be demonstrated by Figure 2, which shows the logic flowchart and the framebase of the MPC, and Appendix I, which lists the contents of the frames. In the initiation of 2 8 "Methods" will be discussed shortly. 22 p r o c e e d i n g s e l e m e n t , t h e l o w e r level frame "Defendant initially unaware" inherits t h e slots a n d va lues of its p a r e n t "Causal connect ion" a n d its ancestors "Who i n i t i a t ed p r o c e e d i n g s " and INITIATION OF PROCEEDINGS. The information r e v e a l e d by th i s e p i s o d e of inheritance would probably already be known to the user a n d , a t any r a t e , w o u l d h a v e b e e n r e v e a l e d by the sequence of questions. Thus, e v e n t h o u g h ances to r - t o -descendant inheritance takes place within the MPC's framebase, the MPC, with one exception discussed below, does not use inheritance to access knowledge stored in frames.29 In fact, descendant-to-ancestor inheritance is probably more appropriate to legal applications.30 This model of inheritance would allow us to infer from a higher level frame, representing a general element, the constitutive features of the element. On this basis, we would be able to infer from the initiation of proceedings frame in Figure 2 that in order to establish the element of initiation of proceedings, the issues of immunity, how the proceedings were issued and who issued the proceedings must be considered. This information accords more with the nature and requirements of legal practice than the information derived from ancestor-to- descendant inheritance. The only useful application of ancestor-to-descendant inheritance in the MPC is in the creation of the frame User Profile, which keeps a record of the user's answers during a consultation. Rather than explicitly creating a slot for each stage of the consultation where the user might answer a question; I have made the User Profile frame a child of the Cases frame (see Figure 4). The Cases frame, being the schema of the Cases Database, contains all the necessary slots which are inherited 2 9 Ancestor-to-descendant is the only form of mheritance available in I/C. 3 0 Desccndant-to-ancestor inheritance is available in some expert system shells, such as Ncxpcrt Object, a product of Neuron Data, Inc.. m 23 by the User Profile frame. The slot values are also inherited, but are not relevant to the User Profile frame, and are overwritten by the user's answers to questions. This is an example of overriding inheritance by explicitly changing the value of inherited slots. B. Methods: Integrating Frames, Rules and Computing Procedures Frames allow schematic representations of legal knowledge to be implemented computationally. All legal expert systems should 'have a logic flowchart or model of their domain, or else they are in danger of becoming an unwieldy mass of intertwined rules and procedures. Frames enable flowcharts and domain models to become a dynamic part of an expert system. Changes to the structure of a frame-based system may be conceived of and implemented at both a conceptual (schematic) and computational level simply by changing the framebase. A schematic representation of a domain provides conceptual clarity, so the structure of the domain is readily understandable by the knowledge engineer and those who work on the system. This applies equally to frames, which are schematic by their nature. It is much easier to look at a framebase and follow the structure and logic flow of an expert system, than to try and unravel a complex rulebase. This is not to down-play the importance of rules, because all framebases are necessarily founded on higher-level meta-rules about the structure of a domain. The important point is that, except in the simplest of domains, a framebase is always conceptually clearer than a rulebase. As a means of conceptualizing a domain, frames have many benefits as passive data structures. However, the true power of frame-based knowledge representation is realized when frames act as both passive and interactive data structures. The interactive ability is achieved by integrating frames with rules and traditional computing procedures through the use of "methods of computation", known, as methods.31 Methods "monitor the storage and retrieval of information in a frame system."32 A method is a 'trigger' which attaches to a slot and is fired when an attempt is made to access information in a slot. When fired, a method invokes execution of a rule or other computing procedure. A method may be one of two types: Methods are called "attached predicates" in I/C. Parsaye, supra, note 18, p. 180. 25 (1) Read Method: when an attempt is made to read information from a slot; and (2) Write Method: when an attempt is made to write information to a slot. A Write Method must be able to distinguish between two values: (a) Current Value: the value of the slot before the new information is written to the slot; and (b) New Value: the value of the slot after the new information is written to the slot. An example of how a read method and a write method work is shown in Figure 5.33 FIGURE 5 Methods attached to a slot. This figure is adapted from Parsaye, supra, note 18, p. 181. It Figure 5, assuming an attempt is made to read the , (type of proceedings issued) slot, the lf-Needed meth rf u e ^ R O C T Y p e ^ J i l U l a s a t o T y p E „ n ' e U ' o d execution 0 f , h e 7 f 'he instantiation is attempted the ,f ^ TOE, . N e w w w t J method „ i 8 g e r s new value of the slot. a '«®M>asedreasoning p , 0 C e s s e s f o r t h e ^ read and consequentially invoke rules and nm „ P 5 , 0 , 5 an<< >° and procedures gives .h. t.... . P'ogtamming power M d flexiblIilv 8 ' h e b , 0 * < 1 « = "gtaee , great — » <-at on,, data o , a certain 1 T «°<° « * " — m i , , ~ - 3.0. data, perhaps ^ ^ ~ «.«hod might „ l s e „ P ' a s k ' n s , h e « » question, A Read „ r a certain message to be displayed to the user, and so on. ™ S W h 0 , e of communication bv representation structure has been termed "m * process m , y a,so b. c o , , , ^ „ " Meritance m < " n ' k inherited with the s t e , „ . . , . " " P m a m , 0 another advantage of inheritance I , " ~ * — » » i — d e m e n t e d 27 once at the appropriate class level and "ic th«„ ... • level, and is then propagated down through the hierarchy to ail objects tb, , n e e d i t , „ T h f e (1) a reduction in the amount of programming required; (2) conservation of computer resources; and (3) uniformity consistent within the expert system. An important consequence of these features is that frame-based legal expert systems are readily extend,He. Once the d e b a s e , methods, „ , e s „ d Z J J Z r r ^ - — - — r which mhent from and take advantage of the frames already in place Methods transform frames from passive to interactive data structures w ^ - — - - « » sequences and l.gica, processes. d i f f a l f e w i t h tocing maintaining and upgrading pureiy ^ ^ ^ J 0 e „ f & a m e s ^ m e i h o d j ^ ^ P T b I 0 " " ^ ° S S O d a , e d W " h ^ — - than immersing in the rulebase as a whole. T f e the W l e d g e engineer n ° ' — ' - * - - ~ - - p i e * relationship Z nilebase as awhole, but how they interact with specific frames and slots. Rules are r r - r - i n " * * - - — 21 ,m" and re,a,ivciy u~ • « ~ ^ u n d e r s « a n d a b , e . * ^ , „ l e s ^ _ ^ OOP in the Real World, supra, note 1 5 , p. 3 8 . 28 knowledge representation structure, a frame-based system acquires a level of conceptual clarity not possible with purely rule-based systems. For example, the "Defendant related information" frame (INITIATION OF PROCEEDINGS e.ement) in the MPC deals with the scenario where the Defendant related information to a judicial or ministerial officer (see Figure 2 and Appendix I). The REL INFO (Defendant related information) slot of this frame has an attached write method OtAdded predicate) which invokes a rule to check the user's answer. If the answer was that the Defendant related false information then the answer is relevant to the issue of lack of reasonable and probable cause A message is passed to the INVESTIG (how the Defendant investigated the~ proceedings) slot of the "Proper investigation" frame, instantiating the slot with the value the "Defendant fabricated evidence". The MPC will not attempt to subsequently find a value for the INVESTIG slot, and will p r 0 Cess the value provided by the message passing. In a p u r e l y m l e . b a s e d ^ ^ ^ ^ implement this sort of procedure would probably be buried in the rulebase, and their effect would only be discernible on close scrutiny. Frames a.low these sorts of operations to be readily traced. n * MPC makes extensive use of read and write method, A consultation is initiated when the system attempts to read the value of the "action" slot of the top level frame "Malicious Prosecution". A read method attached to the action slot attempts to instantiate the slot with a value of passed or failed (whether or not an action is possible) by attempting to read a value for the slot corresponding to the first of the questions to be asked of the user. A read method attached to this slot causes a question to be asked of the user. Thus, with some exceptions, the logic flow in the MPC is directed by slots which have: 29 (1) a read method which, when triggered,: (a) asks the user a question; and (b) instantiates the slot with the answer; and (2) a write method which, when data is written to the slot: 0 0 processes the user's answer, usually by case-based reasoning processes with the Cases Database; and (b) attempts to read the value of the slot corresponding to the nexT question to be asked of the user. This cycle continues until the action slot of the Malicious Prosecution frame is instantiated with a passed or failed value. There is, therefore, constant message passing between the slots and frames of the MPC's knowledgebase and the consequent invoking of associated rules and computing procedures. C. Integrating Frames and Databases The nature of the practice of law requires that legal expert systems be able to access and reason with large amounts of data. This data, whether case law/statute or other, must be stored in a database in order to be accessed by an expert system. A database has a structure, or schema, which defines its fields and their attributes. The schema may be recorded in a frame, such as the Cases frame in Appendix VI 30 which contains the schema of the Cases Database.37 The slot names of the Cases frame are equivalent to database fields and the slot values define the attributes of fields. If the schema of a database may be represented by a frame, it follows that the records of a database may also be so represented. This relationship is illustrated in Figure 6, where each record frame is a child of the schema frame and inherits its slots. Most frame-based expert system shells provide functions to: (1) extract a schema from a database and store it in a frame; (2) read records from a database and store them in frames; and (3) write records to a database.38 Legal expert systems primarily read data from a database, usually to explain and justify legal conclusions with relevant law. However, writing data may also be useful, especially for case indexing and weighing procedures, which may require slots (fields) to be updated during a consultation.39 The mapping between databases and frame-based knowledge representation is extremely valuable for legal expert systems. It allows the law relevant to the domain to be imported into the knowledgebase and assume'an interactive role. Database and domain knowledge may therefore be: 37 The parent "Relation" of the Cases frame is an I/C flag which identifies the frame as the schema of a relational database. 38 Most shells are limited to passive database functions of reading and writing records, and, perhaps, indexing. However, Intelligence/Compiler can convert an external database, such as dBASE or Lotus 1-2-3, into a proprietary frame-based database of the structure shown in Figure 6. Intelligence/Compiler has database management functions, sUch as queries, indices, filters and SQL (Structured Query Language), which allow expert systems to perform sophisticated database operations. 39 These processes, as implemented in the MPC. are explained in Chapter III. : F I G U R E 6 Integrating frames and databases Frame: Cases Parent : Relation Slot: NAME Value: String, 60 Slot: RES_MALICE :. Value: String, 6 Frame: Case 3 Frame: Case 2 Frame: Case 1 .'":• Parent : , Cases Slot: NAME Value: A v B Slot: RES_MALICE ' Value: passed 32 (1) represented uniformly; (2) accessed by standard frame operations; and (2) integrated with rules and procedures, thereby achieving a seamless integration of all of the components of a legal expert system. • IV. CONCLUSIONS Frames embody a schematic representation of a do. nain within the expert system itself. Inheritance provides a means of inferring domain knowledge, and promotes economical programming and consistent formats. Frames, via methods, interact with and control the processes of the expert system. Methods allow rules and computing procedures to be associated with the frames in a contextually relevant and sensitive manner. Databases may be accessed by frame operations. These features result in a hybrid system of knowledge representation and computer programming which is: (1) dynamic; (2) visual; and (3) able to represent a domain from a'real-life'perspective. 33 Unlike more domain specific matters, such as case-based reasoning, frames should realize substantial benefits for the design and construction of all legal expert systems. CHAPTER ffl USING CASE-BASED REASONING TO BUILD LEGAL EXPERT SYSTEMS I. INTRODUCTION This Chapter describes the CBR strategies implemented in the MPC. The * MPC contains no specific legal ruies about the law of malicious prosecution. Instead, it draws its conclusions and finds supporting case law solely from the case law contained in the Cases Database. The only rules in the MPC's knowledgebase are higher level rules which deal with matters such as the elements required to make out a cause of action, the order in which questions are asked of the user, case retrieval and case display. Insofar as legal expert systems are concerned, CBR is at an embryonic stage. Ashley and Rissland have written about CBR and legal expert systems, but there is otherwise little theoretical or practical material.40 The theories and methodologies of CBR outlined in this Chapter were developed and refined during the course of building the MPC. Rissland, Edwina L. & Ashley, Kevin D., A Case-Based System for Trade Secrets Law, Proceedings of 1st International Conference on Artificial Intelligence and Law, (Boston) A.C.M. Press, New York, 1987, p. 60; Ashley, Kevin D., Modelling Legal Arguments: Reasoning with Cases and Hypothetical, M.I.T. Press, Cambridge, Mass., 1990 (in press). 35 II. CBR DESCRIBED Given the scarcity of material on CBR and legal expert systems, it is important to explain what I mean by CBR. I do not propose to do this in terms of a comprehensive definition, but by suggesting features which a CBR system ought to have. In general terms, I see CBR as the process whereby a body of legal knowledge (e.g. cases, usually contained in a database) drives or directs the conclusions reached or the advice given by a legal expert system. Therefore, a rule- based legal expert system which contains specific legal rules about its domain is not a CBR system because its conclusions or outcomes are predetermined by its rules. This may be illustrated by the following rule from the tort of malicious prosecution: IF the allegedly malicious proceedings were civil proceedings AND the proceedings were not bankruptcy proceedings AND the proceedings were not winding up proceedings AND the loss suffered was damage to reputation THEN the Plaintiff will not succeed in an action for malicious prosecution.41 This rule may have a confidence factor attaching to it, say 10Q%.42 Wiffcn v Bailey & Romford U.D.C. [1915] 1 K.B. 600. A confidence factor, or certainty factor, is a means of expressing belief in the truth of a fact. It is normally expressed as a percentage and has a numerical range of 0% to 100%, where 0% represents a belief that a fact is "absolutely false" and 100% represents a belief that a fact is "absolutely true". Most expert system shells allow confidence factors to be attached to rules. For further information see Parsaye, supra, note 16. 1 n n n n u u u u 0 n o 1 u i o A legal expert system which contains rules like the one above may justify its conclusions by reference to cases in its database, but the cases do not, strictly speaking, drive the conclusions. The knowledge engineer when building the system would have used the case law to draft the rules, but once implemented it is the rules which drive the conclusions of the system and the cases, originally used as sources of legal knowledge, revert to mere justifications of the rules. The cases may be retrieved and displayed to justify the conclusions of rules, but their function as repositories of legal knowledge has been usurped by the rules. If a new case holds that one may indeed sue in malicious prosecution in the scenario outlined in the rule above,43 then the knowledge engineer of a rule-based system must somehow modify the system to account for the new case. Depending on the interpretation of the significance of the case, the knowledge engineer might: (a) rewrite the rule to reflect a different conclusion; (b) delete the rule; (c) assign a different confidence factor to the rule; or (d) disregard the case. Options, (a) and (b) may involve substantial reprogramming of the expert system. This sort of rule-based legal expert system is not, in my opinion, a CBR system. In a CBR system, where the cases drive the outcomes, the change in law in the above example should be able to be implemented simply by adding a new case to the database. The expert system would take notice of the case in future consultations and adapt its conclusions accordingly. Stoffman v Ontario Veterinary Assn. [1990] OJ. No. 1151, Action No. 542/85, Unreported (Ont. H.C.). 37 Another aspect of the CBR process is the assigning of weights to cases in accordance with their precedential value. If a CBR system draws a conclusion based on case law in a database and justifies the conclusion by reference to the cases, it ought to be able to rank the cases in a way meaningful to lawyers. One such method may be a numerical ranking system, based on factors such as the jurisdiction of the court, the position of the court within the court hierarchy, the date of the decision and so on. This sort of ranking system may also be used to prefer one line of authority over another. The crux of this aspect of CBR is that some order should be imposed ovw cases retrieved from the database. I believe, therefore, there are two stages to a CBR legal expert system in case-based law. These are, in order of importance: (a) the legal conclusions or outcomes of the expert system are directly driven or controlled by the cases; and (b) the cases are ranked or ordered in a manner which allows some cases to be preferred over others. III. THE CBR PROCESSES OF THE MPC A. From Rules to CBR My purpose in building the MPC was always to produce a CBR system. To do so, 1 started with a rule-based model. Rules are, after all, in one sense or n n n n <r j n n n u u u u * C u a u another, the fundamental units of knowledge representation in law. I then combined frame-based knowledge representation with the rulebase to enhance the conceptual clarity of the system. Finally, I replaced the legal rules with CBR strategies, resulting in a frame-based CBR system. The logic flowchart of the rule-based version is identical to that of the CBR version (Figure 2). When moving from a rule-based to a CBR system, the highly specific legal rules are deleted from the knowledgebase, but the more general rules which form the knowledge structure of the domain are retained. In the MPC, these general rules dictate matters such as the elements required to make out a cause of action and the order of questions. The rules which control case retrieval and display are then added. The CBR processes which I implemented were thus a natural progression from the rule-based version of the MPC and map onto the original rule-based structure. Building a CBR system may be viewed as an evolutionary process. To build a rule-based system, legal knowledge is extracted from cases and represented in rules. When progressing to the CBR stage, the knowledge structure of the domain is extracted from the rulebase and the highly specific legal rules, which form the vast majority of the rulebase, are discarded. . Discarding these rules does not amount to removing the expertise from the expert system. The primary contribution of any expert to an expert system is the general structure within which problems may be solved. This structure is inevitably founded on a rule-based model of the domain, whether or not the rules are explicitly stated. Therefore, when specific legal rules are removed for CBR processes, it might be said that their 'ghosts' linger. Although their presence no longer has any direct effect on the outcome, which is now driven by the cases, their influence remains to 'haunt' the system. 