Solicitors retained by a client to prepare a report about potential legal proceedings against a third party do not owe a duty of care in tort to that third party, even where it is foreseeable that the report will be used in a way that harms the third party. The test for instigation of prosecution in malicious prosecution is not confined to requiring that the third party 'virtually drove' the prosecution or rendered the exercise of prosecutorial discretion 'virtually impossible'; the rule as expressed by Dixon J in Brain remains good law. Whether general damages for loss of reputation are recoverable in conspiracy to injure claims remains an open question.
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