malicious prosecution (use of process) – institution of a criminal or civil proceeding for an improper purpose, without probable cause

     This page is continued from Civil Law Self-Help >>>>  § 1 Tort or Breach of Contract >>>> Torts >>>> Types of Torts >>>> Abuse of Litigation Procedures:


malicious prosecution:

1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause.  *  The tort requires proof of four elements:

(1) the initiation or continuation of a lawsuit;
(2) lack of probable cause for the lawsuit’s initiation;
(3) malice; and
(4) favorable termination of the original lawsuit. Restatement (Second) of Torts §§ 674-81B (1977)

2. The tort claim resulting from the institution of such a proceeding.  *  Once a wrongful prosecution has ended in the defendant’s favor, he or she may sue for tort damages. — aka (in the context of civil proceedings) malicious use of process; (archaically) malicious institution of civil proceedings. [1]

1. A criminal prosecution begun in malice, without probable cause to believe it can succeed, and finally ending in failure. 34 Am J1st Mal Pros § 2.

An action for damages brought by one against whom a criminal prosecution, civil suit, or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit, or other proceeding in favor of the defendant therein. Shedd v Patterson, 302 III 355, 134 NE 705, 26 ALR 1004; 34 Am J1st Mal Pros § 2.

An action for the wrong of instituting a civil action without probable cause, especially where there is in such action a seizure of property or of the person of the defendant or other circumstances giving rise to special damages. 34 Am J1st Mal Pros § 10. — aka malicious prosecution of civil action. [2]

1. A criminal prosecution or civil suit commenced maliciously and without probable cause.  After the termination of such a prosecution or suit in the defendant’s favor, the defendant has the right to bring an action against the original plaintiff for the tort of “malicious prosecution.” [3]

     Excerpt from Martin L. Newell’s A Treatise on the Law of Malicious Prosecution, False Imprisonment, and the Abuse of Legal Process (1892):

     “Malicious prosecution — The action of, defined. — A judicial proceeding, instituted by one person against another from wrongful or improper motives, and without probable cause to sustain it.  It is usually called a malicious prosecution; and an action for damages for being subjected to such a suit is called an action for malicious prosecution.  In strictness, the prosecution might be malicious, that is, brought from unlawful motives, although founded on good cause.  But it is well established that unless want of probable cause and malice concur no damages are recoverable.  However blameworthy was the prosecutor’s motives, he cannot be cast in damages if there was probable cause for the complaint he made. Hence, the term usually imparts a causeless as well as an ill-intended prosecution.  It commonly, but not necessarily, means a prosecution on some charge of crime. [10]

   Excerpt from J.F. Lever’s “Means, Motives and interests in the Law of Torts,” in Oxford Essays in Jurisprudence (A.G. Guest ed., 1961):

     “The mental element which is requisite to found liability for malicious prosecution is similar to that which is sufficient to destroy qualified privilege in libel: it amounts to an abuse of the right to prosecute which is based on the public interest in bringing criminals to book. The abuse here arises from the fact that the prosecution is animated by a desire to use the criminal law for some purpose for which it is not intended.  It is particularly unfortunate that the word ‘malice’ was ever used in this context for it is quite possible for a prosecutor to have been inspired by personal dislike of the plaintiff and by a desire for vengeance against him and yet not be liable for malicious prosecution; and this may happen even where the proceedings were instituted without reasonable and probable cause, if the prosecutor honestly believed that he had a good case and that he could therefore satisfy his animosity against the plaintiff by obtaining his conviction. [11]

    Excerpt from 52 Am. Jur. 2d Malicious Prosecution § 2, at 187 (1970):

     “The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect the improper use oi a regularly issued process.  For instance, the initiation of vexatious civil proceedings known to be groundless is not abuse of process, but is governed by substantially the same rules as the malicious prosecution of criminal proceedings. [12]

malicious use of process – In essence a form of malicious prosecution. The use of civil process without probable cause. Nix v Goodhil, 95 Iowa 282, 63 NW 701. [2]

1. The use of process for a purpose for which it was intended, but out of personal malice or some other unjustifiable motive (EXAMPLE: to extort money) and without probable cause.  it is, in effect, a form of malicious prosecution. [3]

Various Forms of Malicious Prosecution
(and similar acts):

abuse of process – improper, intentional, tortious use of civil or criminal process to obtain a result that is either unlawful or beyond the purpose for which such process was designed. — aka abuse of legal process; malicious abuse of process; malicious abuse of legal process; wrongful process; wrongful process of law.

malicious arrest – causing an arrest by maliciously bringing a suit upon false charges, or maliciously making a  false affidavit, or arresting without probable cause for an improper purpose.

malicious defense – defendant’s use of unfair, harassing, or illegal tactics to advance a frivolous or unmeritorious defense.

discovery abuse – misuse of the pretrial discovery process, especially by

(1) requesting unnecessary information;
(2) requesting information for an improper purpose; or
(3) failing to respond adequately to a proper discovery request.

— aka abuse of discovery.

  • sanctions tort – a means of recovery for another party’s discovery abuse, whereby the judge orders the abusive party to pay a fine to the injured party for the discovery violation.

abuse of power – misuse or improper exercise one’s authority in a way that is tortious, unlawful, or outside its proper scope.

  • abuse of discretion – an adjudicator or appellate court’s failure to exercise sound, reasonable, and legal decision-making, unsupported by the evidence, thereby leading to a denial of justice.
  • arbitrary and capricious – a concept which permits a court to substitute its judgment for that of an administrative agency’s unreasonable decision which ignores the law or facts of the case. — aka arbitrary.
    • capricious (caprice) – contrary to the evidence or established rules of law; whimsical rather than logistic.

vexatious suit – instituted maliciously and without good grounds, meant to create trouble and expense for the party being sued. — aka vexatious litigation; vexatious lawsuit; vexatious proceeding.

official misconduct – a public officer’s violation of duty by malfeasance, misfeasance, or nonfeasance.— aka misconduct in office; misbehavior in office; malconduct in office; misdemeanor in office; corruption in office; official corruption; political corruption; malversation.

  • malfeasance – a wrongful, unlawful, or dishonest act; especially, wrongdoing or misconduct by a public official.
  • misfeasance – the performance of a duty or act which one ought or has a right to do, but in a manner such as to infringe upon the rights of others.
  • nonfeasance – the negligent failure to act when a duty to act exists.

malice exception – a limit on public officials’ qualified immunity, whereby they can face civil liability for willfully exercising discretion in a way that violates a known or well-established right.

  • qualified immunity – a public official’s immunity from civil liability when performing a discretionary function, as long as the conduct does not violate a clearly established constitutional or statutory right. — aka prima facie privilege


Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.


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