39 B. Terminal Nodes As with most legal expert systems, whether rule-based or otherwise, there are certain critical points in the logic flowchart. These represent stages during a consultation where, if the user gives a certain answer to a question, a 'failed' condition is generated and the consultation stops.44 The significance of the failed condition varies according to the domain. In general terms, it means that the goal of the expert system, assuming a backward chaining model, as are most legal expert systems, has not been satisfied. These critical points may be referred to as the • • •« terminal (or leaf) nodes of the decision tree. There are 19 terminal nodes in the MPC (see Figure 2). Non-terminal nodes usually appear higher in a decision- making tree than terminal nodes. They are used to elicit information from the user which is used at subsequent terminal nodes and/or to determine the path along which the consultation proceeds. As will become apparent, the terminal nodes are critical to the CBR process. However, before turning to the actual CBR processes, I will describe the structure of the MPC's Databases and the frames that are used to represent case law. C. .The Structure of the Database and Case Representation Frames The structure of the dBASE IV database and a sample record are shown in Appendix V. I /C allows the knowledge engineer to convert a dBASE database into a proprietary I /C database for use by I/C knowledgebases.45 I /C represents In some expert systems, the consultation may continue, notwithstanding the failed condition, but the user would be informed of the failed condition by an appropriate message See, supra, note 38. n n n n 3 n o 1 u u u u u u 0 c 44 45 40 d B A S E d a t a b a s e s as a series of virtual (disk-based) frames.46 For reasons e x p l a i n e d b e l o w , t h e MFC contains two databases, both derived from the dBASE IV d a t a b a s e . A p p e n d i x V I shows the schema frame of the larger Cases Database and a f r a m e c o n t a i n i n g a sample record. Appendix VII shows the schema frame of the smaller Ma tches Database and a f r ame containing a sample record . The field names of the dBASE IV database correspond to the slot names of the schema and record frames. The slot values of the schema frames define the data types (string, r e a l n u m b e r , e t c . ) and 'field' lengths.47 The slots values of the record frames r e p r e s e n t t h e f a c t u a l attributes of the cases. The advantages of integrating databases with frames are discussed in Chapter II. T h e a b b r e v i a t e d a n d somewhat unintelligible form of the slot names is due to a dBASE IV constraint of ten characters per field name. An interpretation of the slot names used in the MPC (in the framebase, Cases and Matches Databases) is provided in Table I. TABLE I The meaning of the slot names used in the MPC SLOT . NAME CITATION YEAR COURT COURT_TYPE JURIS MEANING • • The name of the case. The citation of the case. The year the case was decided. The court which decided the case. The type of court: trial, appeal or highest level. The jurisdiction of the court: country, state, province or territory. 46 In I/C, by comparison, 'normal' frames (non-database frames) arc volatile structures stored in the computer's RAM (Random Access Memory). 47 To be consistent with frame nomenclature, I will refer to 'fields' as 'slots'. >n n n n • j n'n n /u u u u< o u b j 41 SLOT MEANING JURIS_STAT The jurisdiction selected by the user. HELD_FOR The successful party. WEIGHT The relative precedential weight of the case. MATCHES The number of matches to the user's fact situation. INVOLVMNT Did the involvement of the Plaintiff in the prosecution of the Plaintiff give rise to an issue of immunity? EXTENT The extent of the involvement of the Plaintiff where there is an issue of immunity. HOW How the proceedings were initiated. WHO Who initiated the proceedings. CAUSAL_CON The causal connection between the Plaintiff and the person(s) who initiated the proceedings. REL_INFO Did the Defendant relate true or false information to a judicial or ministerial officer? WHEN_AWARE The actions of the Defendant after becoming aware of the initiation of proceedings. PROC_DTMD Were the proceedings heard or determined? NOT_DTMD Why the proceedings were not heard or determined. TERMIN The outcome of the proceedings. DAMAGES The loss suffered by the Plaintiff. IMP_CONSQ Was the detention, threat of imprisonment or imprisonment a direct result of the prosecution? REP_DEFAME Did the proceedings necessarily defame the Plaintiff's reputation? PROC_TYPE The type of proceedings issued. BNK_TRADER Were bankruptcy proceedings issued against a : trader? WUP_TRD_CO Were winding up proceedings issued against a trading company? OTRCVLLOSS The loss suffered by the Plaintiff from civil - proceedings other than bankruptcy, winding up or proceedings where the court had no costs ' • • powers.' • NOCOSTLOSS The loss suffered by the Plaintiff from civil proceedings where the court had no costs • powers.;• INVESTIG How the Defendant investigated the proceedings. ADVICE_OK How the Defendant obtained and acted on . • .• • ./_•• advice. : MALICE The primary interest or motive of the • Plaintiff in initiating proceedings. n n ri n i n n u y,u u u, >' d u u i 42 SLOT MEANING The result slot of the EXTENT slot. The result slot of the HOW slot. The result slot of the WHO slot. The result slot of the TERMIN and NOT_DTMD slots. The result slot of the BNK_TRADER and WUP_TRD_CO slots. The result slot of the DAMAGES, REP_DEFAME, IMP_CONSQ, OTRCVLLOSS, NOCOSTLOSS, WUP_DAMAGE and BNK_DAMAGE slots. The result slot of the INVESTIG and ADVICE_OK slots. The result slot of the MALICE slot. RES_EXTENT RES_HOW RES_WHO RES_TEKMIN RES_TRADER RES LOSS RES_CAUSE RES MALICE The slots NAME, CITATION, COURT contain the formal descriptive * details of cases. The slots COURT_TYPE (the level of the court: trial, appeal or highest), JURIS (the jurisdiction of the court), JURIS STAT {the status of the jurisdiction of the court in terms of the jurisdiction selected by the user), HELD FOR, MATCHES and WEIGHT are used for the weighing of cases, which will be discussed later. The slots beginning with INVOLVMNT (whether the Defendant can claim immunity) through to and including MALICE represent factual attributes of cases. Each question asked Of the user corresponds to a slot of a frame, and the value of the slot is instantiated with the user's answer to the question. A list of the questions and their corresponding frame and slot names is provided in Appendix VIII. The last eight slots, whose names begin with the letters "RES" (for result), correspond and map onto the terminal node frames of the MPC (see Figure 2 and Table I). The RES slots form the heart of the CBR process. Their purpose is to represent the court's finding on a particular factual scenario. They may have a value of "passed" or "failed", depending upon the court's finding on the factual r i ' • » n ii ri n i n n r A * u u u u " c< li a i - t-..!.' .... . . . .'.... . •'. , > .. -...;, • 43 attribute associated with the RES slot in terms of satisfying the elements of a malicious prosecution action. They replace the highly specific legal rules of a rule- based system. Say, in a hypothetical criminal case, that a stay of proceedings was entered by the prosecutor. This is relevant to the termination of proceedings element. In a rule-based system, the knowledge engineer would draft a rule, based on the case law specifying the effect of the entering of a stay. In the MPC, the appropriate RES slot of a case frame containing this factual attribute would be instantiated with a value of passed or failed, depending upon the court's finding on whether entering a stay satisfies the termination of proceedings element. I n p r a c t i c e , c o u r t s d o n o t often state explicitly whether a factual attribute of the Plaintiffs case satisfies the requirements of a cause of action. By contrast, courts will almost always state when a factual attribute does not satisfy certain r e q u i r e m e n t s . T h e r e f o r e , a f i n d i n g that a factual attribute necessary to making out a c a u s e o f a c t i o n s a t i s f i e s c e r t a i n requirements, if not explicitly stated, may be readily inferred in most circumstances from the absence of a contrary finding. If there is any doubt, the knowledge engineer may only assign a factual attribute to a slot and not assign any value to the corresponding RES slot. The factual attribute slot will still be used for factual pattern matching at the end of a consultation, but the absence of a value in its corresponding RES slot means the factual attribute will be excluded from the CBR process. Uncertainty about factual interpretation may be handled by creating a separate frame record for each possible factual interpretation. THUS the model of CBR implemented in the MPC provides flexibility for representing judicial and factual uncertainty in case-based law. Table I and Figure 2 show how some terminal nodes share RES slots. Sharing may occur when separate paths of inference terminate at terminal nodes. • ( n n.n n ' j n a, r U U u u -A C'd 0 0-,.; ' ' " F o r e x a m p l e , F i g u r e 2 s h o w s t h a t f o r the TERMINATION OF PROCEEDINGS e l e m e n t t h e r e a r e t w o s e p a r a t e p a t h s of inference. The first path ("Outcome of p r o c e e d i n g s " f r a m e ) r e p r e s e n t s t h e scenario where the proceedings initiated against t h e P l a i n t i f f w e r e h e a r d by a j u d i c i a l authority. The second path ("Why not d e t e r m i n e d " f r a m e ) r e p r e s e n t s t h e scenario where the proceedings were not heard b y a j u d i c i a l a u t h o r i t y . S i n c e the paths are logically mutually exclusive, the two t e r m i n a l n o d e s ( f r a m e s ) " O u t c o m e o f p r o c c c d i i i g s " and "Why not determined" may s h a r e t h e R E S - T E R M IN (the finding of the court on the termination of p r o c e e d i n g s e l e m e n t ) s lo t . By contrast, in the DAMAGES element, the terminal nodes (frames) "Bankruptcy - trader" and "Bankruptcy - loss" are in the same path of inference, so they must each be allocated a separate RES slot. D. Using Case Law to Direct the MPC's Conclusions (or Stage (a) of the CBR Process) During a consultation, when a question at a terminal node level is asked of the user, the Cases Database is searched for: (a) all cases, irrespective of outcome, which contain the factual attribute -suggested by the user's answer;48 and (b) the value of the corresponding RES slot. I call this process the "Vertical Search Method", which is shown in Figure 7,49 and which may be illustrated by the following example. It was not necessary to program the MPC to scarch on more than one factual attribute at a, time, because alternative possibilities are eliminated by the sequence of questions. It was Cal Deedman's idea to represent case law as a cuboid and Dorota Gcrtig prepared the sketches. . .••.• "(VV 48 49 Figure 7 CASE DATABASE (represented by cuboid) S1 . . . « are the slots of case, record frames Cases 1 . . . n are cases in the database 46 Let us assume the user's answer to the question corresponding to the MALICE slot of the "Defendant's motive" frame was "The Defendant's primary interest in prosecuting the Plaintiff was to secure a financial or property advantage".50 The Cases Database is searched for all records (cases) where the MALICE slot contains this answer. As each case is retrieved, the value of the RES slot associated with the MALICE slot is noted. Depending on the value of the RES s lo t , t h e c a s e name is stored in either the "MALICE passed list" (the decision is f a v o u r a b l e to t h e Plaintiff) or the "MALICE failed list" (the decision is favourable to the Defendant). If, after all relevant cases have been retrieved, the MALICE failed list is empty, the consultation proceeds to the next stage. If the MALICE passed list is empty and the MALICE failed list contains cases, the consultation stops, the user is informed that no cause of action is available and reasons and supporting authority (the cases in the MALICE failed list) are displayed. If there are cases in both the passed and failed lists, the MFC recognizes the situation as one where conflicting authorities exist. The MPC refers the user to the convicting authorities, explains the essence of the conflict and suggests which line of authority should be preferred. Tlie MPC's choice of a preferred line of authority is based on an evaluation and ranking of the relative precedential value of the cases in each line. This process is described shortly. If the MPC prefers the Defendant's line of authority the consultation stops, or if the Plaintiffs line is preferred the consultation proceeds to the next stage. This process occurs at each terminal node of the consultation, Lists of passed and failed cases are retained for review at the end of the consultation. See Appendix VIII for the text of the question. At this stage of its development, the MPC alerts the user to all instances of conflicting authorities. However, I plan to implement a feature whereby the user may select a threshold level of weight of authority. If a conflicting line of authority does not equal or exceed the threshold weight, it will be ignored. This would allow old cases, the law in which may be outdated, to be retained in the database for factual pattern matching, but without continually triggering a state of conflicting authorities. E. The Weighing and Ranking of Cases (or Stage (b) of the CBR Process) •n There are two aspects to this process: (1) The tallying of fact matches. At the end of a consultation the MPC compares the User Profile frame, which contains the user's answers from the consultation, to the ; Cases Database. The total number of fact matches between the User Profile frame and the cases in the Cases Database is calculated. A case may have between one and fourteen fact matches in one consultation. The cases - closest to the user's fact situation, those with the greatest number of matching factual attributes, may thus be displayed. I call this the "Horizontal Search Method", whereby a case is treated as a 'slice' of a body of case law (see Figure 7). The MPC allows the user to set a minimum number of fact matches to screen out those cases with less than the specified number of fact matches. The cases may then be displayed in descending order of nun.oer of fact matches in two categories: (a) (b) where the court held for the Plaintiff; and where the court held for the Defendant. This gives the user an indication of how the authorities are 'stacked'. The number of fact matches for each case is not stored in the Cases Database but in the MATCHES slot of the corresponding case frame in the Matches Database. The Matches Database contains the same cases as the Cases Database, but cases are only represented once, unlike the multiple representations of some cases in the Cases Database. If the Cases Database was used to record the number of fact matches, the correct number might not be recorded for those cases with multiple representations in the Database. This is illustrated by the following example. In Reid v Webster, the proceedings were initiated by the swearing of an information and the Plaintiff suffered three types of damage: (1) threat of imprisonment; (2) damage to reputation; and (3) financial loss.51 I have entered one case frame (record) in the Cases Database for each type of damage. The first case frame contains the descriptive details of the case and .its factual attributes, including the value "information sworn" for the HOW (how the proceedings were initiated) slot and the value "threat of imprisonment" for the DAMAGES slot. The second and third frames contain only the descriptive details of the case for identification purposes and those factual attributes that differ from the first frame i.e. "damage to reputation" and "financial loss". Let us assume that in the- user's fact situation an information was sworn and the Plaintiff suffered financial loss. (1967) 59 D.L.R. (2d) 189. The fiist frame of Reid v Webster would get one fact match for "information sworn" and the third frame would get one fact match for "financial loss". Thus instead of a total of two fact matches for the one case of Reid v Webster the Cases Database would show one fact match for two representation of the same case. Using the Matches Database to record fact matches avoids this problem because there is only one representation (and one thus only MATCHES slot) for each case. (2) The calculation of the relative precedential weight of cases. Each case in the Cases and Matches Databases is assigned a point score, with a numeric range of 15 to 70 points, which is stored in the WEIGHT slot of the cases in these Databases. Point scores represent the relative precedential weights of cases. The system of calculating point scores and an example are set out in Appendix IX.52 It is not intended to be a comprehensive assessment of the precedential force of each case, for this would be the province of another substantial expert system, but a simple method of ranking cases based on two major factors: . ( a ) the level of the court (trial, appeal or highest); and (b) the jurisdiction of the court53 The MPC allows the user to set the jurisdiction for a consultation, and the MPC accordingly adjusts the weights of the cases in the Cases and Matches 52 This system was developed in conjunction with A.I. and law personnel at The University of British Columbia, Faculty of Law. 53 Although a difficult factor to account for computationally, the date of the decision is also used in the weighing formula to a limited extent. See Appendix IX. 50 Databases.54 The MPC indexes the Matches and Cases Databases on the WEIGHT slot in descending numerical order. In other words, all cases retrieved and displayed to the user art ranked according to their weight from the most authoritative to the least authoritative. This permits the user to readily identify those cases which have greatest precedential force. The MPC prefers one line of authority over another by the following process:55 (a) Find the case with the greatest number of points in each line of authority. Prefer the line which contains the case with the greatest number of points. If the two cases are of equal weight, proceed to (b). (b) Compare the total weight of each line of authority. Prefer the line of authority with the higher total weight. If the lines are of equal weight, proceed to (c). (c) Declare the authorities to be of equal force. The primary purpose of the Horizontal Search Method and the calculation of the precedential weights of cases is to display case law to the user in a meaningful and ordered manner. The methods are simple, yet serve their purpose. An interesting legal expert system project would be to make sophisticated non-domain specific assessments and comparisons of the relative precedential weights of cases. As stated in Chapter I, the MPC allows the user to choose from any of the following jurisdictions: Australian states or territories, Canadian provinces or territories, New Zealand and England. A line of authority is a list of cases retrieved by the Vertical Search Method favouring one party on a particular factual attribute. 51 Connecting the MPC to such a system would be a significant enhancement to the MPC. IV. EVALUATING THE CBR METHODOLOGIES OF THE MPC Compared to rule-based systems, CBR systems offer significant advantages. Complex networks of specific legal rules may be eliminated, thereby significantly reducing the amount of programming. One of the greatest advantages of CBR legal expert systems lies in their ease of maintenance. In a purely rule-based system, reflecting changes to the law in the knowledgebase may involve substantial reprogramming. A change to one rule in the rulebase may require consequential changes to many other areas of the system. A purely rule-based system is thus a very brittle entity. By contrast, many changes to the law may be represented in a CBR system simply by adding new cases to its database. Whenever the MPC is required to: (a) - reach a legal conclusion; (b) support a conclusion with legal authority; or (c) find cases relevant to the user's fact situation, it searches the Cases Database for all cases which satisfy the search condition. Any new case law is thus automatically taken into account. When this feature is combined with the ability to rank cases (by the Horizontal Search Method and calculating the precedential weight of cases), a powerful system results If new •n n n n p / i D y ' ' u u U'U > C u l l 4  < < * i 1 cases added to the Cases Database conflicts with existing cases, the M P C recognizes t h e c o n f l i c t , a l e r t s t h e u s e r , r a n k s the authorities and displays them in an ordered and mean ing fu l manner . However, only those changes to the law which fall within the existing structure of the MPC's knowledgebase may be accounted for simply by entering new cases in its databases. More radical changes to the law, which require alteration of knowledge representation structures, may require more effort to implement. Say, a c o u r t d e c i d e s t h a t damages in malicious prosecution are no longer limited to the t h r e e r e c o g n i z e d types (personal, property and reputation),56 but any damage may TO, form the basis of an action. To account for this change, I would have to revise the damages frames of the framebase, the Cases Database schema and the questions ;.o be asked of the user. However, case law tends to change and progress gradually on a case-by-case basis, so such radical changes occur infrequently. An example of a gradual change which appears to be happening to the law of malicious prosecution concerns the traditional refusal of courts to allow malicious prosecution actions for civil proceedings other than bankruptcy or winding up proceedings.57 This refusal is based on antiquated notions of the public perception of civil proceedings and the effect of civil proceedings on a person's reputation, and a commercially unrealistic view of legal costs in civil proceedings.58 Some recent cases appear to have sidestepped the old rule and allowed malicious prosecution actions for civil proceedings other than the exceptions noted above.5' I have 56 Saviie v Roberts (1698) 1 Ld Rayin. 