Malicious prosecution

Malicious prosecution is a common law intentional tort. While similar to the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting or pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution. In some jurisdictions, "malicious prosecution" is reserved for the wrongful initiation of criminal proceedings, while "malicious use of process" refers to the wrongful initiation of civil proceedings.

Criminal prosecuting attorneys, as well as judges, are normally protected, by doctrines of prosecutorial immunity and judicial immunity, from tort liability for malicious prosecution.

The mere filing of a complaint cannot constitute an abuse of process. The parties who have abused or misused the process, have gone beyond the mere filing of a lawsuit. The taking of an appeal, even a frivolous one, is not enough to constitute an abuse of process. The mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action.

Declining to expand the tort of malicious prosecution, a unanimous Supreme Court in Sheldon Appel, supra, 47 Cal.3d at page 873, observed: "While the filing of frivolous lawsuits is certainly improper and cannot in any way be condoned, in our view the better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself, rather than through an expansion of the opportunities for initiating one or more additional rounds of malicious prosecution litigation after the first action has been concluded." (Accord Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 638-640[255 Cal.Rptr. 18]; see also Tellefsen v. Key System Transit Lines, supra, 198 Cal.App.2d at p. 615 [Court of Appeal has remedies for frivolous appeals]; Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1122-1123 [255 Cal.Rptr. 315]


English Rule

Sixteen states require another element of malicious prosecution. This element, commonly called the English Rule, states that, in addition to fulfilling all other malicious prosecution elements, one must also prove injury other than the normal downside of being sued. This rule is limited to equitable damages, such as loss of profit, and excludes damages that cannot be measured by the law (e.g., damage to reputation).


In Canadian Law

The Canadian rules have been changed in that if any individual takes legal action that has the above criteria met may take action against police or the Crown Attorney (The Attorney General). The C.A. used to be exempt from malicious prosecution and abuse of process. This is no longer the case. This may be looked up @ CANLII.




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