{"id":14983,"date":"2018-02-28T19:02:35","date_gmt":"2018-02-28T19:02:35","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=14983"},"modified":"2018-07-08T23:31:02","modified_gmt":"2018-07-08T23:31:02","slug":"14983-2","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=14983","title":{"rendered":"malicious prosecution (use of process) – institution of a criminal or civil proceeding for an improper purpose, without probable cause"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0 This page is continued from<\/span> Civil Law Self-Help<\/a> >>>><\/span>\u00a0 \u00a7 1 Tort or Breach of Contract\u00a0<\/em><\/a>>>>><\/span> Torts<\/a>\u00a0>>>><\/span> Types of Torts<\/a>\u00a0>>>> Abuse of Litigation Procedures<\/a>:<\/span><\/span><\/strong><\/span><\/p>\n

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malicious prosecution<\/span>:<\/span>
\n<\/strong>(17c)<\/span><\/p>\n

1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause<\/a>.\u00a0 *\u00a0 The tort requires proof of four elements: <\/strong><\/span><\/p>\n

(1) the initiation or continuation of a lawsuit;
\n(2) lack of probable cause<\/a> for the lawsuit\u2019s initiation;
\n(3) malice<\/a>; and
\n(4) favorable termination of the original lawsuit. Restatement (Second) of Torts<\/em> \u00a7\u00a7 674-81B (1977)<\/span>.\u00a0 <\/strong><\/span><\/p>\n

2. The tort claim resulting from the institution of such a proceeding.\u00a0 *\u00a0 Once a wrongful prosecution has ended in the defendant\u2019s favor, he or she may sue for tort damages.<\/strong> \u2014 aka (in the context of civil proceedings) malicious use of process<\/strong><\/em><\/span>; (archaically) malicious institution of civil proceedings<\/strong><\/em><\/span>. [1]<\/span><\/p>\n

1. A criminal prosecution begun in malice, without probable cause<\/a> to believe it can succeed, and finally ending in failure. 34 Am J1st Mal Pros \u00a7<\/span> 2<\/span>. <\/strong><\/span><\/p>\n

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<\/a>, after the termination of such prosecution, suit, or other proceeding in favor of the defendant therein. Shedd v Patterson<\/em>, 302 III 355, 134 NE 705, 26 ALR 1004; 34 Am J1st Mal Pros \u00a7 2<\/span>. <\/strong><\/span><\/p>\n

An action for the wrong of instituting a civil action without probable cause<\/a>, especially where there is in such action a seizure of property or of the person of the defendant or other <\/strong>circumstances giving rise to special damages. 34 Am J1st Mal Pros \u00a7 10<\/span>. <\/strong>\u2014 aka malicious prosecution of civil action<\/strong><\/em><\/span>. [2]
\n<\/span><\/p>\n

1. A criminal prosecution or civil suit commenced maliciously and without probable cause<\/a>.\u00a0 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.”<\/strong> [3]<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 Excerpt from Martin L. Newell’s A Treatise on the Law of Malicious Prosecution, False Imprisonment, and the Abuse of Legal Process<\/em><\/a><\/span> (1892):<\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 \u201cMalicious prosecution \u2014 The action of, defined. \u2014 A judicial proceeding, instituted by one person against another from wrongful or improper motives, and without probable cause<\/a> to sustain it.\u00a0 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.\u00a0 In strictness, the prosecution might be malicious, that is, brought from unlawful motives, although founded on good cause.\u00a0 But it is well established that unless want of probable cause and malice concur no damages are recoverable.\u00a0 However blameworthy was the prosecutor\u2019s motives, he cannot be cast in damages if there was probable cause<\/a> for the complaint he made. Hence, the term usually imparts a causeless as well as an ill-intended prosecution.\u00a0 It commonly, but not necessarily, means a prosecution on some charge of crime.<\/span>“<\/strong> [10]<\/span><\/p>\n

\u00a0\u00a0 Excerpt from J.F. Lever’s \u201cMeans, Motives and interests in the Law of Torts,” in Oxford Essays in Jurisprudence<\/em><\/a><\/span> (A.G. Guest ed., 1961):<\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 \u201cThe 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.\u00a0 It is particularly unfortunate that the word \u2018malice\u2019 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<\/a>, 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.<\/span>“<\/strong> [11]<\/span><\/p>\n

\u00a0\u00a0\u00a0 Excerpt from 52 Am. Jur. 2d Malicious Prosecution\u00a0\u00a7 2, at 187 (1970):<\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 \u201cThe distinction between an action for malicious prosecution and an action for abuse of process is that a <\/span><\/strong>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.\u00a0 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.<\/span>\u201c<\/strong> [12]<\/span><\/p>\n

malicious use of process<\/span> – In essence a form of malicious prosecution. The use of civil process without <\/strong>probable cause<\/a>. Nix v Goodhil<\/em>, 95 Iowa 282, 63 NW 701<\/span>. <\/strong>[2]<\/span><\/p>\n

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<\/a>.\u00a0 it is, in effect, a form of malicious prosecution.\u00a0<\/span><\/strong>[3]<\/span><\/p>\n

Various Forms of Malicious Prosecution<\/span><\/strong><\/span>
\n(and similar acts):<\/span><\/strong><\/p>\n

abuse of process<\/span><\/a>\u00a0– 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.<\/strong> \u2014 aka abuse of legal process<\/span><\/strong><\/em>; malicious abuse of process<\/span><\/strong><\/em>; malicious abuse of legal process<\/strong><\/span><\/em>; wrongful process<\/span><\/strong><\/em>; wrongful process of law<\/span><\/strong><\/em>.<\/span><\/p>\n

malicious arrest<\/span><\/strong><\/a> \u2013 causing an arrest by maliciously bringing a suit upon false charges, or maliciously making a \u00a0false affidavit<\/a>, or arresting without probable cause<\/a> for an improper purpose.<\/strong><\/span><\/span><\/p>\n

malicious defense<\/span><\/a> – defendant’s use of unfair, harassing, or illegal tactics to advance a frivolous or unmeritorious defense.<\/span><\/strong><\/span><\/p>\n

discovery abuse<\/span><\/a> – misuse of the pretrial discovery process, especially by<\/span><\/strong><\/p>\n

(1) requesting unnecessary information;<\/b><\/span><\/span>
\n(2) requesting information for an improper purpose; or<\/b><\/span><\/span>
\n(3) <\/b><\/span>failing<\/b><\/span>\u00a0to respond adequately to a proper discovery request.<\/b><\/span><\/span><\/span><\/p>\n

\u2014 aka\u00a0<\/span>abuse of discovery<\/em><\/span><\/strong><\/span>.<\/em><\/span><\/p>\n