374; 91 E.R. 1147. 57 Wiffen v Bailey & Romford U.D.C. [1915] 1 K.B. 600. For another limited exception see Coleman v Buckingham's Ltd [1964] N.S.W.R. 363. 58 See Fleming, J.G, Vie Law'of Torts, 7th ed.,1987, p. 581; Rogers, W.H.V., Winfield&Jolowicz on Tort, 13th. ed., 1989, p. 552. 59 Jervois Sulphates Ltd v Petrocarb (1974) 5 A.L.R. V, Stoffman v Ontario Veterinary Assn. [1990] O.J. No. 1151, Action No. 542/85, Unreported (Ont. H.C.). 53 allowed for a slot value in the TYPE OF PROCEEDINGS frame for this type of civil proceeding. Thus this change to the law may be accounted for simply by entering the new cases into the Cases Database. It should now be apparent that, when designing a CBR system, the knowledge engineer should bear in mind trends and possible changes to the law in the domain. I do not suggest that the knowledge engineer must have a crystal ball, but I submit that a legal domain expert should be aware of the general direction in which the law in the domain is heading. Thus, by comparison to a purely rule-based system, a CBR system should probably have a wider conceptual structure in order to accommodate changes to the lav/, Another advantage of having the MPC always search the Cases Database is that lists of retrieved cases are dynamically constructed at runtime. Whereas some systems simply provide 'canned text' lists of authorities, the lists create / the MPC during each consultation contain the most up-to-date case law m the Cases Database. Representing legal uncertainty in terms of conflicting lines of authority, one line of which is preferred over another, is far more meaningful to practicing lawyers than methods used in other legal expert systems, such as confidence factors.60 It is more consistent with the practice of law for a lawyer to present two sets of cases and state that the law derived from the cases is eitherZ or Y, but probably X, rather than to state that there is a 75% possibility that the law is X, without referring to the possibility that it is Y. The problem with stating legal conclusions with confidence factors is that the alternative(s), those with lesser confidence factors, are usually not displayed." Where uncertainty exists, the expert system should present the lawyer with the alternative(s) and suggest the preferred alternative, but allow the lawyer to 60 Supra, note 42. ' ' S ^ ; - ? ' ' " ' : " ^ make, the final decision. To withhold alternative(s) from the lawyer may be misleading. The lawyer may, of course, take the alternative preferred by the expert system into the decision-making equation. Possibly the most important feature of the MPC's CBR methodology is its ability to search case law by the two methods - the Vertical and Horizontal Search Methods - depicted in Figure 7. The Horizontal Search Method does not permit the user to assign degrees of importance or relevance to factual attributes of the problem at hand so that these some attributes are afforded more weight when cases are retrieved. This does not imply that the MPC lacks a theory of relevance about its domain. The deep structure approach to knowledge representation, upon which are founded the structure of the MPC's framebase, the schema of its Databases and the factual attributes elicited by the questions asked of the user are founded, furnishes us with a theory of relevance about the domain. This theory of relevance is, therefore, 'embedded' in the list of cases retrieved by the Horizontal Search Method because cases are selected by matching factual attributes. It is left to the user to consider further the relative importance and relevance of the factual attributes of cases in light of the actual problem at hand. The Horizontal Search Method goes hand-in-hand with the Vertical Search Method. Whilst the Horizontal Search Method retrieves ,'cases containing a collection of factual attributes, or slices of case law, which are similar to the user's overall fact situation, the Vertical Search Method retrieves all cases containing the factual attribute suggested by the user's answer, regardless of any other factual attributes which the cases may contain or the overall result of the case. By allowing 55' mf the user to focus on individual attributes of cases u, v • - « * * . * « o f d e 8 i r : z S M r e i o , tbe user's „ „ „ p r o b , e m 8 " ™ P O « » c e ,„ relevance, dictated by ffie „ S e , s o r a fact Z " " already in p ] a c e at the structural level ' * - » - to succeed. Le t u s a s s u m e . ' ^ - D ™ e elements in order ^ t us assume that 111 case A'in thf Cases r>n u , « significant finding on the e lem.n , , , ' „ « conr, „ B d e — . U us 1 n 0 t W , t a ^ « " * A i S o n t h e malice element Th„ w • would retrieve c a s e * but „ ^ S e a r c h ^ t h o d case a, but cannot present it to the user in , three reasons: " a m « « M g f r l manner for (a) C a s e * would be included in th„ . included ,n the category of cases where the ,, successful which would mislead , h , , d a m W a S significance may be undervalued ar.J overlooked; the u s e , H o l ^ T " """ * " ~ «0 she 7 d i S C ° V e d " 8 , h C of the -she reads „ M c h sbe is u n l i k e , , 0 d 0 , , . ^ bottom of a lis,. 0 8 0 , s b » i l e " « the K « (c) B, con ,™, , h e V e r t i c a l S e , r c h M e , w w m M r e t r i e y e _ ^ _ ^ Plaintiff on the issne of malice and display it to the user in its correct factual context. Horizontal and Vertiea, Search Methods, therefore, complement and eacn other. The Horizon,a, Search Method allows the use, to retrieve ^ ^ ^ m ° S t r e s e m ' , ' e ^ u s e r ' s complete fact profile. The Vertical S ^ c Method a„ows the user to consider the u s e , fact situation in terms of its a o„s the use, to assign degrees of l m p o r l a n c e t 0 t h e ^ depending on the particular p r o b t a a t ^ ^ „ ^ _ ^ • • ^ s e r s own criteria of relevance. The user has thus both a broad and a deep model of case retrieval and legai reasonmg w h i c h m a y , „ _ personalized' to the user's own relevance criteria. V. CONCLUSIONS the M p T f " 0 ™ ' " " ^ S e " C h M M h ° d S ' M * " » C B R — - , 0 " n a ! ° P t a i o " e d ^ system fo, use b , lega, I T c T i n " l a w - B y ~ , o — - - C B R 0 f a " » - • * — - n i n g f c l manner by which to enhanced by its ubili, to rank cases by thei, precedent,,, weight, thereby imposing order over an unstructured hod, of case iaw. This a„ows the MPC to « Judicial and factual uncertainty in terms of conflicting lines of authorities where one line is preferred over another. I believe I have demonstrated that CBR systems in case-based law are superior to purely rule-based systems in many regards. However, as is always the case with expert systems, such matters turn on the choice of domain. It may be that m some legal domains a hybrid rule-based and CBR system may be more appropriate. The CBR methodology of the MPC does not do away with rules entirely, but is a natural evolution from a rule-based system. I do not deny the success of previous expert systems which successfully represent open-textured and unstructured domains of case-based law with rule-based systems." However T believe CBR is a substantial advance in the field of law and A.I. that should beof great advantage in future legal expert systems projects. 6 1 e.g. 'The Nervous Shock Advisor', supra, note 10. CHAPTER IV REPRESENTING THE TORT OF MALICIOUS PROSECUTION COMPUTATIONALLY INTRODUCTION This Chapter sets out the deep structure used by the MPC to represent th? tort of malicious prosecution computationally. As explained in Chapter I, the MPC uses the deep structure approach to represent legal knowledge. The MPC demonstrates that it is possible to represent a relatively open-textured area of case- based law, which deals with abstract concepts like 'reasonable and probable cause' in a computational structure. Hiere are, of course, empirical problems of classification when trying to capture an unstructured body of case-based law within a knowledge representation structure. Some of the reports, particularly of the older English cases, do not contain enough factual details to allow the facts to be fully represented. In addition, there is always the possibility of debate about factual interpretation and how the facts should be represented. The latter difficulty may, to a great extent, be avoided by entering alternative representations of a case in the Cases Database as discussed in Chapter III. The MPC, being a CBR system, facilitates this approach 59 II. THE TORTOFMALICIOUSPROSECUTION Traditionally, there are five elements to a malicious prosecution action, all of which must b e proven: ( 1 ) Initiation of proceedings ("Init iationElement"); (2) T e r m i n a t i o n o f t h e p r o c e e d i n g s i n t h e Plafatiffs favour, where the p r o c e e d i n g s a r e c a p a b l e o f a favourable termination ('Termination Element") ; (3) Lack of reasonable and probablscause ("Cause Element"): (4) Mal ice ("Mal iceElement") ;and ( 5 ) D a m a g e s ("Damages Element").™ T h e elements a re listed in the ftteiHitinnaV nrde.r but the MPC uses a different o r d e r i n g by c o n s i d e r i n g t he D a m a g e s e l e m e n t a f t e r the Initiation and Termination E l e m e n t s a n d b e f o r e t h e C a u s e a - id Malice Elements. The rationale is that the In i t i a t ion a n d T e r m i n a t i o n E l e m e n t ! are procedural by nature and may thus be easily d i s p o s e d of first. T h e D a m a g e s Element is considered next because the c o n s u l t a t i o n s h o u l d stop if the user has not suffered damages of the recognized type. T h e C a u s e a n d Malice Elements, which are the most difficult and often closely related, are considered lau. I have developed a deep structure in terms of these five elements, as shown in Figure 2. It happened to be the case in malicious prosecution that it was not 62 Abrallt v North Eastern Railway Co (1883) 11 Q.BX'. 440 as approvd by the Supreme Court of Canada in Meyer v General Exchange Insurance Coloration [1962] S.C.R. 193. n n n n - j i n 3 u u u u >yL' 'M-l L necessary to took beyond these f ive e l ements for alternative structures because , a s demonstrated i n the fo l lowing discussion, the case law may b e accounted for i n terms of these e lements . I n other legal domains, traditional doctrinal classifications may b e inappropriate to the building of a legal expert sys tem and other structures may have to b e implemented. T h e Initiation, Termination and D a m a g e s E l e m e n t s are primarily technical and serve to set the parameters of the tort of mal ic ious prosecution. T h e true d e e p structure of malic ious prosecut ion exists wi th in t h e Cause and Malice Elements. These tend to be the most difficult barriers to making out a cause of action, primarily because of vague and unhelpful judicial definitions. III. INITIATION OF PROCEEDINGS Although not strictly part of the Initiation Element, a threshold issue which must be considered is whether the Defendant may claim immunity from a malicious prosecution action. The question of immunitymay arise where the Defendant gave ev idence in the proceed ings brought against the Plaintiff or prepared reports or information for use in the proceedings. There is a general rule that witnesses are immune from civil proceedings for evidence given in legal proceedings.63 Tlie immunity extends to cover conduct, statements and reports made prior tc v'ae commencement of proceedings.64 The Plaintiff cannot sue for malicious prosecution if the cause of action is based solely on the conduct for which the Defendant claims immunity. However, if the Plaintiff can show that the conduct for which the Defendant claims immunity was merely one step in an abuse of process or 63 Cabasi v Vila [1940] 64 C.L.R. 130; Mamnan v Vibart [1963] 1 Q.B. 128. 64 Evans v London Hospital Medical College [1981] 1 All ER 715. of this element divides it intn t, „ m m 0 t i ° a ^alysis satisfy the Initiation Element Proceedings were initiated ("How Sub-Element") n c „ V . Element deals with the formal steps taken to i « " " " issuing of the proceed' ^ " >he achral described a ^ T l . * - « - * ^ZT* *«,-.„mepossibie « Criminal proceedings were initiated by swearing an information laying charges or similar H i , „k,„- , . ' Element. ' " » H » " of claim or similar. This obviously satisfies the How Sub-Element. « ^ ^ C a t ' 0 n W a S m a ( ' e t 0 a Ju^'c'al authority. e.g. applying to a judse * — » , o a m a . s , r a , e for a s l r l ^oy v Prior [1971] A.(V 47Q ' Lopes J. warrant 6 3 o r t o a cour t f o r a war ran t of execution.6 9 Th is sa t isf ies the H o w Sub-Element . These sorts of ex parte p roceed ings a r e not , by their na ture , capab le of a f avourab le te rminat ion . Sat isfying the Te rmina t ion E l e m e n t is d ispensed wi th in this instance.7 0 (d) N o f o r m a l s teps to issue proceedings were taken and no legal proceedings w e r e actual ly issued. If the law was never actually set in m o t i o n a n d p r o c e e d i n g s d i d n o t issue against the Plaintiff, then the H o w Sub-E lemen t is no t sa t is f ied. n (2) W h o i n i t i a t e d t h e p r o c e e d i n g s ( " W h o Sub-Element"). There are two basic scenar ios f o r this sub-e lement : ( a ) T h e D e f e n d a n t s e t t h e l a w i n motion against the Plaintiff. This clearly sa t i s f ies the W h o Sub-Element . tgj A person or persons other than the Defendant set the law in motion aga ins t the Plaintiff e.g. a p e r s o n related information to a police off icer who, act ing on the i n f o r m a t i o n prosecuted.72 It is, therefore, necessary t o f ind a causal connec t ion or relat ionship between the D e f e n d a n t and the o the r person (s) who set the law in motion. Analysis of cases h a s revea led the following scenarios, representing causal connect ions or relat ionships r e c o g n i l ^ b y courts: 68 Afa/ife'gg v Nickerson [1927] 2 W.W.R. 623. 69 Chur&iill v Siggers (1854) 3 EL. & BL. 927. 7° Churchill v diggers (1854) 3 EL. & BL. 927; 118 E.R. 1389; Gilding v Eyre (1861) 10 C.B. (N.S.) 592; 142 E.R. 584; Manning v Nickerson [1927] 2 W.W.R. 623; Richards v Joynl (1910) 1 O.W.N. 1065. 71 Canmar Grain Inc. v Ferguson (1987), 55 Sask. R. 52. 72 Gcllv Davis [1924] V.L.R. 315; Walters v Pacific Delivery Service (1964) 45 D.L.R. (2d) 638. (i) The Defendant related information to a judicial or ministerial officer. If the Defendant knowingly related false information t o t h e o f f i c e r , t h e W h o S u b - E l e m e n t i s s a t i s f i e d . 7 3 H o w e v e r , i f t h e D e f e n d a n t m e r e l y g a v e a c a n d i d a c c o u n t o f t h e D e f e n d a n t ' s k n o w l e d g e o f t h e s i t u a t i o n t o t h e officer,74 t h e W h o S u b - E l e m e n t i s n o t s a t i s f i e d . ( i i ) T h e D e f e n d a n t w a s i n i t i a l l y u n a w a r e o f t h e p r o c e e d i n g s , b u t later became aware. The Defendant's potential liability for the proceedings commences on becoming aware of the proceedings.75 If the Defendant becomes involved with, c o n t i n u e s , a d o p t s o r r a t i f i e s the prosecution, then the Defendant may be considered to be the prosecutor and the Who Sub-Element is satisfied.76 This sub-element is not satisfied if the Defendant refuses to play any part in or condone the prosecution.77 ( i i i ) T h e r e m a i n d e r o f t h e s c e n a r i o s a r e concerned with issues of agency, authority and the role played by the Defendant ia the p r o s e c u t i o n . T h e r e i s s o m e o v e r l a p b e t w e e n t h e s e scenarios, Gell v Davis [1924] V. I R . 315; Tewari v Singh [1908] 24 T.L.R. 884; Walters v Pacific Delivery Servicc (1964) 45 D.L.Rj2d) (338, The relating of false information will also satisfy the element of lack of reasonable and probable cause, on the basis of the analysis under the Cause Element. Berman v Jenson (1990) 77 Sask. R. 161; Cohen v Morgan (1825) 6 D. & R. 8; Danby v Beardsley [1880] 43 L.T. 603; Malz v Rosen (1966), 1 W.L.R. 1008; Meyer v General Exchange Insur' Corp. [1962] S.C.R. 193; Wilson Roofing Ltd v Wayne (1985), 74 N.B.R. (2d) 26. Weston v Beeman (1858) 27 U Ex. 57. Sandison v Rybiak (1974), 1 O.R. (2d) 74; Weston v Beeman (1858) 27 U Ex. 57; Wilson v Winnipeg (1887), 4 Man. R. 193. Moon v Towers (I860) 141 E.R. 1306. 64 but this is preferable to possibly omitting a re levant relationship. T h e scenarios are: (A) The Defendan t author ized or ordered ano the r pe rson to initiate t h e proceedings,78 (B) T h e Defendan t cont inued, adopted or ra t i f ied proceedings which the Defendan t did not initiate, bu t of which the Defendant was aware.79 This is similar to scenario (2)(b)(ii) a b o v e , but allows for the situation where the Defendan t was aware of the initiation of the proceedings. (C) The Defendan t advised or assisted with the proceedings,80 (D) The Defendant asserted that he was the prosecutor.81 (E) The Defendant caused or arranged for other persons to initiate the proceedings.82 78 Carpenter v MacDonald (1979) 21 O.R. (2d) 165; Lamb v Benoit, Forget & Nadeau [1959] S.C.R. 32; Leibo v D. Buckman Ltd [1952] 2 All E.R. 1057; McRae v McLaughlin Motor Car Co (1926), 1 W.W.R 161; Perry v Fried (1973), 32 D.L.R. (3d) 589; Pickles v Ban [1949] S.C.R. 239; Renton v Gallagher (1909), 19 Man. R. 478 (CA) ; Sandison v Rybiak (1974), 1 O.R. (2d) 74. 79 Landry v Bathurst Lumber Co. (1916), 44 N.B.R. 374; Smith v Laeadena [1924] 1 W.W.R. 36; Wilson v Winnipeg (1887), 4 Man. R. 193. • 80 Carpenter v MacDonald (1979) 21 O.R. (2d) 165; Commonwealth LAS v Brain (1935) 53 C.L.R. 343; Sandison v Rybiak (1974), 1 O.R. (2d) 74. 81 Clements v'Ohrly (1848) 2 CAR. & K. 685; 175 E.R. 287. 82 Lamb v Benoit, Forget & Nadeau [1959] S.C.R. 321; PenyvFried (1973), 32 D.L.R. (3d) 589. If none of the above can«i ™ Proceedings and the Who Sub FIP m • 'onfcnuation of wno oub-Element is not satisfied.83 / K TERMINA TION OF PROCEEDINGS 6 T e r m i n a t i 0 n Element requires the Plaintiff , proceedings terminated in the PJ a i n t i f f , f ° * * * t h a t capable of so determining84 There ^ * « Element: " ^ ^ ^ ° f i n f - n c e for the Terminatiol « The merits or substantive issues of V - — 'mo recos„ls„CB t 0 tee„ , h e m ' m w a s * (b) T h e j u d i c i a l a u t h o r i t y f a i l e d o r r e f u s e d t o m a k e a d e t e r m i n a t i o n of t h e P l a i n t i f f s g u i l t o r i n n o c e n c e . I n t h e s e c i r c u m s t a n c e s , t h e P l a i n t i f f c a n n o t c l a i m a f a v o u r a b l e t e r m i n a t i o n o f t h e p r o c e e d i n g s . 8 7 P e r h a p s m a n d a m u s p r o c e e d i n g s should be commenced to compel a decision. 66 (c\ Thp Plaintiff was rnnvirt(>rl of a lesser charge. The Plaintiff may still s u e i n m a l i c i o u s p r o s e c u t i o n for the more serious charge of which he was acquitted.88 Of course, the Plaintiff may well face difficulties p r o v i n g l a c k o f reasonable and probable cause for the prosecution if a c o n v i c t i o n w a s s e c u r e d , e v e n though on a lesser charge. ( d ) T h e P l a i n t i f f w a s subjected to a multitude of proceedings or charges, only some of which terminated in the Plaintiffs favour. The Plaintiff mav still sue in malicious prosecution for those proceedings which t e r m i n a t e d favourably.89 ( e ) T h e P l a i n t i f f w a s a c q u i t t e d or found not liable. The crux of this scenario is that the Plaintiff need not prove a finding of innocence; all that is required is the absence of a finding of guilt or liability. Thus, as Fleming notes, the acquittal of the Plaintiff may have occurred as a result of "some defect in the indictment" or the Plaintiffs conviction may have been "quashed on appeal for some irregularity of procedure."90 87; 89 90 Demand v Forrester (1908) 18 .Man. R. 444. Boaler v Holder (1887) 3 T.L.R. 546. Banks v Bliefernich (1988), 24 B.C.L.R. (2d) 397. Supra, note 58, p. 584, citing Wicks v Fentham (1791) 4 T.R. 247; 100 E.R/1000 and Commonwealth LAS v Smith (1938) 59 C.L.R. 527 at 538. n n n rt u u ,u u D a n o L 'I.U l (2) The merits or substantive issues of the proceedings were not conclusively heard or determined. The obvious question is why did this not happen. I h a v e i d e n t i f i e d f o u r p o s s i b l e s c e n a r i o s : ( a ) T h e p r o c e e d i n g s w e r e d i s c o n t i n u e d , s t a y e d , withdrawn o r s i m i l a r . A cessation of the proceedings in this manner satisfies the Termination E l e m e n t , if the p r o c e e d i n g s c a n n o t b e r e c o m m e n c e d w i t h o u t s t a r t i n g afresh.91 (b) A c o m p r o m i s e w a s e n t e r e d i n t o . T h e e f f e c t o f a c o m p r o m i s e or n e g o t i a t e d s e t t l e m e n t i s n o t c l e a r . Authority i s s c a r c e a n d c o n f l i c t i n g . 9 2 O n t h i s i s s u e , F l e m i n g s t a t e s : " O n t h e o n e h a n d , i t i s a r g u e d t h a t all that is required is a t e r m i n a t i o n of p r o c e e d i n g s w h i c h f a l l s h o r t of establishing tl.j g u i l t o f t h e a c c u s e d B u t t h e r e i s a l s o much cogency in the contrary view that, having voluntarily consented to an inconclusive termination, it does not lie in his mouth to assert that the proceedings have ended in his favour."93 Given the great proportion of proceedings which settle before trial, if the former view is adopted the terms of sp'.„ement might be defeated by malicious prosecution proceedings, and malicious prosecution would become a much abused action. On this basis, I believe the latter view is clearly to be preferred. Romegialli v Marceau (.1963) 42 D.L.R. (2d) 481. . Baxter v Cordon Ironsides (1907) 13 O.L.R. 598; Cockbum v Kettle (1913) 12 D.L.R. 512. Contra Craig v Hassel (1843) 4 Q.B. 481; 114 E.R. 980. Supra, note 58, p. 584, citing Baxter v Gordon Ironsides (1907) 13 O.L.R. 598 and Craig v Hassel (1843) 4 Q.B. 481; 114 E.R. 980. '. * ' ' • . " * ' - , ' nit n n ~f r i n u U u u 0" t ; i u ' ' „ 68 (c) A wri t of habeas corpus was obtained. This does n o t amoun t t o a termination of proceedings or a de te rmina t ion of thei r merits.,94 T h e Termina t ion E l e m e n t is n o t satisfied in this instance. (d) T h e p roceed ings are still pend ing g a i n s t the Plaintiff. P roceed ings which a re still pend ing cannot b e cons idered to have te rmina ted favourably or, for that mat ter , in any other manner , 9 5 V. DAMAGES T h e r e a r e three types of d a m a g e upon which a n act ion in malicious p rosecu t ion may b e founded : (l)damage to reputa t ion; (2) physical damage to the person ; and (3) d a m a g e to property.96 D a m a g e s are a t large once loss under o n e of these heads /has b e e n proven.97 T h e m a n n e r in which courts t r ea t a c la im for d a m a g e s u n d e r any of these heads depends u p o n the type cf p roceed ings issued. Thus , except as no ted below, the re a re no ru les governing d a m a g e s per se in mal ic ious prosecut ion. E a c h claim for d a m a g e s m u s t be considered in the context of t he type of p roceed ings issued. T h e th ree kinds of damages are considered first, fo l lowed by t he type of p roceed ings which may b e issued and their effects on a claim fo r damages . McKinnon v McLaughlin Carnage Co (1904), 37 N.B.R. 3. But see Bouvy v Count de Courte (1901) 20 N.Z.L.R. 312 (obiter). Gilding v Eyre (1861) 10 CB (NS) 592 at 604; Parker v Langley (1713), 10 Mod.. 145, 209; 88 E.R. 667,697; Metz v Pellegrin [1990] B.CJ. No. 845; Metropolitan Bank Ltd v 1'ooley (1885) 10 App. Cas.210. 'Savile v Roberts (1698) 1 Ld Raym. 374; 91 E.R. 1147. e.g. Flame Bar-B-Q Ltd. v Hoar (1979), 106 D.L.R. (3d) 438 (N.B.CA.). 94 95 96 97 n n n n 'i f i '< u u u u "i D 1 r < i I 69 (1) T h e th ree kinds of damages , (a) D a m a g e to reputa t ion . T h e tes t is w h e t h e r t he p r o c e e d i n g s necessari ly a n d natural ly d e f a m e d or d a m a g e d t he P la in t i f f s reputa t ion . 9 8 Th i s tes t is app l i ed in t he form of an enquiry as to w h e t h e r t h e p r o c e e d i n g s may b e v iewed in a non-defamatory light so t ha t t he P la in t i f f s r epu ta t ion is n o t sullied. If such an in te rpre ta t ion is possible, an ac t ion will n o t lie.99 The MPC does n o t con ta in a n analysis of w h a t f ac tua l scenar ios cons t i tu te p r o c e e d i n g s t ha t a r e necessari ly a n d natural ly defamatory . Such a n analysis wou ld requ i re a n excurs ion into the law of d e f a m a t i o n , w h i c h I p r o p o s e to u n d e r t a k s in t he fu tu re . (b) Physical d a m a g e to the person. Th i s h e a d is, f o r the most part, c o n c e r n e d wi th cases w h e r e t he Plaint i f f was imprisoned,100 deta ined 1 0 1 o r sub jec t to the risk of imprisonment . 1 0 2 The i m p r i s o n m e n t o r r i sk cf i m p r i s o n m e n t m u s t have b e e n a direct result of the p rosecu t ion , n o t a m e r e ancil lary r i sk e.g. fo r fa i l ing to pay a fine.1 0 3 It is conceivable , i n o lder t imes , t ha t a p e r s o n migh t have s u f f e r e d s o m e sort of physical injury from a malicious prosecution e.g. flogging. Such a scenar io is unlikely today, although it has been Wiffen v Bailey & Romford U.D.C. [1915] 1K£. 600. Berry v British Transport Commission [1961] 1 (J.B. 149 (reversed on another ground [1962] 1 Q.B.306). e.g. Lamb v Benoit, Forget & Nadeau [1959] S.C.R. 321. e.g. 'Perry v Woodwards Ltd (1929) 41 B.C.R. 404. . e.g. Reid v Webster (1967) 59 D.L.R. (2d) 189. Sec Fleming, supra, note 58, p. 580; Houghton v Oakley (1900) 21 L.R. (N.S.W.) 26; Wiffen v Bailey & Romford U.D.C. [1915] 1 K.B. 600. But sec Reid v Webster (1967) 59 D.L.R. (2d) 189. n n n n r j , / t i u u u u c*'i '< C suggested that a person could sue for physical h a r m arising from a n adverse emot ional react ion to a prosecution,104 (c) D a m a g e to property. This head deals with the scenario whe re the Plaintiff suffered financial loss as a result of the proceedings. (2) T h e type of proceedings issued. (a) Cr iminal proceedings, search warrants,105 warrants of execution11*5 and warrants of arrest.107 F a claim can b e b rought under one of the th ree heads of damages, there are no rules operat ing to limit recovery for these types of proceedings. T h e costs of defending cr iminal proceedings may b e claimed,108 (b) Civil proceedings. With some exceptions, courts have b e e n very reluctant to al low malicious prosecut ion act ions for civil proceedings. (i) Winding u p and bankruptcy proceedings. Courts have held tha t bankruptcy proceedings against a trader1 0 9 and winding up proceedings against a trading company110 damage reputation 104 105 106 108 109 110 Fridman, G.H.L., The Law of Torts in Canada, Vol. 2, p. 246. Elsee v Smith [1822] 1D. & R. 97; Manning v Nickerson [1927] 2 W.W.R. 623; Utting v Bemey (1888), 5 T.L.R. 39. Churchill vSiggers (1854) 3EL.&EL.927; 118E.R. 1389; GildingvEyre(1861) 10C.B. (N.S.) 592;Landry v Batliurst Lumber Co. (1916), 44 N.B.R. 374. Dunshea v Ryun (1901) 1 S.R. (N.S.W.) ^63; Munroe v Abbott (1876), 39 U.C.Q.B. 78; Roy v Prior [1971] A.C. 470; Vardini v McLennan (1932), 5 M.P.R. 3S7. Berry v British Transport Commission [1962] 1 Q.B. 306. Farley v Danks (1855) 4 E. & B. 493; Flame Bar-B-Q Ltd. v Hoar (1979), 106 D.L.R. (3d) 438 (N.B.CA.); Johnson v Eemerson & Sparrow (1871) -L.R. 6 Ex. 329; Wyatt v Palmer [1899] 2 Q.B. 106. Quartz Hill v Eyre [1883] 11 Q.B.D. 674. 71 and credit. In these, circumstances, financial loss may also be r e c o v e r e d . 1 1 1 W h e t h e r a n o n - t r a d e r or a non-trading company m a y s u e i s n o t c l e a r . In the c a s e of bankruptcy proceedings, it h a s b e e n s u g g e s t e d that since a non-trader may now be sued in b a n k r u p t c y , a n a c t i o n in malicious prosecution ought to be available.112 It seems quite feasible today that companies other than trading companies e.g. a holding company, may suffer damage to credit and reputation from malicious winding up proceedings and, in principle, ought to be f.ible to sue for malicious prosecution. (ii) Civil proceedings where the court did not have power to award the successful party any costs. This is a very narrow exception with only one case on point. The Plaintiff, in that case, recovered damages for financial loss (legal costs) arising from malicious debt recovery proceedings where the court in question had no power to award any costs to the Plaintiff.113 (iii) Civil proceedings other than (i) or (ii). Courts have repeatedly denied that civil proceedings, other than bankruptcy and winding up proceedings, may damage a Plaintiffs reputation. This denial has been justified on such spurious grounds as: "in civil proceedings the poison and antidote are presented simultaneously. The publicity of the 111 112 113 Wyatt v Palmer [1899] 2 Q.B. 106. Wyatt v Palmer [1899] 2 Q.B. 106. Coleman v Buckingham's Ltd [1964] N.S.W.R. 363. proceedings is accompanied by the refutation of the. unfounded charge."114; and "publication of the proceedings in the action, may do a man an injury; but the bringing of the action is of itself no injury to him. When the action is tried in public, his fair fame will be cleared, if it deserves to be cleared; if the action is not tried, his fair fame cannot be assailed in any way by the bringing of the action."115 This justification is of doubtful validity because, as Winfield & Jolowicz suggest, "exactly the same may be said of the successful defence of a criminal charge."116 In addition, the publicity of civil proceedings e.g. a paternity suit, may cause serious injury to a person's reputation. To suggest otherwise* or that a favourable verdict will undo the harm, is a completely artificial account of human nature.117 The extra costs of a civil action, over and above those awarded by the court, are not recoverable because court-awarded costs in civil proceedings are meant to represent all the costs which the Plaintiff deserved,118 and are thus not recognized as damages. These extra costs may often amount to a substantial sum, so this view, for practical purposes, is a fiction which should have been abandoned long ago.119 One exceptional case allowed a malicious prosecution action for the malicious obtaining of an injunction which prevented Wiffen v Bailey & Romford U.D.C. [1915] 1 K.B. 600 at 607. Quartz Hill v Eyre [1883] 11 Q.B.D. 674 at 689. Supra, note 104, p. 552. ' See Fleming's comments in this regard, supra, note 58, p. 581. Quartz Hill v Eyre [1883] 11 Q.B.D. 674. See Fleming, supra, note 58, p. 581; Winfield & Jolowicz, supra, note 58 p. 552. t h e P l a i n t i f f f r o m e n t e r i n g h i s p r o p e r t y . T h e P l a i n t i f f r e c o v e r e d d a m a g e s f o r f i n a n c i a l loss, including lost income f r o m t h e p r o p e r t y . 1 2 0 In a r e c e n t unreported Ontario High Court case, the c o u r t r e f u s e d a n a p p l i c a t i o n t o strike out a s t a t e m e n t o f c l a i m f o r a malicious prosecution action based on d i s c i p l i n a r y p r o c e e d i n g s b e f o r e a professional board where the P l a i n t i f f s u f f e r e d d a m a g e t o his professional reputation and incurred costs for legal representation before the board.121 However, in a recent unreported Supreme Court of British Columbia case, an application to strike out a statement of claim was successful where the Plaintiffs action in malicious prosecution was based on civil proceedings initiated by a trustee in bankruptcy seeking to set aside a mortgage pursuant to the Fraudulent Conveyance Act122 and/or the Fraudulent Preference Act.123 The Plaintiff mortgagor and mortgagee claimed the action damaged their reputations.124 There appear to be no good reasons of principle or practice why malicious prosecution actions should not be allowed for civil proceedings, as they are in the United States.125 The refusal of courts to entertain such actions, unfortunately, appears to be based on a commercially unrealistic view of legal Jervios Sulphates Ltd v Pelrocarb (1974) 5 A.L.R.l; Stoffman v Ontario Veterinary Assn. [1990] OJ. No. 1151, Action No. 542/85, Unreported (Ont.H.C.). • - ' •••..••...;•:.••• R.S.B.C. Chap. 142. R.S.B.C. Chap. 143. MetzvPellegrin [1990] B.CJ. No. 845, Unreported, 23rd March, 1990, (B.C. S.C.). Prosser, Prosser & Keeton on Torts, § 120. ' - "'if • • - - - -Jf ,v : . -,< „ v-j , '- --- " " . V J K - - < * " • • . .-,: -'S'ti ' - - '' ' •-•--'V- " ' r - • ' • • . . • - - •.->--•"••.V" 74 c o s t s a n d a n t i q u a t e d n o t i o n s a b o u t t h e p u b l i c p e r c e p t i o n of '""'•••• civi l p r o c e e d i n g s . T h e a b o v e d i s c u s s i o n s h o w s how, p r i m a r i l y f o r h i s t o r i c a l r e a s o n s , t h e r u l e s g o v e r n i n g t h e D a m a g e s E l e m e n t o f m a l i c i o u s p r o s e c u t i o n d o n o t a p p l y a c r o s s t h e b o a r d t o a l l m a l i c i o u s p r o s e c u t i o n claims, but must be considered in the context of t h e t y p e o f p r o c e e d i n g s i s s u e d . VI. LACK OF REASONABLE AND PROBABLE CAUSE This is the most difficult element to prove in malicious prosecution because, a s i d e f r o m t h e d i f f i c u l t task of proving a negative, it is imprecise and abstract in its f o r m u l a t i o n . T h e u s e of the words " r e a s o n a b l e " a n d "probable" is a redundancy and merely a relic from old styles of pleadings.126 Judicial definitions have not shed much light on the meaning of these words: "...an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent .and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed."127 ' Authors have commented on the difficulties associated with analyzing reasonable and probable cause. Street states "it is impossible to enumerate all the factors which may be relevant",128 and Fleming writes "we lack precise and universal criteria Winfield & Jolowicz, supra, note 58, p. 547. Hicks v Faulkner (1878) 8 Q.B.D. 167 at 171 as approved by the House of Lords in Hemiman v Smith [1938] A.C. 305 at 316. Brazier, M.B., Street on Torts, 8th ed, 1988, p. 437. 126 127 128 n n n n 3 1 ,1 •mm i g g t t i i R l l g S i S i i i i i r t i l u u u u L I I I by which to measure the degree of caut ion and prudence that a reasonable pe rson should observe in the evaluat ion of infinitely variable incriminatingdata."1 2 9 T h e d e e p s t r u c t u r e o r underlying fact pattern operating in the Cause E l e m e n t concerns the acquisi t ion of in format ion abou t the p r o s e c u t i o a I t is abou t t h e m a n n e r i n w h i c h t h e p r o s e c u t o r and other parties involved in the prosecution i n f o r m e d t h e m s e l v e s of t he c i rcumstances of the case against the Plaintiff and the m a n n e r i n w h i c h t h e p r o s e c u t i o n w a s conduc ted . Of particular importance is w h e t h e r t h e D e f e n d a n t sought legal advice and, if so, how the advice was obtained a n d a c t e d u p o n . In g e n e r a l t e rms , if t h e r e w a s a thorough investigation of the c i r c u m s t a n c e s of t he case aga in s t t he Plaintiff and the prosecution was properly c o n d u c t e d , t h e r e w a s r e a s o n a b l e a n d p r o b a b l e cause for the prosecution. T h e f a c t u a l s c e n a r i o s of the deep structure are: (1 ) T h e D e f e n d a n t s o u g h t or received advice about the proceedings. This is g o o d , b u t n o t i r r e f u t a b l e , evidence of reasonable and probable cause for th' prosecution.130 T h e manner in which the advice was obtained and acted u p o n m u s t b e examined. This may be divided into five factual scenarios, w h i c h m a y a r i se b e f o r e or during the proceedings: : . ( a ) T h e D e f e n d a n t withheld or concealed relevant information from the advisor. In these circumstances, courts have held that there is no reasonable and probable cause for a prosecution.131 129 Supra, note 58, p. 586, citing Hemiman v Smith [1938] A.C. 305 at 317. 130 Glinski v Mclver [1962] A.C. 726 at 745; Reid v Webster (1967) 59 D.L.R. (2d) 189 at 200. 131 Mcintosh v Wilson (1920), 19 O.W.N. 256; Reid v Webster (1967) 59 D.L.R. (2d) 189; Smith v Lacadena [1924] 1 W.W.R. 36; Vardini i- McLennan (1932), 5 M.P.R. 387. 76 (b) T h e advisorwas not exper iencedor qualified to advise in the area. In these circumstances, the fact that advice was rece ived d o e s not provide reasonable and probable cause for a prosecution.1 3 2 (c ) T h e advice was plainly wrong. Advice which is obviously wrong does not provide reasonable and probable cause for a prosecution.'3 3 (d) T h e advice was not followed. T h e fact that advice was obtained b e c o m e s irrelevant and does not afford reasonable and probable cause for a prosecution."' (e ) N o n e of (a) to (d) apply. T h e advice has probably b e e n properly obtained and acted upon. This a f fords a shield for the prosecutor, amount ing to reasonable and probable i wise for the prosecut ion 1 3 S (2) T h e D e f e n d a n t fabricated evidence. The prosecution was undertaken with false information for which the Defendant was responsible, resulting in a lack of reasonable and probable cause for the prosecution.1 3 6 This is probably the best possible sv idence of lack of reasonable and probable cause. A s stated above under scenario (2) (b) (i) of the Initiation Element , the relating 132 Assheton v Merrett [1928] S-A.S.R. 11; Abbot v Refuge Assurance Co. [1962] 1 Q.B. 432 at 454. 133 Wilson 7 Winnipeg (1887) 4 Man. R . 193. Carpenters MacDonald X(197S) 210.E_(2d) 165; Durand v Prejet [1932] 2 W.W.R. 545; Pickles v Barr [1949] S.C.R. 239. 135 Glinski v Mclver [1962] A.C. 726; McMullen v Wetlauffer (1915), 33 O.L.R. 177; Meyer v General Exchange Insur. Corp. [1962] S.C.R. 193; Renton v Gallagher (1909), 19 Man. R. 478 (C.A.); Riches v D.P.P. [1973] 1 W.L.R. 1019. But see Barber v Simonds 11943] 3 D.L.R. 285. 136 Commonwealth LAS v Brain (1935) 53 C.L.R. 343; Kinloch v Tarasoff (1984) 33 Sask. R. 66; Roberts v Buster's Auto Towing Service [1977] 4 W.W.R. 428; Tewari v Singh [1908] 24 T.L.R. 884; Walters v Pacific Delivery Service (1964) 45 D.L.R. 638. 77 of fa l se information to a judicial or ministerial of f icer fal ls within the ambit of this scenario. (3) T h e Defendant concealed, ignored or wilfully disregarded relevant evidence. In this scenario, the prosecut ion has b e e n conducted with incomplete information. A s the Defendant is responsible for the incomplete information, there is no reasonable and probable cause for the prosecution237 This scenario does not imply that the Plaintiff must have actively sought an explanat ion or information from the Defendant . 1 3 8 T h e concern that the Defendant might have b e e n warned of the impending prosecution and taken flight or destroyed evidence is of paramount importance in this instance.115 However, the Plaintiff should not ignore an explanat ion o f fered by the Defendant.1 4 0 (4) T h e D e f e n d a n t a c t cd carelessly in the investigation of the circumstances of the e a s e o r the conduc t of the proceedings against the Plaintiff. Such ca re l e s s b e h a v i o u r resul ts in lack of reasonable and probable cause.1 4 1 (5 ) Scena r io s ( 1 ) to (4) do not apply. In these circumstances, it is likely that the D e f e n d a n t p rope r ly investigated and /or conducted the proceedings brought Hewer v Paquette [1990] B.CJ. No. 1549; Lamb v Benoit, Forget & Nadeau [1959] S.C.R. 321\ Pickles v Ikirr [1949] S.C.R.239;Rcardon v Simmons (1983)41 Nfld.&P.E.I.R 213; Sandison v Rybiak (1974), lO .R . (2<l) 74; Smith via caderia [1924] / W.W.R. 36; Tempest v Snowdcn [1952] 1 All E.R. 1; Vardini v McLennan (1932), 5 M.P.R. 387; Wersoff v Commissioner of Police [1978] 3 All E.R. 540; Wyattv Palmer [1899] 2 Q.B. 106. Renton i' Gallagher (1909), 19 Man. R. 478. Hemiman v Smith [1938] A.C. 305 at 319. • Jenner v Harbison (1879) 5 V.L.R. (L.) 111. Clements v Ohrfy (1848) 2 CAR. & K. 685; 175 E.R. 287; Manning v Nickerson [1927] 2 W.W.R. 623; Perry v Woodwards Ltd (1929) 41 B.C.R. 404; Sandison v Rybiak (1974), 1 O.R. (2d) 74; Walters v Pacific Delivery Service (1964) 45 D.L.R. 638. jn-n n n <3 t i n <U U'U-U 1,0 'I C u against the Plaintiff. The cases show that this provides the Defendant v i t h reasonable and probable cause for the prosecution.1 4 2 Analyzing the Cause E lement i n terms of the above factual scenarios accounts for mal ic ious prosecut ion case law.143 VII. MALICE In malicious prosecution, the term malice has a wider meaning than the traditional meaning of spite or vindictiveness. It has been suggested that the term mal ice should b e replaced with the more meaningful term "improper purpose".144: A motive or purpose in bringing a prosecution other than a desire to further the course of justice, impartially enforce the law or similar constitutes malice. The element of mal ice is thus really an inquiry into the motive or purpose o f the D e f e n d a n t in prosecuting the Plaintiff. The deep structure approach to analyzing malice involves a consideration and enumeration of the factual scenarios which constitute proper and improper motives. The Malice Element may be satisfied by proving a dominant improper motive of the Plaintiff in prosecuting. However, a problem arises if the Plaintiffs motive is not identifiable. In this situation, malice may be inferred by showing that Abtath v North Eastern Railway (1883) 11 Q.B 440; Costain v Ryhorchuk (1987) 58 Sask. R. 81; Hemiman v Smith [1938] A.C. 305; Landry v Bathurst Lumber Co (1916), 44 N.B.R. 374; Raymond v Thomas (1920), 48 N.B.R. 101; Tims v John Lewis & Co. Ltd. [1951] 2 K.B. 459; Wright v Sharp [1S47] 176 L.T. 303. See Chapter V for test results. Fleming, supra, note 58, p. 590. 143 144 79 ..' the c ircumstancesof the case are such that the prosecut ion can only b e explained by attributing a malicious motive to the Plaintiff.w5 Courts inevitably tend to use evidence about the lack of reasonable and probable cause for the prosecution in this regard.146 The MPC currently displays a message to this effect if motive is not known. However, it should be possible to analyze this process of inference by way of a deep structure. I plan to identify the cases where malice was inferred in this manner and then examine the courts' findings about lack of reasonable and probable cause in terms of the deep structure explained earlier. I hope to identify a pattern where mal i ce is inferred from ccrtain d e e p structure factual scenarios about lack of reasonable and probable cause. This would allow the MPC to be - modi f i ed to deal w i t h the situation w h e n the motive of the Defendant is not known and to infer from the user's answers about reasonable and probable cause whether malice exists. • •• , ' • " I have identified four possible scenarios which represent the primary motivating interest of the Defendant in prosecuting the Plaintiff. These interests are: : . .'-•• ; (1) Financial or property e.g. recovery of a debt, acquisition of property. Courts - are loath for people to use criminal proceedings to recover civil debts and the like. They have repeatedly held prosecutions for such motives to be malicious.147 ;; Brown v Hawkes [1891] 2 Q.B. 718 at 722; Carpenter v MacDonald (1979) 21 O.R. (2d) 165 at 184; Hawker v Hillsburgh [1942] 2 W.W.R. 488 at 489. Sandison vRybiak (1974), 1 O.R. (2d) 74. • . Carpenter v MacDonald (1979) 21 O.R. (2d) 165; Clements v Ohrly (1848) 2 CAR. & K. 685; 175 E.R. 287;Leibo v D. Buckman Ltd. [1952] 2 All E.R, 1057; McRae v McLaughlin Motor Car Co (1926), 1 W.W.R. 161; Smith v Lacadena [1924] 1 W.W.R. 36; WyaCv Palmer [1899] 2 Q.B. 106. •••• ' ' 145 146 147 (2) Personal satisfaction other than furthering the course of justice e.g. hatred desire for revenge, desire to embarrass. Our legal sys tem demands that proceedings be undertaken impartially without any ulterior motive other than to enforce the law. Thus proceedings brought for personal motives are cons idered t o have b e e n instituted maliciously.148 (3) Strategic considerations e.g. to silence a person, dissuade legal action, implement a policy, discourage behaviour. Prosecutions for such motives have been held to be malicious.149 (4) A desire to enforce the law merely for the sake of doing so or to pave the way for further legal proceedings, and not for any of the ulterior motives listed in (1) to (3). This scenario contemplates a desire to bring an offender to justice, to issue further legal proceedings150 and similar altruistic and impartial approaches. These are the only acceptable motives or purposes for bringing legal proceedings.151 As with the Cause Element, the above structure accounts for malicious prosecut ion case law,152 Canada v Lukasik (1985), 37 Mta L.R. ;2d) 170; Perry v Woodwards Ltd (1929) 41 B.C.R. 404; Prochnau v Holowaty (1978), 7 A.R." 1.9; Reid v Webster (1967) 59 D.L.R. (2d) 189; Reardon v Simmons (1963) 41 Nfld. & P.E.I.R 213; Tedford v Nitch (1977), 13 O.R. (2d) 471; Vardini v McLennan (1932), 5 M.l'.R. 307. Commonwealth LAS v Brain (1935)53 C.L.R. 343 at 387; Hewer v Paquette [1990] B.CJ. No. 1549;Lamb v Benoit, Forget & Nadeau [1959] S.C.R. 321; Meeting v Grahame White Aviation Co (1919) 122 L.T. 44; Sandison v Rybiak (1974), 1 O.R. (2d) 74. Abbot v Refuge Assurance Co [1962] 1 Q.B. 432. But sec Manning v Nickerson [1927] 2 W.W.R. 623. MacNeil v Toronto Dominion Bank (1987), 51 Alta. L.R. (2d) 221; Wershoff v Commissioner of Police [1978] 3 All E.R. 540. Sec Chapter V for test results. 148 149 150 151 152 VIII. THE POLICIES AND RULES OF THE DEEP STRUCTURE OF THE TORT OF MALICIOUS PROSECUTION The tort of malicious prosecution is characterized by two conflicting goals: (1) To encourage people to use the legal system to enforce the law by protecting them from legal actions brought by those against whom the law is set in motion; and (2) To protect people from groundless and improper prosecutions. In malicious prosecution, goal (1) generally takes priority over goal (2). This is reflected in the safeguards built into the law such as: (1) the difficult task of proving a negative in terms of lack of reasonable and probable cause; (2) having to prove both malice and lack of reasonable and probable cause; and (3) removing the question of whether there was reasonable and probable cause from the jury and bringing it within the province of the judge. The jury decides on the existence of facts but the judge rules whether the facts amount to reasonable and probable cause. This is probably a device to prevent juries from awarding damages merely because a person has been prosecuted unsuccessfully. The deep structure and policies embedded in the tort of malicious prosecution which protect prosecutors and the legal system may thus be expressed in the following meta- rule: If there are reasonable grounds for invoking the process of law then motive is irrelevant. The heart of the tort of malicious prosecution is, therefore, contained in the malice element in that unsuccessful prosecutions remain unpunished, unless they are instituted for improper purposes. This allows people freedom and impunity to use the legal system, provided they do so for proper purposes. VIII. CONCLUSIONS Analyzing the tort of malicious prosecution by the deep structure approach has revealed consistent and predictable fact patterns which account for the case lav/ in the domain. It has also provided insights into the policies and principles governing the domain. Once the fact patterns were revealed, the task of building a legal expert system was greatly simplified. The difficulties associated with interpreting and representing doctrinal law for computational purposes were eliminated. Whilst I have demonstrated that frame-based knowledge representation and CBR have much to offer for the construction of legal expert systems, they cannot be implemented effectively without a more fundamental theory of legal reasoning which the deep structure approach provides. The MPC's frames and Databases (the source of the legal knowledge used in CBR processes) are both founded on the factual attributes derived from the deep structure approach. As a CBR system, the MPC illuminates the importance of, and its dependence on, the deep structure approach. The MPC is able to render expert advice without the aid of specific legal rules by using the factual attributes revealed by the deep structure approach as a theory of relevance to implement a mapping between its Databases, framebase and, most importantly, the facts of a real-life problem which a lawyer might try to solve with the MPC. For this must surely be the ultimate test of any legal expert system: whether it can be used productively by practicing lawyers who are far removed from the rarefied halls of academic research where, at least for the present, most legal expert systems are produced. CHAPTER V TESTING THE MALICIOUS PROSECUTION CONSULTANT I. METHOD The MPC's performance was evaluated by running consultations with the facts of ten decided cases to establish whether the MPC would produce the same results as in the cases. A lawyer with no knowledge of the structure of the MPC was asked to read the cases and run a consultation for each case. Eleven consultations were run because one case had two defendants which necessitated a separate consultation for each defendant. The MPC agreed with the decisions in ten out of eleven cases. A strong argument may be made that the one case where there was disagreement was wrongly decided by the court. The results of each consultation and the cases retrieved were recorded and are set out below. The ten cases were selected from the MPC's Cases Database of 144 cases. Each case was removed from the Cases Database before running a consultation so the MPC could not use the case to reach its conclusions. At the end of each consultation the case tested was reinstated in the Cases Database. Only those cases with malice and lack of reasonable and probable cause issues were eligible for selection. The cases were selected at random other than this initial screening. Since lack of reasonable and probable cause and malice are the most difficult elements to prove in a malicious prosecution action, it was thought, that this approach would present the MPC with a proper challenge. In addition, these two 85 elements are the last of the five elements required to be proved so the probability was quite high that most, if not all, of the first three elements would be present in the selected cases. A problem with this method of testing is the possibility of removing a case which is the only case in the MPC's Cases Database on a particular point of law. Since the MPC is a CBR which draws its conclusions solely on the basis of the cases in its Databases, removing such a significant case would almost certainly cause the MPC to give incorrect advice. Fortunately no such cases were selected for the testing. II. RESULTS CASE1 Canada v Lukasik (1985) 37 Alta L.R. (2d) 170 Alberta Court of Queen's Bench. The Defendant falsely accused the Plaintiff of rape causing the Plaintiff to be arrested and charged. The charges were dropped a f t e r further investigation by the police. The court found that the Plaintiff, having lied to the police, had no reasonable and probable cause for the p r o s e c u t i o n and acted maliciously by instituting the proceedings for improper personal motives. The MPC reached the same conclusions. 86 CASE 2 ' Carpenter vMacDonaid (1979) 21 O.R. (2d) 165 Sudbury District Court The Plaintiff innkeeper seized the property of a guest for unpaid rent. The Defendant policemen attended and, initially under the impression that the matter came under the Landlord and Tenant Act, laid breaking and entering and possession charges against the Plaintiff. Despite receiving advice from the Police Department that the charges were unfounded, they persisted with the prosecution and the charges were dismissed. The court held for Plaintiff finding that the Defendant's failure to heed the advice of their own department meant they had no reasonable and probable cause for the prosecution. The court found malice because the primary motive of the Defendants in prosecuting was to recover the guest's property. The MPC reached the same conclusions. CASE 3 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 C.L.R. 343 High Court of Australia The Defendant company caused the police to lay charges of conspiracy against the Plaintiff who was a former officer of the company. The Defendant misrepresented the facts of the cas>; to the police so the court held there was no reasonable and probable cause. The Plaintiff was involved in a struggle to acquire control of the Defendant which was the primary motive of the Plaintiff in causing the Plaintiff to be prosecuted. The court found malice on these facts, thereby finding for the Plaintiff." The MPC reached the same conclusions. CASE 4 Costain v Ryhorchuk (1987) 58 Sask. R. 81 Saskatchewan Court of Queen's Bench The Plaintiff was arrested by the Defendant policemen for impaired driving after his car appeared to travel of control and the Defendants observed that he smelt of alcohol and walked unsteadily. The court held for the Defendants finding that there was ample evidence to warrant laying the charge. The MPC agreed with the court that lack of reasonable and probable cause was not established. CASE 5 Flame Bar-B-Q Ltd v Hoar (1979), 106 D.L.R. (3d) 438 New Brunswick Court of Appeal The Defendant instituted bankruptcy proceedings against the Plaintiff company, knowing that the Plaintiff was not insolvent, in order to induce the Plaintiff to pay the Defendant money or to give the Defendant shares in the Plaintiff. The court held for the Plaintiff. The court characterized the cause of action in this case as "abuse of process". This case is-used in the MPC because the court analyzed the case in terms identical to those relevant to a malicious prosecution action, paying special attention to lack of reasonable and probable cause and malice. In addition, the case is one of the few cases concerning the malicious institution of bankruptcy proceedings so it is useful to include it in the MPC. The MPC found that a cause of action in malicious prosecution was available and cited the authority of Quartz Hill v Eyre15,3 on which the court relied in finding for ihe 153 [1883] 11 Q.B.D.674. Plaintiff in abuse of process. It is difficult to understand from the report why the statement of claim pleaded abuse of process rather than malicious prosecution when it appears on the facts that a good cause of action in malicious prosecution could have been made out. CASE 6 Glinski v Mclver (1962) A.C. 726 House of Lords The Defendant detec tive charged the Plaintiff with conspiracy to defraud after legal advice was obtained from a solicitor and counsel. There was no conclusive evidence of a motive other than setting the law in motion. The court held for the defendant finding the manner in which the Defendant sought advice provided reasonable and probable cause for the prosecution. The MPC detected conflicting lines of authority on the issue of lack of reasonable and probable cause. The MPC preferred the line of authority which held that the because the defendant had sought and acted upon reputable and competent legal advice in bringing the proceedings against the plaintiff, the defendant had reasonable and probable cause for the prosecution. This also was the opinion of the House of Lords. The primary supporting cases cited by the MPC were two Supreme Court of Canada decisions in Meyer v General Exchange Insurance Co154 and Renton v Gallagher,155 a decision of the Privy Council in Corea v Peiris156 and a decision of the British Columbia Court of Appeal in Leighton v Hood & Henry.151 The MPC found only one conflicting case, Barber v Simmonds,158 a decision of the Ontario Court of Appeal which it may be argued is wrongly decided. In that case, 154 [1962] S.C.R. 193. 155 (1909), 19 Man. R. 478. 156 [1909] A.C. 549. 157 [1946] 2 D.L.R. 144. 158 [1943] 3 D.L.R. 285. the Defendant, who was portrayed by the court as a simple fellow, sought the advice of a local policeman, who was the most qualified person available, about how to recover an outboard motor from the Plaintiff. The Defendant had lent the motor to the Plaintiff and there was a subsequent dispute about the term of the loan. The policeman advised the Defendant to lay a charge of theft which the Defendant proceeded to do, although not really understanding the consequences of this action. Initiating a prosecution to recover property is clearly a malicious motive, but it is difficult to see how lack of reasonable and probable cause can be found when the defendant took all reasonable steps possible to investigate the proceedings. No cases have been found where a person who properly obtains and acts on advice about proceedings has been held not to have reasonable and probable cause for the proceedings. CASE 7 Lamb v Benoit, Forget & Nadeau [1959] S.C.R. 321 Supreme Court of Canada The Plaintiff, a Jehovah's Witness, was arrested by the Defendant policeman for distributing a seditious pamphlet when there was no evidence whatsoever to that effect. She was detained over the weekend and then offered her freedom in exchange for releasing the Defendant from liability for her detention. When she refused to release the Defendant, criminal charges were laid against her. The court held for the Plaintiff finding that the Defendant knew full well that the charges were not warranted and there was no reasonable and probable cause. The court found the charges were laid from a desire to protect the Defendant from the consequences of his actions, thereby being a malicious motive. The MPC reached the same conclusion. CASE 8 Manning 7 Nickerson [1927] 2 W.W.R. 623 British Columbia Court of Appeal The Defendant policeman obtained a search warrant to search the Plaintiffs home for liquor solely on the basis of an anonymous telephone tip-off without conducting any further investigation. The motive of the Defendant was to initiate legal proceedings if liquor was found. No liquor was found. The court held for the Plaintiff. The MPC, as did the court, found there was lack of reasonable and probable cause based on the carelessness of the policeman's investigation of the complaint. i However, on the element of malice, the MPC found two conflicting lines of authority and preferred the line which held that initiating proceedings with a view to further proceedings is a proper motive, thereby finding the policeman not to be liable. The cases in this line of authority included an earlier decision of the Supreme Court of Canada in Renton v Gallagher159 and two later decisions of the British Columbia Court of Appeal in Waiters v Pacific Delivery Service et al160 and Leighton v Hood & Henry.161 In the Manning case, the only identifiable motive of the Defendant was to initiate further legal proceedings, but the court nevertheless found malice. This decision must be regarded as doubtful in light of the weight of authority against it, particularly the very similar Watters case where a policeman who acted carelessly in an investigation (thus lacking reasonable and probable cause) was held not to be liable in malicious prosecution because his only motive in prosecuting was to enforce the law. The authority found by the MPG favouring the Manning decision consisted of only one case, Wilson v Winnipeg, an 1887 decision of 159 160 161 (1909), 19 Man. R.478. (1964) 45 D.L.R. 638 [1946] 2 D.L.R. 144. the Manitoba Court of Queen's Bench (in Appeal).162 In that case the jury, in the absence of an express motive, inferred malice from a finding of lack of reasonable and probable, cause and awarded the plaintiff damages of $3,000. Interestingly, on appeal the court cast doubt on the jury's inference of malice. The court considered the damages to be excessive in light of the tenuousness of the malice finding and offered the plaintiff a reduction of damages to $500 or a new trial. This offer clearly showed the court's dissatisfaction with the malice finding. Tlie plaintiff took the $500, thereby winning the action, at least on paper. However, in light of the appellate court's doubts about malice and the unusual enticement offered to the plaintiff, the correctness of the trial decision must be doubted. CASE 9 Roberts v Buster's Auto Towing Service [1977] 4 W.W.R. 428 British Columbia Supreme Court The Plaintiffs car was towed by the Defendant company. The Plaintiff retrieved his car and as he was leaving the Defendant's yard an employee of the Defendant allowed the gate to close on the Plaintiffs car thereby damaging the gate. The Defendant swore out an false information alleging that the Plaintiff had intentionally damaged the gate. The Plaintiff was charged with mischief and acquitted at trial. The court held for the Plaintiff finding that there was no reasonable cause for the prosecution because the employee had lied in swearing out the information. Malice was also found because the employee was primarily motivated by a desire to avoid blame for the damaged gate. The MPC reached the same conclusions. (1887) 4 Man. R. 193. CASE 10 Walters v Pacific Delivery Service Ltd, Sandover& Cotter (1964) 42 D.L.R. (2d) 661 - Supreme Court of British Columbia (1964) 45 D.L.R. (2d) 638 - British Columbia Court of Appeal The Defendant delivery man lied to the Defendant policeman about a supposed dishonoured cheque he had received from the Plaintiff. The policeman conducted a very sloppy investigation which led to the Plaintiffs arrest on criminal charges. The Supreme Court of British Columbia, the court at first instance, held for the Plaintiff against both Defendants. The action against the corporation was dismissed because the corporation did no t authorize its Defendant deliver man's actions and it was not party to the prosecuti on. The MPC reached the same conclusion js the court at first instance about the liability of the defendant delivery man. However, the MPC disagreed with the court at first instance about the liability of the defendant policeman. The MPC, on the basis that the policeman had no motive other than to enforce the law, found that, despite his careless investigation, he did not act maliciously and was therefore not liable in malicious prosecution. Interestingly, the Defendant policeman appealed to the British Columbia Court of Appeal. The court allowed the appeal finding that there was no malice for the same reasons given by the MPC. III. EVALUATION The MPC's conclusions were consistent with ten out of 11, or 90.9%, of the cases tested. There is a strong argument to be made that Manning v Nickerson, the one case where the MPC disagreed with the decision of the court, was wrongly deciding. If this is correct, the MPC's success rate is 100%. In some instances it not only arrived at the correct result but used the same supporting authority as the court. This sort of correlation is, however, unpredictable because of the large body of Commonwealth case law on malicious prosecution from which courts may select. The testing process emphasized some of the advantages of the CBR approach. Conflicting case law is identified, displayed and weighed much in the same way as a lawyer might prepare •. law for a trial. Less desirable options such as resolving conflicts by formulating specific rules or assigning confidence factors are avoided. The method of removing cases for testing and then reinstating them in the database emphasized the power of a CBR system in that the MPC^* would change its outcomes and conclusions simply by virtue of adding or deleting cases from the database. The MPC is, therefore, able to operate at the level of expertise equivalent to a judge by accurately analyzing previously decided cases. Indeed, in the Walters case it functioned at the level of an appellate court judge when it disagreed with the decision at first instance for the same reasons adopted by the British Columbia Court of Appeal. 94 BIBLIOGRAPHY Ashley, Kevin D., Modelling Legal Arguments: Reasoning with Cases and Hypothetical, M.I.T. Press, Cambridge, Mass., 1990 (in press). Blackman, Susan J., Expert Systems in Case-Based Law: The Rule Against Hearsay, LL.M. Thesis, University of British Columbia, Faculty of Law, 1988. Brazier, M.B.,Sfreef on Torts, 8th ed., Butterworths, London, 1988. Brule, James F., Artificial Intelligence Theory Logic and Application, Tab Books Inc., Philadelphia, 1986. Capper, Professor Phillip, Susskind, Dr. Richard E., Latent Damage Law - The Expert System, Butterworths, London, 1988. Coval, S.C., & Smith, J.C., Law and its Pre-Suppositions: Actions Agents and Rules, Routledge & Kegan Paul, 1986. Deedman, C., Building Rule-Based Expert Systems in Case-Based Law, LL.M. Thesis, University of British Columbia, Faculty of Law, 1987. Fleming, J.G, The Law of Torts, 7th ed., Law Book Company Ltd, Sydney, 1987. Law Reform Committee of South Australia, Eighty-Third Report of the Law Reform Committee of South Australia Relating to Civil Actions for Perjury Committed in Criminal Proceedings and to the Tort of Malicious Prosecution, D.J. Woolman, Government Printer, South Australia, 1984. Leith, Philip, The Emperor's New Expert System, (1987) 50 Modern Law Review McCarty, L. Thorne, Intelligent Legal Information Systems: Prootems and Prospects (1983) 9 Rutgers Computer & Technology Law Journal 265. Parsaye, K. & Chignell, M., Expert Systems for Experts, John Wiley & Sons, Inc., New York, 1988. Perritt Jr., Henry H., Artificial Intelligence Techniques for Evaluating Employee Terminatons on a Personal Computer, (1987) 13 Rutgers Computer & Technology ; Law Journal 341. n . n. ri nri 3 t 3 i • U U U U "'C I D < I 95 Prosser, W.L. & Keeton, W.P., Prosser & Keeton on Torts, 5th ed., West Publishing Co., St. Paul, Minn., 1984. Rissland, Edwina L. & Ashley, Kevin D., "A Case-Based System for Trade Secrets Law", Proceedings of 1st International Conference on Artificial Intelligence and Law, (Boston) A.C.M. Press, New York, 1987, p. 60. Rogers, W.H.V., Winfield & Jolowicz on Tort, 13th. ed., Rogers & Maxwell, London, 1989. • • . • • Schank, R.C., &. Abelson, R.P., Scripts, Plans, Goals and Understandings, Lawrence Erlbaum & Associates, New Jersey, 1977. Smith J.C., & Deedman, C., The Application of Expert Systems Technology to Case- Based Law .Proceedings of 1st International Conference on Artificial Intelligence and Law, (Boston), p. 84, A.C.M. Press, New York, 1987. Susskind, Dr. Richard E., Expert Systems in Law, Clarendon Press, Oxford, 1987. Susskind, Dr. Richard, E., "The Latent Damage System: A Jurisprudential Analysis", Proceedings of the Second International Conference on Artificial Law and Intelligence. (Vancouver) A.C.M. Press, New York, 1989, p. 23. Susskind, Richard E., Expert Systems in Law: A Jurisprudential Approach to Artificial Intelligence and Legal Reasoning, (1986) 49 Modern Law Review 168. Tovvnsend, Carl & Feucht, Dennis, Designing and Programming Personal Expert Systems, Tab Books Inc., Philadelphia, 1986. Weiner, Steven S., "CACE: Computer-Assisted Evaluation in the Brooklyn District Attorney's Office", Proceedings of the Second International Conference on Artificial Law and Intelligence, (Vancouver), A.C.M. Press, New York,1989, p. 215. APPENDIX I The framebase of the MPC (Schema frames are listed in Appendices VI & VII) Frams: Malicious Prosecution Parent: Thing Slot: action Value: If-Needed: analyse elements Frame: initiation of proceedings Parent: Malicious Prosecution Slot: element Value: If-Needed: get values for init proc slots Frame: IMMUNITY-INVOLVEMENT Parent: initiation of proceedings Slot: INVOLVMNT Value: If-Needed: set value single, INVOLVMNT, IMMUNITY- INVOLVEMENT If-Added: check answer INVOLVMNT New-Value Frame: IMMUNITY-EXTENT OF INVOLVEMENT Parent: IMMUNITY-INVOLVEMENT Slot: EXTENT Value: If-Needed: cbr single, EXTENT, IMMUNITY-EXTENT OF INVOLVEMENT, RES_EXTENT If-Added: cbr multi, HOW, HOW PROCEEDINGS INITIATED, RES_HOW Frame: HOW PROCEEDINGS INITIATED Parent: initiation of proceedings Slot: HOW Value: If-Needed: cbr multi, HOW. HOW PROCEEDINGS INITIATED, RESJIOW If-Added: get value single. WHO, WHO INITIATED PROCEEDINGS Frame: WHO INITIATED PROCEEDINGS Parent: initiation of proceedings Slot: WHO Value: If-Added: check answer WHO New-Value Frame: CAUSAL CONNECTION Parent: WHO INITIATED PROCEEDINGS Slot: CAUSAL_CON Value: If-Needed: get value multi CAUSAL_CON, CAUSAL. • CONNECTION If "-Added: check answer CAUSAL CON New-Value Frame! DEFENDANT RELATED INFORMATION Parent: CAUSAL CONNECTION Slot; REL_INFO Value: If-Needed: cbr single REL_INFO, DEFENDANT RELATED INFORMATION, RES WHO If-Added: instantiate PROPER INVESTIGATION? New-Value Frame: DEFENDANT INITIALLY UNAWARE Parent: CAUSAL CONNECTION Slot: WHEN_AWARE Value: If-Needed: cbr single, WHEN_AWARE, DEFENDANT INITIALLY UNAWARE, RESJ7HO Frame: termination of proceedings Parent! Malicious Prosecution Slot: element Value: If-Needed: get values for termin slots Frame: PROCEEDINGS DETERMINED Parent: termination of proceedings Slot: PROC_DTMD Value: If-Needed: get value single, PROC_DTMD, PROCEEDINGS DETERMINED , If-Added: check answer PROC_DTMJ New-Value Frame: OUTCOME OF PROCEEDINGS Parent: PROCEEDINGS DETERMINED Slot: TERMIN Value: If-Needed: cbr multi, TERMIN, OUTCOME OF PROCEEDINGS, RES_TERMIN Framei WHY NOT DETERMINED Parent: PROCEEDINGS DETERMINED Slot: NOT_DTMD Value: If-Needed: cbr multi, NOT_DTMD, WHY NOT DETERMINED, RES_TERMIN : Frame: damages Parent: Malicious Prosecution Slot:, element Value: If-Needed: get values for damages slots Frame: TYPE OF PROCEEDINGS Parent: damages Slot: PROC_TYPE Value: If-Needed: get value multi, PROC_TYPE, TYPE OF PROCEEDINGS If-Added: check answer PROC TYPE New-Value Frame: WINDING UP-TRADING CO Parent: TYPE OF PROCEEDINGS Slot: WUP TRD CO Value: If-Needed: cbr single, WUP_TRD_CO, WINDING UP-TRADING CO, RES_TRADER If-Added: cbr single, WUP_DAMAGE, WINDING UP-LOSS, RES_LOSS Frame: WINDING UP-LOSS Parent: WINDING UP-TRADING CO Slot: WUP_DAMAGE Value: Frame: BANKRUPTCY-TRADER Parent: TYPE OF PROCEEDINGS Slot: BNK TRADER Value: If-Needed: cbr single, BNK_TRADER, BANKRUPTCY-TRADER, RES TRADER If-Added: cbr single, BNK_DAMAGE, BANKRUPTCY-LOSS, RES_LOSS Frame: BANKRUPTCY-LOSS Parent: BANKRUPTCY-TRADER Slot: BNK_DAMAGE Value: Frame: CIVIL-NO COSTS-LOSS Parent: TYPE OF PROCEEDINGS Slot: NOCOSTLOSS Value: If-Needed: cbr single, NOCOSTLOSS, CIVIL-NO COSTS-LOSS, RES_LOSS Frame: OTHER CIVIL-LOSS Parent: TYPE OF PROCEEDINGS Slot: OTRCVLLOSS Value: If-Needed: cbr single, OTRCVLLOSS, OTHER CIVIL-LOSS, RES_LOSS ' " . ' . . Frame: NATURE OF DAMAGE Parent: TYPE OF PROCEEDINGS Slot: DAMAGES Value: -If-Needed: get value multi, DAMAGES, NATURE OF DAMAGE If-Added: check answer DAMAGES New-Value Frame: IMPRISONMENT DIRECT CONSEQUENCE? Parent: NATURE OF DAMAGE Slot: IMP CONSQ Value: ~ ~If-Needed: cbr single, IMP_CONSQ, IMPRISONMENT DIRECT CONSEQUENCE?, RES_LOSS Frame: REPUTATION Parent: NATURE OF DAMAGE : • Slot: REP DEFAME Value: ~~If-Needed: cbr single, REP_DEFAME, REPUTATION, RES_LOSS 99 Frame: malice Parent: Malicious Prosecution Slot; element Value; If-Needed; get value for malice slot Frame; DEFENDANT'S MOTIVE Parent: malice Slot; MALICE Value: If-Needed; cbr multi. MALICE, DEFENDANT'S MOTIVE, RES_MALICE Frame; general storage Parent: Thing Slot; answer Value: Slot: status Value: Slot: flag Value: Slot: flag2 Value; Slot; matches flag Value: Slot: hyper term Value: Slot: print flag Value; off APPENDIX 11 The rulebase of the MPC ASK.BWD ask question multi,'slot' concatenate "why text 'slot','why text' AND (hyper term of general storage) := 'why text' AND list-remove answers list AND repeat AND run-dialocr-routine 'slot' AND NOT list-equal answers list,"[]" AND NOT list-nth-member 3,1member1',answers list AND check for why AND NOT 1ist-nth-member 2,'member2',answers list AND no-backtrack; check for why NOT list-member "Why?",answers list AND , no-backtrack list-member "Why?",answers list .AND 1ist-nth-member 2,'member',answers list AND find hyper term number 'value' 'AND' 'slot value' := (hyper term of general storage) AND concatenate 1 slot value'," ",'value','slot value' AND (hyper term of general storage) :='slot value' AND".' run-menu cases AND no-backtrack 'AND •.•.'.' 101 fail OR list-member "Why?answers list AND NOT list-nth-member 2,1member1,answers list AND ' run-menu cases AND no-backtrack AND fail; % find hyper term number 'value1 IF repeat AND list-nth-member 'number1,'value',answers list AND NOT 'value' = "Why?" AND no-backtrack; % ask question single,'slot' IF concatenate "why text ",'slot','why text' AND (hyper term of general storage) := 'why text' AND repeat AND run-dialoq-routine 'slot' AND list-remove answers list AND 'answer' := ('slot' of User Profile) ... ' .AND ••••.. Iist-add-member 'answer',answers list AND check for why AND no-backtrack; CAUSE.BWD get values for CAUSE slots IF NOT (flag of general storage) = PROPER INVESTIGATION instantiated AND n n n n Lf U'U U l U 1 .'.. i I 'X' := (INVESTIG of PROPER INVESTIGATION) AND NOT has-value Malicious Prosecution,action AND (element of "reasonable & probable cause") := passed AND no-backtrack (flag of general storage) = PROPER INVESTIGATION instantiated AND (INVESTIG of User Profile) := Defendant fabricated evidence AND run-dialog-routine invest instantiated AND pass-fail subroutine INVESTIG, PROPER INVESTIGATION, "RES_CAUSE" AND (INVESTIG of PROPER INVESTIGATION) := (INVESTIG of User Profile) AND NOT has-value Malicious Prosecution,action AND (element of "reasonable & probable cause") := passed AND no-backtrack no-backtrack; check answer INVESTIG 'new value' ;new value' = advice received about proceedings AND . 'X' := ("ADVICE_OK" of ADVICE SOUGHT) (matches flag of general storage) := triggered AND cBr no question INVESTIG, PROPER INVESTIGATION, "RES_CAUSE" AND no-backtrack; CBR.BWD get value 'type','slot','frame' NOT has-value Malicious Prosecution,action AND convert term 'Hint' AND . — n - v — — . . - r r : J 103 ask question 'type','slot1 AND update slots 'slot'frame 1 AND update matches 'slot' AND ('slot1 of 'frame') := ('slot' of User Profile) OR no-backtrack • % cbr 'type','slot','frame','result field' IF NOT h a s z v a T u e M a l i c i o u s P r o s e c u t i o n , a c t i o n AND convert term 'slrvt-' AND ask question 'type','slot' AND update slots 'slot','frame' ^ • AND pass-fail subroutine 'slot','frame','result field' AND • ('slot' of 'frame') := ('slot' of User Profile) OR no-backtrack; % cbr no question 'slot','frame','result field' IF NOT has-value Malicious Prosecution,action ' AND • . pass-fail subroutine 'slot','frame'.'result field' OR n o - b a c k t r a c k ; convert term 'slot' IF length ' slot','lengthl' ..•AND: . 'lengthl' := 'lengthl' - 1 : AND substring 'slot',1,'lengthl','slota' AND 'slot' := 'slotl' 7 AN D • no-backtrack; 104 u p d a t e s l o t s ' s l o t ' , ' frainp' IF concatenate 'slot1," list",'update list' AND list-member 'number',answers list AND convert yes no to number 'number' AND 1ist-nth-member 'number','member','update list' AND ('slot1 of User Profile) := 'member' AND no-backtrack; % convert yes no to number 'number' IF 'number' = Yes AND 'number' := 1 AND no-backtrack OR 'number' = No AND •number' := 2 AND no-backtrack OR no-backtrack; pass-fail subroutine 'slot'f'framp','result field' IF concatenate 'slot' /' passed list",'cases passed list' AND • list^assign "[]",'cases passed list' . ••• .AND . "concatenate 'slot'," failed list",'cases failed list'" AND"' list-assian "[]",'cases failed list' AND retrieve cases 'result field1,'slot' AND delete empty list 'cases passed list' AND delete empty 1 ist ' cases fai 1 r-ri i i at- • • • AND •..••••:••. check if failed list exists ! 'easas passpd 1 i s t - ' racca failed list','frame','slot' OR (element of (status of general storage)) := failed • n n, n n - j i c n U'Lh U U t , C'..,'i _i u 105 AND (action of Malicious Prosecution) := failed? retrieve cases 'result field" 'slot' IF 'answer' :=('slot' of User Profile) AND use-relation-file CASES.DAI AND get-instance 'record ID', FROM cases WHERE 'slot' = 'answer' AND 'citation' := (CITATION of 'record ID') AND 'name' := (NAME of 'record ID') AND 'outcome' := ('result field' of 'record ID') AND 'weicht' := (WEIGHT of 'record ID') AND concatenate 'weight'," ",'name',"",'citation','case' AND concatenate 'slot',"",'outcome' "list",'list' AND •.••...•..•••••..,', add case to list 'case','list' AND changre_matches 'name','citation' AND ' • fail DR (matches flag of general storage) := "NO-VALUE" AND no-backtrack: change matches 'name' '<-.itatinn» IF • • (matches flag of general storage) = triggered use-relation-file MATCHES.DAI 'AND • • get-instance 'record ID', FROM matches WHERE NAME = 1name',CITATION = 'citation' AND 'X' := (MATCHES of 'record ID') AND •X' := 'X' + 1 AND (MATCHES of 'record ID') := 'X' OR IF OR IF OR AND use-relation-file CASES.DAI AND no-backtrack: IF OR check if failed list exists 'cases passed list','cases failed list','frame','slot' NOT is-a-list .'easss failed list' is-a-list 'cases failed list' AND is-a-list 'cases passed list' AND display conflicting authorities 'cases passed list' 'cases failed list','slot' . . . . . ' AND no-backtrack is-a-list 'cases failed list' AND NOT is-a-list 'cases passed list' AND display failed message 'cases failed list' "mal pros failed",'slot' AND no-backtrack AND fail; delete empty list 'list' is-a-list 'list' AND list-eaual »[]»,'list' AND list-remove 'list' no-backtrack; add case to list 'case','list' NOT list-member 'case','list' AND' . make-list 'case',interim list AND list-append interim list,'list','list' fBYlfiUFWTrfflf'rrf'i 107 no-backtrack; % update matches 'slot' IF use-relation-file CASES.DAI AND •answer1 := ('slot' of User Profile) AND get-instance 'record ID1, SELECT NAME,CITATION,"slot' FROM cases WHERE 'slot' = 'answer' AND 'name' := (NAME of 'record ID') : AND 'citation' := (CITATION of 'record ID') AND change matches 'name','citation' AND fail OR no-backtrack; CONFLICT.BWD determine preferred authority 'cases passed list', 'cases failed list','party' IF 1ist-nth-member 1,'easel','cases passed list' AND .. 1ist-nth-member 1,'case2','cases failed list' AND substring 'easel',1,2,'weightl' . AND substring 1case2',1,2,'weight2' ' A N 0 ' • ' • .compare single weight 'weightl','weight2','party','cases passed list','"cases" failed list' . . AND • ' : no-backtrack; % compare single weight 'weightl','weight2','party','cases passed list','cases failed list' •••.••:• IF 'weightl'>'weight2' 'party' := "plaintiff's" OR 1weight21>1weightl1 AND 'party' := "defendant's" OR get total weight 'cases passed list','weightl' AND get total weight 'cases failed list','weight2' AND compare total weight 'weightl','weight2','party' AND no-backtrack; % compare total weight 'weightl','weight2','party' IF 'waightl'>1weight2' •• AND. • • ' ' " 'party' := "plaintiff's" OR 'weight2'>'weightl' AND 'party' := "defendant's" OR 'party' := "neither - the lines are of equal weight" AND no-backtrack; % get total weight 'list'.'weight' IF 'weight' := 0 .'AND ' list-member 'member','list' AND substring 'member',1,2,'substring' AND -'weight' := 'weight' + 'substring' AND . ' . fail •..'•' OR no-backtrack; DAMAGES.BWD get values for damages slots IF , ' X ' .:••= ("PROC_TYPE" of "TYPE OF PROCEEDINGS"): AND NOT has-value Malicious Prosecution,action AND 109 (element of damages) := passed OR no-backtrack; % check answer PROC_TYPE 'new value1 IF 'new value' = winding up proceedings AND •X' : = ("WUP_TRD_CO" of "WINDING UP-TRADING CO") OR 'new value' = bankruptcy proceedings AND 'X' := ("BNK_TRADER" of "BANKRUPTCY-TRADER") OR 'new value' = "civil proceedings where no costs power" AND •X' := (NOCOSTLOSS of "CIVIL-NO COSTS-LOSS") AND check answer NOCOSTLOSS OR 'new value1 = "other civil proceedings" AND 'X' := (OTRCVLLOSS of "OTHER CIVIL-LOSS") OR 'X' := (DAMAGES of "NATURE OF DAMAGE"); check answer NOCOSTLOSS IF NOT is-a-list NOCOSTLOSS failed list AND (NOCOSTLOSS of User Profile) = "civil proceedings where no costs power - no financial loss" ' • AND . run-dialog-routine NOCOSTLOSS rule AND .••••• .(flag2 of general storage) := triggered AND (element of (status of general storage)) := failed AND (action of Malicious Prosecution) := failed OR no-backtrack; check answer DAMAGES 'new value' IF 'new value' = imprisonment AND 'X' := ("IMP_CONSQ" of "IMPRISONMENT DIRECT CONSEQUENCE?") • ' • . - ! 110 OR 'new value' = "threat of imprisonment" AND •X' := ("IMP_CONSQ" of "IMPRISONMENT DIRECT CONSEQUENCE?"} OR •new value1 = damage to reputation AND . ' 'X' := ("REP_DEFAME" of REPUTATION) OR (matches flag of general storage) ;- triggered AND cbr no question "DAMAGES","NATURE OF DAMAGE","RES LOSS" AND ' no-backtrack; DIALOG.BWD run-dialoq-routine 'dialog' IF open-dialog 'dialog' ' -. AND ' run-di?.loq 'dialog' AND (print flag of general storage) = on •'• AND, • C DOS, prtacr.exe .AND • • • . . . , . close-dialog 'dialog' AND ' no-backtrack OR close-dialog 'dialog' • AND ••••••.•.••• no-backtrack; , DLG-INIT "CAUSAL_CON" IF " • run-dialoq-routine who intro; % ;••„.": DLG-SAVE HOW / IF dialoq-qet-set HOWrchoice,answers list AND no-backtrack; DLG-SAVE "CAUSAL CON" BOD MBt n n n n u u u u i D i ' L il Sh IF IF IF IF IF IF IF dialog-qet-set "CAUSAL_CON",choice,answers list AND no-backtrack; DLG-SAVE TERMIN dialoq-aet-set TERMIN,choice,answers list AND no-backtrack: DLG-SAVE "NOT_DTMD" dialog-get-set "NOT_DTMD",choice,answers list AND'' no-backtrack: DLG-SAVE DAMAGES dialog-qet-set DAMAGES,choice,answers list AND; ' : no-backtrack: DLG-SAVE "PROC_TYPE" d i a l o g - q e t - s e t "PROC_TYPK"frlinif;p,an5i,mi-c l i s t • AN0 ••'' n o - b a c k t r a c k : DLG-SAVE INVESTIG dialog-qet-set INVESTIG,'choice,answers list AND. •.. ' . no-backtrack: DLG-SAVE "ADVICE_OK" dialog-qet-set "ADVICE_OK",choice,answers list AND no-backtrack: 111 n n n n n „< i U IJ U U !i C 1 -I ,1 112 DLG-SAVE MALICE IF dialog-get-set MALICE,choice,answers list AND no-backtrack; DLG-SAVE NOCOSTLOSS rule IF dialoq-qet-set NOCOSTLOSS rule,choice,display briefs list AND check for selected cases OR ' " no-backtrack; % ' , . ' , : .V\;y"\ DLG-SAVE who intro IF no-backtrack; % . ' DLG-INIT "states/provinces" IF •country' := (answer of general storage) AND concatenate 'country'," list",'list1 • AND , ' :•.:,•/•••• dialog-set-column "states/provinces"f choice, "states/provinces", 'list' AND • •• • . no-backtrack: DLG-SAVE "states/provinces" IF 'number' := (choice of "states/provinces") AND dialog-get-nth-row "states/provinces", choice, 'number', 'jurisdiction' AND change jurisdiction '"jurisdiction' AND no-backtrack; DLG-SAVE conflict cases IF 113 no-backtrack; . 3 IF IF IF IF IF IF IF IF DLG-SAVE conflict authorities no-backtrack; DLG-SAVE invest instantiated no-backtrack; DLG-SAVE jurisdiction (answer of general storage) := (choice of jurisdiction) AND .••.••,•••.•• no-backtrack; DLG-SAVE review reasons no-backtrack; DLG-SAVE change matches no (answer of general storage) := (choice of change matches no) • AND •:. • • no-backtrack; DLG-SAVE mal pros quit -no-backtr~ck; DLG-SAVE mal pros passed no-backtrack; DLG-SAVE copyright no-backtrack; • RBBOEKgLMtMiaJtlL*. n n n n i 0 >i C n ... •> ... b. . z « t . . u u u L >1 D , { * * , -i 114 IF OR DLG-SAVE comments comment has-a 'slot1 AND ('slot' of comment) := ('slot' of comments) AND fail add-instance comments,comment AND no-backtrack: BUTTON-CHOSEN 'dialog',print (print flag of general storage) = on AND (print flag of general storage) := off (print flag of general storage) := on AND C DOS, prtscr.exe; DLG-SAVE 'dialog name' IF ('dialog name' of User Profile) := (choice of 'dialog name') . AND. no-backtrack: DISPLAY.BWD display failed message 'cases list','question', 'slot' IF OR IF -find reason list 'slot'.'reason list' AND 1ist-nth-member 1,'element','reason list' AND 1ist-nth-member 2,'reasonl','reason list' AND list-nth-member 3.'reason2','reason list1 AND 1 ist-nth-member 4,' reason3 ',' reason list1 AND question 'question','reference' AND repeat AND n-n n n • I L n" 1 'fStTiJi - t-i#t-i u •J >) l 0 u 115 pop-text-set display briefs list,'cases list',5,1,'reference','element','reasonl','reason?', 'reason3' AND check for selected cases AND no-backtrack; % find reason list 'slot','reason list' IF concatenate 'slot'," list",'list' AND 'answer' := ('slot' of User Profile) AND ' list-nth-member 'number','answer','list' AND concatenate 'slot'," ",'number'," reason list",'reason list' AND • is-a-list 'reason list' AND no-backtrack or; concatenate 'slot'," reason list",'reason list' . AND no-backtrack; display case list 'question','list' IF.-: question 'question',1 reference' AND : repeat /AND pop-text-set display briefs list,'list',5,1,'reference' • '"AND •.• . check for selected cases AND .. " \ , • • : " :•••..• . no-backtrack; display passed message 'passed list' IF list-member 'case','passed 1 ist' AND display case list 'passed list','passed list' • AND no-backtrack OR no-backtrack; check for selected cases IF NOT list-nth-member lf'member'.display briefs List AND no-backtrack OR list-nth-member 1,'member',display br.iefs list AND run-menu cases •AND fail; % display hyper term 'member1 IF truncate hyper terra 'member' ' AND 'counter' := 9 AND • repeat AND • 'hyper term' := "" AND.' 'counter' := 'counter' + 1 AND substring 1member1,1,'counter1, 'hyper term' • AND' ' hyper-action 'hyper term' AN0 ' no-backtrack; truncate hyper term 'member' ••if •start1 := 3 .AND • • repeat • • • ."'•• AND •finish' := 'start' + 1 AND substring 'member','start','finish','substringl1 AND 'start' := 'start' + l , AND 'substringl' = " " AND 'start' := 'finish1.+ 1 AND length 'member','length' AND •finish1 := 'length1 - 'start1 AND substring 'member','start','finish','substring2' AND 'member' := 'substring2' AND no-backtrack; display conflicting authorities 'cases passed list', 'cases failed list','slot' run-dialog-routine conflict authorities AND' display failed message 'cases failed list', "passed/failed cases Def",'slot' AND . '• display failed message 'cases passed list', "passed/failed cases PI",'slot' AND i ' . . • determine preferred authority 'cases passed list', 'cases failed list','party' AND question preferred authority,'reference' AND pop-text-choose 'choice',yes no list, 1, 2, 1 reference','party' AND' • 'choice' = Yes AND'' • redisplay cases 'cases passed list','cases failed list AND no-backtrack no-backtrack; . redisplay cases 'cases passed list1,'cases failed list repeat AND '.•"..••..••••••..•• " open-dialog conflict cases AND dialog-set-column conflict cases,choicel,"plaintiff's cases",'cases passed list' AND dialog-add-row conflict cases,choicel,"Display no •cases", • AND dialog-set-column conflict cases,choice2,"defendant's cases",'cases failed list' AND 118 dialog-add-row conflict oases,choice2,"Display no cases" AND run-dialog conflict cases AND 'numberl' := (choicel of conflict cases) AND 'number2' := (choice2 of conflict cases) AND dialog-get-nth-row conflict cases, choicel, 'numberl1, 'easel' AND dialog-get-nth-row conflict cases, choice2, 'number2', 'case2' AND .•.••••. display cases 'easel' , '.AND ' display cases 'case2' "'AND ; ... ' 'easel' = 'case2' ' AND ' close-dialog conflict cases AND no-backtrack; % display cases 'case' IF ..•; . NOT 'case' = Display no cases / AND safe-list-remove display briefs list AND make-list 'case'.display briefs list AND check for selected cases OR no-backtrack; INITIAL.BWD safe-list-remove 'list1- IF is-a-list 'list' list-remove 'list' OR no-backtrack; clear lists 119 for-everv 'frame' is^a Malicious Prosecution do delete lists 'frame'; delete lists 'frame' IF 'frame' has-a 'slot' AND concatenate 'slot'," passed list",'passed list' AND safe-list-remove 'passed list' AND concatenate 'slot'," failed list",'failed list' AND safe-list-remove 'failed list' AND .' .. fail OR no-backtrack; initialise system IF move-cursor-to 22,12 AND • write "Initializing system.... Please wait." " ' : AND '.'.• safe-list-remove "plaintiff's cases list" • AND safe-list-remove "defendant's nasps i-isi-» AND clear slots User Profile AND " clear slots general storage •' • AND . ;••»:• ?'.r-':.;.' (action of Malicious Prosecution) := "NO-VALUE" AND -(element of "initiation of proceedings") := "MO-VALUE" AND " (element o.f "termination of proceedings") := "NO-VAT,vTS'1' AND (element of "reasonable & probable cause") := "NO- VALUE" ; AND ,•:•'' . (element of malice) := "NO-VALUE" • and (element of damages) := "NO-VALUE" • AND clear lists AND clear matches values AND 120 repaint-screen AND no-backtrack; % • ••' clear slots 'frame' IF for-everv 'frame' has-a 'slot' do ('slot' of 'frame') ;= "NO-VALUE"; % . •..•••' clear matches values IF use-relation-flie MATCHES.DAI AND. • •• get-instance 'record ID', SELECT MATCHES FROM matches WHERE MATCHES>=1 : AND •• (MATCHES of 'record ID') := 0 AND •' . fail OR no-backtrack; INITPROC.BWD get values for init proc slots IF • ,. • V; .-,-• ' ; ' , - ^ ^ 'X' := (INVOLVMNT of "IMMUNITY-INVOLVEMENT") AND NOT has^value Malicious Prosecution,action AND (element of "initiation of proceedings") := passed OR -no-backtrack; check answer INVOLVMNT 1 new value' IF.' ;"".'.' ' 'new value' = involvement by Defendant to trigger immunity test AND "X' .: = (EXTENT of "IMMUNITY-EXTENT OF INVOLVEMENT") OR . 'X' ;= (HOW of HOW PROCEEDINGS INITIATED); IF OR IF OR OR IF OR 121 check answer WHO 'new value' 'new value' = other person initiated proceedings AND : 'X' := ("CAUSAL_CON" of CAUSAL CONNECTION) no-backtrack: check answer CAUSAL_CON 'new value' 'new value' = "Defendant related information to judicial/ministerial officer" AND •X' := ("REL_INFO" of DEFENDANT RELATED INFORMATION) 'new value' = "Defendant initially unaware of proceedings but later aware" AND 'X' := ("WHEN_AWARE" of DEFENDANT INITIALLY UNAWARE) (matches flag of general storage) := triggered . AND cbr_jio_guestion "CAUSAL_CON",CAUSAL CONNECTION, "RES_WHO" AND no-backtrack; instantiate PROPER INVESTIGATION? 'new value' 'new value' = Defendant related false information AND (flag of general storage) := PROPER INVESTIGATION instantiated no-backtrack; IF JURIS.BWD change jurisdiction 'jurisdiction' load-factbase JURIS1.FBS •AND:' •,: NOT current jurisdiction-is 'jurisdiction' AND '.".' els AND move-cursor-to 13,12 AND 122 write "Changing jurisdiction to ", 'jurisdiction1, " Please wait." AND load-factbase JURIS2.FBS 'AND find records 'jurisdiction' and retract-all iurisdiction-is AND retract-all has-weight AND retract-all difference-is-worth AND • open-write JURIS1.FBS AND '••':• assert-file JURIS1.FBS,current iurisdiction-is 'jurisdiction' AND close-file JURIS1.FBS AND • commit-relations AND repa int-screen AND . . ' no-backtrack pop-text {The jurisdiction has already been set to %s.},'jurisdiction' 'AND • • no-backtrack: find records 'jurisdiction' , IF use-relation-file CASES.DAI ' "AND' get-instance 'Record ID', ; FROM' cases./ AND calculate weight 'Record ID','jurisdiction','weight' AND 'name' := (NAME of 'Record ID') AND 'citation' :- (CITATION of 'Record ID') AND change weight other relation 'name','citation','weight,' : AND '.v; ';•.<'""," ' ;; .•••:••••'"- •'.:,•.:;' Vy^;:: fail OR . no-backtrack; 123 calculate weight 'Record ID','jurisdiction','weight' I F 'court type' := ("COURT_TYPE" of 'Record ID') AND 'court type' has-weight 'weight' AND check date 1 weight1,1 Record ID' AND update statxis 'Record ID','jurisdiction','weight' AND (WEIGHT of 'Record ID1) := 'weight' AND no-backtrack: % check_date 'weight','Record IB' IF date 'Year','Month','Day','Day of Week' AND cojacakena.fae "19", 'Year', 'Year' AND 'case year' := (YEAR of 'Record ID1) AND 'difference' := 'Year' ~ 'case year' AND 'difference' difference-is-worth ' extra points' AND 'weight' := 'weight' + ' extra points' OR no^baektrack; % update status 'Record ID',England,'weight' IF (JURIS of 'Record ID1) = England AND ("JURIS_STAT" of 'Record ID') := lccal OR . reduce weight bv 15,'Record ID',other,'weight'; " % update status 'Record ID1 ,New Zealand,1 weight1 IF (JURIS of 'Record ID1) = England AND reduce Maiqht. by 101 'Record ID',England, 'weight' OR NOT (JURIS of 'Record ID1) = New Zealand AND NOT (JURIS of 'Record ID1) = England M D 124 redu-ee weishte bv 15,'Record ID",other,!height1 OR (JURIS of 5Record ID') = New Zealand AND ("JURIS_STAT" of 'Record ID') := local,; % update .status 'Record ID','jurisdiction^,'weight' IF lik&t-Ti»aiBiber 1 jurisdictionAustralia list AND update .status 'Record ID', Australia, 'jurisdiction1,Australia list,'weight' OR update .status Canada/Austra I ia 'Record ID', Canada, 1 jurisdiction1,Canada list,'weight1; % uodate -status •CaAad-s/Australia 'Record ID', 'country', •jurisdiction','list','weight' IF (JURIS of 'Record ID') = 'jurisdiction' AND 'weight' := 'weight' + 10 AND ("JURIS_STAT" of 'Record ID') := local OR 'case juris' := (JURIS of 'Record ID') AND list-meimlaeir ' case juris 1 , 1 list' AND ("JURIS_STAT" of 'Record ID') := country OR (JURIS of 'Record ID') = 'country' AND ("JURIS_STAT!i of 'Record ID') := country OR (JURIS of 'Record ID') = England AND reduce weisht bv 10,'Record ID',England,'weight' OR rediAGg weight by 15, 'Record, ID',other, 'weight' ; % jgdu&e weight by 'number',1 Record ID','value','weight' IF ("JURIS_STAT" of 'Record ID') := 'value' AND 'weight' := 'weight' ~ 'number' AND no -bagJctarack.-; 125 % change weight other relation 'name1,'citation','weight' IF u s e . . - r a L a t i o n - f i l a MATCHES , DAI AND set-instance 'record ID' FROM matches •WHERE NAME = 'name',CITATION = 'citation' AND (WEIGHT of 'record ID') := 'weight' AND use-relation-file CASES,DAI AND no-backtrack; MALICE.BWD set value for malice slot IF 'X' := (MALICE of "DEFENDANT'S MOTIVE") AND NOT has-value Malicious Prosecution,action AND (element of .aciiice) := passed OR no-backtrack: MALPROS.BWD mal pros go IF run-menu mal pros AND no-backtrack; % a n a l y s e e l e m e n t s IF (status of general storage) := "initiation of proceedings" AND (element of "initiation of proceedings") = passed AND (status of general storage) := "termination of proceedings" AND (element of "termination of proceedings") = passed AND .(status of general storagej := "damages)' AND (element of damages) = passed AND (status cf general storage) := "reasonable & probable cause" AND (element of 11 reasonable & probable cause") = passed AND (status of general storage) := malice AND (element of malice) = passed AND (action of Malicious Prosecution) := passed (action of Malicious Prosecution) := failed; 1 MATCHES.BWD find mntchin-s cases 1 party1, 1 list1 concatenate 'party'," matches",'relation1 AND li.st-asoi.qn "[]",'list' AND lg»ad--£ac£laa&e MATCHES , FBS AND fact matches number-is 'number' AND use-relation-file MATCHES.DAI AND set cases 'party','list','number' AND no-backtrack: set cases 1 party 1, 11ist 1 number1 qefc-instance 'record ID', SELECT NAME, CITATION, "HELD-POR" .WEIGHT, MATCHES FROM matches WHERE MATCHES>='number',"HELD_FOR" = 'party' AND 'name' := (NAME of 'record ID') AND 'citation' = (CITATION of 'record ID') AND 'weight' := (WEIGHT of 'record ID') AND 'matches' := (MATCHES of 'record ID') AND concatenate 'matches', " ",1 weight1," ",1 name'," ", 'citation','case1 OR IF IF IF IF IF 127 AND add case to list 'case1,'list1 AND fail no-backtrack; MENU.BWD MENU-CHOSEN 'menu' /'Instructions" hyper-action introduction; MENU-CHOSEN 'menu',on (print flag of general storage) := on AND C DOS, PRNTSCR.EXE AND no-backtrack; MENU-CHOSEN 'menu',off (print flag of general storage) := off AND C DOS, PRNTSCR.EXE AND iiu "Ldiktrack ; MENU-CHOSEN 'menu',"List cases in database" • hyper-action browse AND no-backtrack; MENU-CHOSEN 'menu',Resume no-backtrack AND fail; APP-STARTUP mal pros check wrinter status AND open-xal̂ ifciajas CASES . DAI, SOOO , 1400 AND open-xeJ.afci.giag MATCHES,DAI AND onen-_relafc±ons COMMENTS , DAI AND JLoad-ilacfcJaaj&e INDEX. FBS AND load-̂ fiâ fciaa&e MTINDEX.F8S AND load-jEjaanebase SCHEMA,FRM AND load-tramebasie MTSCHEMA,FRM AND load-jxanieha^e CMSCHEMA, FRM AND rim-dialoa-xoufcijae copyright AND no-backtrack; j-tBHU-CHQSEi-i mal pros, Full consultation initialise system AND (status of general storage) := (action of Malicious Prosecution) AND run-menu conclusions AND no-backtrack: MENU-CHOSEN mal pros,Display "load-factbase JURISl.FBS AND current iurisdiction-is 'jurisdiction' AND Dop-taxfc (Current jurisdiction is %s.), 'jurisdiction' AND no-backtrack: MENU-CHOSEN mal pros,Change run-dialos-routine jurisdiction AND 129 NOT (answer of general storage) = New Zealand AND NOT (answer of general storage) = England AND xun-dlaJc^.-rmti,ng "states/provinces" AND no-backtrack OR 'jurisdiction' := (answer of general storage) AND nhanqe jurisdiction Ajurisdiction' AND no-bac-kLracb; % MEW-CHOSEN mal pros,Quit IF rm-dialog -jaautlne mal pros quit AND close-relations C.ASES . DAI AND close-jselatlons MARCHES , DAI AND del et.e-frame User Profile AND delete-fxame cases AND delete-£jsarne matches AND retract-all is-an-index AND retrant-a11 has-i ndey-fj eld AND fail; % MENU-CHOSEN mal pros,Evaluate system IF uss-relation-file COMMENTS,DAI AND xun-dialoa--routine comments AND coimit-jselaJ^lans COMMENTS , DAI AND comment has-a 'slot' AND (.' slot1 of comment) := "NO-VALUE" AND fail OR no-ha-cJctrack.; 130 % MENU^CHQggN mal pros,'element' IF NOT ' element' = Quit AND NOT 'element' = Resume AND initialise system AND (status of general storage) AND (answer of general storage) AND xug-jtiejajj conclusions AND jio-JaackLrack; % APP-STARTUP conclusions IF % check printer status % AND (status of general storage) = passed AND enable all menu items AN3 xun-di.aljas-jaautj.n.e mal pros passed AND xun-dia 1 ^~.m].i.t j .dp review reasons AND no-backtrack OR (status of general storage) = failed AND enable appropriate menu items AND •run-di.al.QS-jaautine review reasons AND no-backtrack OR 'element' := (status of general storage) AND send-mas^ase "MENU-ITEM--ENABLE", conclusions, 'element' AND check result AND jun-dialog-jaaufcj.ne review reasons AND no-bac-ktjagk,; ' := 'element' := (element of 'element') 131 check printer status IF (print flag of general storage) = on AND send-measasa "MENU-ITEM-DISABLE", conclusions, on OR send-messacta. "MEiTO-ITEM-DISABLE",conclusions,off AND no-backtrack; % HENU-CHOSEN conclusions,damages IF (flag2 of general storage) = triggered AND run-dialog-routine NOCOSTLOSS rule OR tor-evary 1 fraise 1 is-a damages do show conclusions 1 frame1 ; % MENU-CHOSEN conclusions,"Plaintiff *s relevant cases" IF find matchins cases plaintiff."plaintiff's cases list" AND NOT list-eaual "[]", "plaintiff's cases list" AND display case list "plaintiff's cases", "plaintiffs cases list" OR list-remove "plaintiff's cases list" AND question, no matches,'reference 1 AND fact matches nnmher-i « 'number' AND pou-text 'reference',Plaintiff,'number1 AND no-backtrack; % MKNTi-rHQSKN conclusions,"Defendant's relevant cases" IF find matchins cases defendant,"defendant's cases list" AND NOT list-equal "[3" /defendant's cases list" AND display case list "defendant's cases" /'defendant's ' cases list" AND no -backtrack J . 1 A tf • « - - . - - - ^ - . „ 'ffljC--}! - N-- ^v^sS,- - ; - ' » _ ra - - - » . - j. OR list—remwe "defendant's cases list" AND question. no matchesreference' AND fact matches number-is 'number1 AND •Sop-text 'reference1,Defendant,'number1 AND no-backtrack , ; 132 IF MENU-CHOSEN conclusions,Display fact matches number fact matches number-is 'number1 AND pop-text (The minimum number of fact matches is %s.) 1 number' AND nCT^nwafohrwHr,; IF MENU-CHOSEN conclusions, Change fact matches number repeat AND run-dialas-jGoutiiae change matches no AND (answer of general storage) >= 1 AND (answer of general storage) <= 14 AND 'number' ;=• (answer of general storage) AND load-factbase MATCHES , FBS AND retract-all number-is AND o p e n - w r i t e INCHES.FBS , AND assert-file MATCHES . FBS , fact matches numb ex-is 'number" AND close-file MATCHES.F".S &Nn n o - b a c k t r a c k ; IF MENU-CHOSEN conclusions, 1 element1 NOT ' e l ement ' = Resume AND 133 fox-.evexv 'frame' is-a 'element' do- sihow CQiicliisiaias 'Irame'; % APP-STARTUP cases IF % check printer status % AND NOT iist-msmbex 'member1,display briefs list AND 'hyper term' := (hyper term of general storage) AND hyper-action 'hyper term' AND no-backtrack OR list-membex 'member1,display briefs list AND display hvner term 'member' AND fa i 1. OR list-assign 11 []",display briefs list AND no-backtrack: REASONS.BWD show conclusions 'frame' IF 'frame' has-a 'slot' AND concatenate 'slot'," passed list'','passed list' AND concatenate 'slot'," failed list",1 failed list' AND check lists 'passed list1,'failed list','frame','slot' AND no-backtrack; % check lists 'passed list', ' failed list', 'frame', 'slot' IF cJaeck if tailed Itst existis 'passed list', 'failed list','frame','slot' AND check tax passed ljLst 'passed list','failed list' AND no-backtrack OR no -back tx.ac.kr check for passed list 'passed list',1 failed list1 Is-a-Tist 'passed list1 AND NOT Is-a-Tist 'failed list1 AND display passed TTiessaqe 'passed list' no-backtrack; - enab le -appjKspsia-fee-Hiesiu -14>©fsis 'fraine' has-parent Malicious Prosecution AND has-value 'frame1,element AND send-messase "MENU-ITEM-ENABLE",conclusions,1 frame AND f a i 1 no-backtrack; enable all menu items iofceverv 'frame' has-uarent Malicious Prosecution do srw^-Tnessage "MEHU-ITEM-ENABLE" , conclusions, 1 frame (answer of general storage) = passed AND 'element' := (status of general storage) AND question conclusion,'reference 1 AND pop-text 'reference',1 element' no-backtrack; TERMIN.BWD se t - veriMes- fb-r- tfemtti^ s-Sots 'X' ;= (."PROC__pTMD" of PROCEEDINGS DETERMINED). 135 AND NOT has-value Malicious Prosecution, action AND (element of "termination of proceedings") := passed OR no-backtrack; % check answer PROC_DTOD 'new value' I F 'new value' = "proceedings heard/determined by judicial authority" AND »X' := (TERMIN of "OUTCOME OF PROCEEDINGS") AND no-backtrack OR 'X' := ("NOT_DTMD" of "WHY NOT DETERMINED") AND nco-hacktiradot.- APPENDIX m The factbase <f the MPC INDEX.FBS CASES index is-an-index cases CASES index has-index-f ield WEIGHT current jurisdiction-is British Colunibia Highest has-weisht 70 5 difference-is-worth 1 4 difference-is-worth 2 3 difference-is-worth 3 2 difference-is-worth 4 1 difference-is-worth 5 0 difference-is-worth 5 fact matches nuntoer-is 1 JURIS1.FBS JURIS2.FBS MATCHES.FBS MTINDEX.FBS MATCHES index is-an-index matches MATCHES index has-index-field MATCHES MATCHES index has-index-field WEIGHT 137 QUESTION.FBS auestion "mal pros failed", (Your fact situation does -not- satisfy the requirement of ~%s~ for the tort of malicious prosecution. %s %s %s The cases listed below support this conclusion. Please select the cases which you wish to view. -W CASE & CITATION- auestion "passed/failed cases Def",{The Plaintiff's fact situation may not satisfy the requirement of ~%s~ for the tort of malicious prosecution. %s %s %s The cases listed below support this conclusion. Please select the cases which you wish to view. CASE & CITATION-) auestion "passed/failed cases PI", {However, there are cases in favour of the Plaintiff on this point. Please select the cases which you wish to view. ~W CASE & CITATION-} au-estion "plaintiff's cases",{The cases listed below hold for the Plaintiff. They are sorted on the following basis: 1 In descending order of factual matches (-M-) to your fact situation. 2. In descending order of precedential weight (-W-).• Please select the cases which you wish to view. ~H W C&SE & CITATION-) .ai.M̂ai-ii.oin "defendant's cases", (The cases listed below hold for the Defendant. They are sorted on the following basis: 1. By descending number of factual, matches (~M~) to your fact situation. 2. By descending order of precedential weight (~W~) . Please select the cases which you wish to view. ~M W CASE & CITATION-} auestiuan preferred authority, (The s- line of authority is probably to be preferred. If you wish to consider this point you may review the cases, Do you want to review the cases?) question no matches, (There are no cases in the Malicious Prosecution Case Database in favour of the %s with at least %s factual match(es) to your fact situation.) REASONS.FBS auestian EXTENT passed list, (-ISSUE:- Whether the Defendant is immune to an action in malicious prosecution. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) auestion HOW passed list, (-ELEMENT:- INITIATION CP PROCEEDINGS -ISSUE;- How t h e p r o c e e d i n g s were i n i t i a t e d . The cases listed below support the Plaintiff on your fact situation. D l a a c r . o a l / s r t - f h o n a c a c T.TV* T r*V» y o U W i s h t o V i e W . ~W CASE & CITATION-} '.'..-':' -- J ' J " / « i ^ % r * . ' . . w - v ~ i - 1 Or 1 s. - c ' , , " • ' - m~ . * , v . . - j 139 suestion "REL_INFO passed list", {-ELEMENT:- INITIATION OF PROCEEDINGS -ISSUE:- The Defendant related false information to a judicial or ministerial officer. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) suestion WHEN-AWARE passed list", (-ELEMENT:- INITIATION OF PROCEEDINGS -ISSUE:- When the Defendant became aware of the proceedings, he took steps to continue, adopt or ratify the proceedings. The cases listed below support the Plaintiff on your fact situation, Please select the cases which you wish to view. ~W CASE & CITATION-} question »CAUSAL_CON passed list", (-ELEMENT:- INITIATION OF PROCEEDINGS -ISSUE:- The causal relationship between the Defendant and the proceedings initiated by the other person (s) . The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) suestion "TERMIN passed list", (-ELEMENT:- TERMINATION OF THE PROCEEDINGS IN FAVOUR OF THE PLAINTIFF If the Plaintiff was -not- determined to be guilty as charged or liable in the proceedings, or if the proceedings were not capable of such determination, then the above element is proven. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASES CITATION-) . • , 140 •suestion "H0T_DTMD passed list", (-ELEMENT:- TERMINATION OF THE PROCEEDINGS IN FAVOUR OF THE PLAINTIFF The cases listed below support the Plaintiff on your fact situation. Please select the cases »-:hich you wish to view. ~W CASE & CITATION-) i»uesitiuaji uWTJP__TRD_CO passed list", (-ELEMENT:- DAMAGES -ISSUE:-- The issuing of winding up proceedings. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) iSiikestikan »WUP_DAMAGE passed list", (-ELEMENT:- DAMAGES -ISSUE:- The Plaintiff's loss arising from winding up proceedings. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) suestion "BNK^TRADER passed list", {-ELEMENT:- DAMAGES -ISSUE:- The issuing of bankruptcy proceedings. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W -CASE & CITATION-) question "BNK_DAMAGE passed list", (-ELEMENT:- DAMAGES -ISSUE:- The Plaintiff's loss arising from bankruptcy proceedings. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. -W CASE & CITATION-) . ' ' ' • n n n n D i o l u u u u <> c 'i a a uuestion DAMAGES passed list, {-ELEMENT:- DAMAGES -ISSUE:- The loss suffered by the Plaintiff. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE S CITATION-} uuestion "REP-DEFAME passed list" , {-ELEMENT:- DAMAGES -ISSUE:- The damage to the Plaintiff's reputation. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) suestion NOCOSTLOSS passed list, {-ELEMENT:- DAMAGES -ISSUE:- The Plaintiff's loss where civil proceedings were issued and the court had no power to award costs. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) question OTRCVLMSS passed list, (-ELEMENT:- DAMAGES -ISSUE:- The Plaintiff's loss where civil proceedings other than winding up, bankruptcy or proceedings where the court had no power to award costs were issued. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) questior, "IMP_CONSQ passed list",{-ELEMENT:- DAMAGES -ISSUE:- The Imprisonment or detention of the Plaintiff. The cases listed below support the Plaintiff on your fact situation. Pl'6'ase select the cases which you wish to view. ~W CASE & CITATION-) question INVESTIG passed list, (-ELEMENT:- REASONABLE a PROBABLE CAUSE -ISSUE:- The investigation by the Defendant of the proceedings brought against the Plaintiff. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) auestion "ADVICE-OK passed list", {-ELEMENT:- REASONABLE & PROBABLE CAUSE -ISSUE:- How the Plaintiff obtained and acted on advice about the proceedings. ' The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. ~W CASE & CITATION-) auestion MALICE passed list, {-ELEMENT:- Malice -ISSUE:- The primary motive of the Defendant in bringing proceedings against the Plaintiff. The cases listed below support the Plaintiff on your fact situation. Please select the cases which you wish to view. -W CASE & CITATION-} question conclusion.(Your fact situation satisfies the requirement of ~%s~ for the tort of malicious prosecution.) 143 APPENDIX IV The listbase of the MPC answers list ;= [] display briefs list := [ ] yes no list := (Yes,No] HOW list := [information sworn, charges laid, application made to judicial authority, legal proceedings issued in other manner, "no legal proceedings issued/initiated"] WHO list := [Defendant himself initiated proceedings, other person initiated proceedings] INVOLVMNT list := [involvement by Defendant to trigger immunity test, dummy entry] EXTENT list := ["Defendant did not take additional action", Defendant did not take additional action, Defendant took additional action] "CAUSAL_COH list" := [ "Defendant related information to judicial/ministerial officer" , Defendant initially unaware of proceedings but later aware, "Defendant requested/authorised proceedings" , "Defendant continued/adopted/ratified proceedings", "Defendant advised/assisted with proceedings" , "Defendant suggested he was prosecutor", "Defendant caused/arranged others to issue proceedings", "Defendant not responsible for proceedings"] "WHEN-AWARE list" := [ "when aware Defendant did not continue/adopt proceedings", "when, aware Defendant continued/adopted proceedings"] "REL_INFO list" := [ Defendant related true information, Defendant related false information] "PROC_DTMD list" := [ "proceedings heard/determined by judicial authority", "proceedings not heard/determined by judicial authority"] "NOT_DTMD list" := [ "proceedings not capable of determination by judicial authority", "proceedings discontinued/withdrawn11 ,"nolle prosequi entered", "compromise entered into", "habeas corpus order obtained", "proceedings still pending against Plaintiff"] TERMIN list := [ "finding of guilt/liability against Plaintiff", "judicial authority failed/refused to decide result of proceedings" , "no finding of guilt/liability against Plaintiff"] DAMAGES list := [financial loss,"imprisoned/detained","threat of imprisonment", "damage to reputation","no loss/damage suffered"] "IMP_C0N3Q list" := ["imprisonment direct result of prosecution" , "imprisonment indirect result of prosecution"] "REP_DEFAME list" : = [ "proceedings not capable of non-defamatory interpretation", "proceedings capable of non-defamatory interpretation"] "PROC_TYPE list" := [warrant of execution, "warrant of apprehension/arrest",search warrant,winding up proceedings, bankruptcy proceedings,civil proceedings where no costs power, other civil proceedings,criminal proceedings] "BNK_TRADER list" := ["trader/businessman" , "not~trader/businessman"] "BNK_DAMAGE list" := ["bankruptcy - financial loss" , "bankruptcy - damage t o reputation"] "WUP_TRD__CO list" := [trading company,"not trading company") "WUP_DAMAGE list" := ["winding up - financial loss", "winding up ~ damage to reputation"] "OTRCVLLOSS list" := ["other civil proceedings - financial ' loss", "other civil proceedings - damage to reputation", "other civil, proceedings - no loss"] "NOCOSTLOSS list" := [ "civil proceedings where no costs power - financial loss", "civil proceedings where no costs power ~ no financial loss"] . "ADVICE_OK list" := [ Defendant withheld relevant information from advisor, advisor incompetent to advise about proceedings, advice plainly wrong, "advice not followed", 1 "advice obtained and acted on properly"] INVESTIG list := [advice received about proceedings, Defendant fabricated evidence, "Defendant concealed/ignored evidence" , "Defendant did not thoroughly investigate", "Defendant's decision to prosecute based on all relevant evidence"] MALICE list := ["financial/property",personal,strategic, "initiation of Eurther legal proceedings", "no benefit from initiation of proceedings"] -•••J —... -v . . .- J!.- .1 5 •••• • = J . - - . l a : 146 APPENDIX V - - The structure of the dBASE IV database Structure for database: C;\IC\MALPROS\CASES,DBF Number of data records: 147 FIELD FIELD NJ\ME TYPE WTDTH n v.r. TNDF.X 1 NAME Character 60 N 2 CITATION Character 50 N 3 YEAR Numeric 4 N 4 COURT Character 55 N 5 COURT TYPE Character 7 N 6 JURIS— Character 21 N 7 JURIS-STAT Character 7 N 8 HELD-POR Character 9 N 9 NOTES Character 80 N 10 MATCEES Numeric 2 N 11 WEIGHT Numeric 3 N 12 INVOLVMNT Character 49 N 13 EXTENT Character 40 N 14 HOW Character 40 N 15 WHO Character 39 N 16 CAUSAL-CON Character 61 N 17 REL INFO Character 35 N 18 WHEN-AWARE Character 55 N 19 PR0C_DTMD Character 54 N 20 NOT—DTMD Character 62 N 21 TERMIN Character 65 N 22 DAMAGES Character 32 N 23 IMP—CONSQ Character 43 N 24 REP-DEFAME Character 56 N 25 PROC TYPE Character 43 N 26 BNK TRADER Character 22 N 27 BNK DAMAGE Character 33 N 28 WUP TRD CO Character 19 N 29 TOP DAMAGE Character 33 N 30 OTRCVLLOSS Character 46 N 31 . NOCOSTLOSS Character 59 N 32 INVESTIG Character 64 N 33 ADVICE OK Character 51 N 34 MALICE Character 41 N 35 RES-EXTENT Character 6 N 36 RES-HOW Character 6 N 37 RES-WHO Character 6 N 38 RES-TERMIN Character 6 N 39 RES-TRADER Character 6 N 4£) JsES-iOSS .CbiLrsictor 6 N 41 RES CAUSE Character 6 N *#2 RESMALICE Character 6 N - - Total -- 1389 A sample record fromthe BA SEIVdatabase NAME METCALFE v STEWART CITATION (1929) 42 B.C.R. 96 '/EAR 1929 COURT British Columbia Supreme Court COURT-TYPE Trial JURIS British Columbia JURIS-STAT HELD-POR Plaintiff NOTES MATCHES 0 WEIGHT 3 0 INVOLVMNT EXTENT HOW information sworn WHO Defendant himself initiated proceedings CAUSAL-CON REL_INFO WHEN-AWARE PROC_DTMD proceedings heard/determined by judicial authority NOT—DTMD TERMIN no finding of guilt/liability against Plaintiff DAMAGES imprisonment ,TMP_CONSQ imprisonment direct result of prosecution REP-DEFAME PROC_TYPE criminal proceedings 8NKJTRADER BNK_DAMAGE WUP_TRD_CO WUP_DAMAGE OTRCVLLOSS NOCOSTLOSS INVESTIG Defendant fabricated evidence ADVICE OK MALICE- RES -EXTENT RES-HQW passed RES-WHO passed RES-TERMIN passed RES-TRADER RES-LOSS passed RES-CAUSE passed BES-mLLCE APPENDIX VI The schema frame c£the Cases database JTxame Cases Parent: Relation Slot: NAME Value String, 60 SI nt" • CITATION Value String, 50 SI .nt: COURT Value String, 55 Slot: YEAR Value Integer , 1 SI of • COURT TYPE Value String, 7 31uL. JURIS— Value String, 21 SI nt- • JURIS STAT Value String, 7 Slot: HELD-POR Value String, 9 SI of • WEIGHT Value Integer , 1 •S±©te: INVOLVMNT Value String, 49 SI nt: EXTENT Value String, 40 Slot: HOW Value String, 40 Slot; WHO Value String, 39 SI nt- • CAUSAL-CON Value String, 61 Slot: REL INFO Value String, 35 Slot: WHEN-AWARE Value String, 55 SI nt- • PROC DTMD Value String, 54 SI nt- • NOT—DTMD Value String, 62 Slot: TERMIN Value String, 65 S1 n1" • DAMAGES Value String, 32 Slot: IMP—CONSQ Value String, 43 SI nt- • REP-DEFAME Value String, 56 Slot: PROC TYPE Value String, 43 Slot: BNK TRADER Value String, 22 Slot: BNK DAMAGE Value String, 33 Slot: WUP TRD CO Value String, 19 Slot: SflJP DAMAGE! Value String, 33 .Slot: OTRCVLLOSS Value String, 46 Slot: NOCOSTLOSS Value String, 59 Slot: INVESTIG Value String, 64 Slot: ADVICE—OK Value String, 51 SI n1" • MALICE Value String, 41' Slot: RES-EXTENT? Value String, 6 Slot: RES-HOW Value String, 6 SI nt- • RES-WHO Value String, 6 Slot: RES-TERMIN Value String, 6 Slot: RES-TRADER JZalue String, 6 Slot: RES-LOSS Value String, 6 Slot: RES-CAUSE Value String, 6 Slot: RES-MALICE Value String., 6 149 A sample record frame of the Cssesdatabase MilIB # (32 ,1046) £grgnt: Cases NAME Value: CITATION Value: Slot; COURT Value: M o j : YEAR COURT TYPE JURIS— JURIS-STAT HELD-FOR WEIGHT INVOLVMNT EXTENT HOW WHO Slot; NOT—DTMD §Aas §Aafe SAafe §Aa& SAafe SAsfe1 SAsfe1 §Jka&: S l a t ; Siafe: REP-DEFAME P'R0C_TYPE BNKJTRADER BMK DAMAGE WUP~TRD_CO wup'damage OTRCVLLOSS NOCOSTLOSS INVESTIG ADVICE OK MALICE- RES -EXTENT RES-HOW RES-WHO RES-TERMIN RES-TRADER RES-LOSS RES-CAUSE RES-MALICE Value: Value: Value: Value: Value: Value: Value: Value: Value: Value: CAUSAL-CON Value: §Aa&: REL INFO Value: giafe: WHEN_AWARE Value: Slot: PROC DTMD Value: Value: f5io£: TERMIN Value: DAMAGES Value: IMP^CONSQ Value: Value: Value: Value: Va1ue: Value: Value: Value: Value: Value: Value: Value: Value: Value: Value: Value: Value: Value: Value: Value: REJ,D v WEBSTER (1967) 59 D.L.R. (2d) 189 Prince Edward Island Supreme Court 1967 Trial Prince Edward Island Canada Plaintiff 30 information sworn Defendant himself initiated proceedings proceedings not heard/ determined by judicial authority proceedings discontinued/ withdrawn threat of imprisonment threat of imprisonment indirect result of prosecution criminal Defendant concealed/ignored evidence personal passed passed passed passed passed passed n n n n . ^ n'n r u u. Ll Li d H, H b APPENDIX VI The schemaframe c£ the Matches database Frame: Matches Parent: Relation Slot; NAME Slot: CITATION Slot: MATCHES Slot: WEIGHT Value: String, 60 Value: String, 50 Value: Integer, 1 Value: Integer, 1 A sample record frame of the Matches database (at the end of a consultation where the jurisdiction has been set to British Columbia) Frame: #(2,234) Parent: Matches Slot: NAME Slot: CITATION Slot: MATCHES Slot: WEIGHT Value r REID v WEBSTER Value: (1967) 59 D.L.R. (2d) 189 Value: 10 Value: 30 < ' i / 1 1 n n n ft". ' i t b l s ) \i' '> * « > u u u u '• 0 i M D 151 APPENDIX VIII The questions asked at the user and correspondingframe and slot names IMMUNITY INVOLVEMENT INVOLVMNT Did the Defendant: 1. Give evidence in the proceedings brought against the Plaintiff? 2. Provide reports or information which were used as evidence in the proceedings against the Plaintiff? Yes No Why? IMMUNITY ~ EXTENT OF INVOLVEMENT EXTENT Did the Defendant: 1. Only give evidence? 2. Only pros'ida evidence, information or reports. 3. Assist with, promote or undertake the prosecution of the Plaintiff in some way other than or in addition to those in 1. and 2? 1 2 3 Why? HOW PROCEEDINGS INITIATED HOW What formal steps were taken to initiate or issue the proceedings? 1. In the case of criminal proceedings, ctajr̂ sffi were laid,; an information was sworn or similar. • •-. ••" 2. In the case of civil proceedings, a writ, statement of claim, a summons or similar was issued. 3. Application was made to a judicial authority. 4. None - no formal steps were taken and no legal proceedings were issued, . i; v' 1 2 3 4 Why? 152 WHO INITIATED PROCEEDINGS WHO Were the formal steps to initiate or issue the proceedings taken by: 1. The Defendant? 2. Person(s) other than the Defendant? 1 2 Why? CAUSAL COtEF CAUSAL_CON A screen will now be displayed containing statements about the possible relationship between the Defendant and the other person(s) who issued or took formal steps to initiate the proceedings. Please select the statement which is applicable to your facts situation. 1. The Defendant related information to a judicial oe. ministerial officer. 2. The Defendant was initially unaware of the issuing of the proceedings or the steps taken to issue th© proceedings but later became aware. 3. The proceedings were initiated at the request and/or with the authority of the Defendant. 4. The Defendant continued, adopted or ratified the proceedings. 5. The proceedings were initiated with the advice and/or the assistance of the Defendant. 6. During the proceedings, the Defendant ref:irrec* himself as, or intimated that he was, the prosecutor of the proceedings, or suggested that the proceedinas were his. 7. The Defendant caused or arranged for other persons to initiate or issue the proceedings. 8. None of the above. 1 2 3 4 5 6 7 8 Why? DEFENDANT RELATED INFORMATION REL_INFO Did the Defendant give a true and complete account of her knowledge of the situation to the officer? Yes No Why? 153 DEFENDANT INITIALLY UNAWARE WHEN_AWARE When the Defendant became aware of the proceedings, did the Defendant: 1. Disown the proceedings or refuse to interfere or become involved with them? 2. Take steps to continue, adopt or ratify the proceedings? 1 2 Why? PROCEEDINGS DETEKMIDMED PROC_DTMD Was there a final hearing or determination of the merits or . substantive issues of the proceedings? Yes No Why? OUTCOME OF PROCEEDINGS ISMIN What was the result of the hearing or determination? 1. The Plaintiff was fouryl to be guilty as charged or liable in the proceedings 2. There was a failure or refusal to make a finding about the innocence, guilt or liability of the Plaintiff. 3. The Plaintiff was convicted of a lesser offence. 4. The Plaintiff faced multiple charges and. was . convicted on some of the charges. 5. The Plaintiff m§ fi©t fUiity or not liable. 1 2 3 4 5 Why? Ok(FlO) Print(F8) 154 WAX NOT B E M M > NOT—DIMD Why was there no final hearing or determination of the proceedings? 1. The proceedings were discontinued, withdrawn, stayed or the prosecutor refused to proceed. 2. A compromise was entered into. 3. An order of habeas corpus was obtained. 4. The proceedings are still pending against the Plaintiff. 1 2 3 4 why? Ok(FlO) Print (F8) NOTE re answer 4: Proceedings which cannot be continued without starting afresh are not considered to be "pending". TYPE OF PROCEEDINGS PROC_TYPE What type of proceedinas were contemplated or initiated? 1. Warrant of execution 2. Warrant of apprehension or arrest 3. Search warrant 4. Application to wind up a company 5. Bankruptcy proceedings 6. Civil proceedings where the court lacked all power to award costs. eg. small claims proceedings. 7. civil proceedings other than 4., 5. or 6. 8. Criminal proceedings 1 2 3 4 5 6 7 8 Why? WINDING UP - TRADING CO WUP_TRD_CO Was the company sought to be wound up a trading company? Yes No Why? 155 WINDING UP ~ LOSS WUP_LOSS What loss or damage did the Plaintiff suffer as a result of the winding up proceedings? 1. Financial loss. eg. legal costs of defence, lost profits. 2. Damage to the Plaintiff's reputation. 1 2 Why? PLEASE NOTE: Courts view winding up proceedings against a trading company as an attack on the company's credit and reputation, thereby constituting sufficient damage to found an action in malicious prosecution. See the W y text. BANKRUPTCY ~ TRADER 8NK_TRADER Was the Plaintiff a trader or businessman? Yes No Why? BANKRUPTCY " LOSS BNK_LOSS What loss or damage did the Plaintiff suffer as a result of the bankruptcy proceedings? 1. Financial loss. eg. legal costs of defence, lost waaes. 2. Damage to the Plaintiff's reputation., • . l 2 Why? PLEASE NOTE: Courts view- bankruptcy proceedings against a trader as an attack on the trader's credit and reputation,' thereby constituting sufficient damage to found an action in malicious prosecution. See the Why text. 156 CIVIL - NO COSTS ~ LOSS NOCOSTMSS Did the Plaintiff suffer financial loss as a result of the inability of the judicial authority to award costs? Yes No Why? OTHER CIVIL ~ LOSS OTRCVLMSS What loss or damage did the Plaintiff suffer as a result of the civil proceedings? 1. Financial loss. eg. legal casts of defence, lost profits. 2. Damage to the Plaintiff's reputation. 3. Neither of the above. 1 2 3 Why? NATURE OF DAMAGE DAMAGES What loss or damage did the Plaintiff suffer as a result of the allegedly malicious prosecution? 1. Financial loss. eg. legal costs of defence, lost wages. 2. The Plaintiff was detained or imprisoned. 3. The Plaintiff was threatened with imprisonment. 4. Damage to the Plaintiff's reputation. 5. None of the above. 1 2 3 a 5 'Why? - IMPRISONMENT DIRECT CONSEQUENCE? IMP_CONSQ Was the imprisonment, detainment or potential imprisonment: 1. A direct result of the prosecution? 2. A risk merely ancillary to the prosecution? eg. imprisonment for failing to pay a fine. l 2 Why? REPUTATION REP—DEFAME Could the proceedings be viewed or interpreted in a manner so that the Plaintiff's reputation was not damaged? Yes No Why? PROPER JNVESJJCAIXON INVESTIG Did the Defendant, before or during the proceedings, : 1. Receive advice about the proceedings? 2. Fabricate evidence? 3. Conceal, ignore or wilfully disregard relevant evidence? eg. An explanation by the Plaintiff. 4. Act carelessly in the investigation or conduct of the proceedings brought against the Plaintiff? 5. None of the above. 1 2 3 4 5 Why? Ok(FlO) Print(F8) PLEASE NOTE: Question 3 does not imply that the Defendantis required to actively seek an explanation from the Plaintiff or to verify apparently accurate information, FDVICE SOUGHT ADVICE_OK Please select one of the following statements concerning the advice received by the Defendant. 1. The Defendant, before or during the proceedings, withheld or concealed relevant information from the advisor. 2. The advisor was not experienced or qualified to -advise on the proceedings. 3. It should have been obvious to the Defendant that the advice of the advisor was incorrect. 4. The Defendant did not follow the advice. '': 5. None of the above. 1 2 3 4 5 Why? 158 DEFENDANT'S MOTIVE MALICE Bv what sort of interest was the Plaintiff primarily motivated in bringing proceedings against the Plaintiff? 1. Financial or property. eg. Recovery of a debt, acquisition of property. 2. Personal satisfaction other than answer 5. eg. Dislike of a person, revenge, desire to embarrass4 3. Strategic considerations other than answer 4. eg. Dissuading legal action, silencing a person. 4. A desire to enforce the law merely for the sake of doing so or to pave the way for further legal pt©«<g>eelieh6js,, and n o t any o f tefee u l t -e i i -a f iHetiveS listed in 1. to 3. eg. The undertaking of a criminal prosecution to comply with a contractual obligation. 5. Motive not known. l 2 3 4 5 Why? motive unknown 1 If you cannot establish the motive of the Defendant, the court will sometimes infer a malicious motive where the circumstances are such that the Defendant's actions can only be explained by attributing a malicious motive. Evidence as to lack of reasonable and probable cause is often relevant in this regard. See: / BROWN V HAWKES [1891] 2 Q.B. 718 at 722 CARPENTER v MACDONALD (1979) 21 O.R. (2d) 165 at 184 ' ; ' HAWKER V HILLSBURGH [1942] 2 W.W.R.' 488 at 489 n n n n ~i J n u u UJJ U ' • 0 £ I APPENDIX IX Calculatingthe point scores (weight) of cases Maximum of 75 points Highest level court (e.g. S.C. of Canada) 70 Appeal level court 50 Trial level court 30 Add lOpoints €ortrial or appeal level cases local to the selectedjurisdiction. Deduct 15points for cases outside the selectedjurisdiction, ex c ept where the foreign jurisdictionis England, then deduct 10 points. h Add points for recently decided cases (assuming currentyear is 1990): 1990+ 5 points 1989 + 4 1988 + 3 1987+2 1986 + 1 An example of calculating the weight of a case Selectedjurisdiction: British Columbia Case: Roy \Prior [1971] A C . 470 (H. of L.) Highest level court (House of Lords) 70 LESS for foreign jurisdiction 10 TOTAL WEIGHT 60

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