Malicious prosecution is a

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

intentional

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

. Like the tort of

abuse of process An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing ...

, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (

civil Civil may refer to: *Civic virtue, or civility *Civil action, or lawsuit * Civil affairs *Civil and political rights *Civil disobedience *Civil engineering *Civil (journalism), a platform for independent journalism *Civilian, someone not a membe ...

criminal In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...

) that is (2) brought without

probable cause In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition o ...

and (3) dismissed in favor of the victim of the malicious prosecution. In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation of criminal proceedings, while the term "malicious use of process" denotes the wrongful initiation of civil proceedings. Criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines of

prosecutorial immunity In United States law, absolute immunity is a type of sovereign immunity for government officials that confers complete immunity from criminal prosecution and suits for damages, so long as officials are acting within the scope of their duties. The S ...

and

judicial immunity Judicial immunity is a form of sovereign immunity, which protects judges and others employed by the judiciary from liability resulting from their judicial actions. Though judges have immunity from lawsuit, in constitutional democracies judicial m ...

. Moreover, the mere filing of a complaint cannot constitute an abuse of process. The parties who have abused or misused the process have gone beyond merely filing 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 California Supreme Court in the case of ''Sheldon Appel Co. v. Albert & Oliker'', 47 Cal. 3d 863, 873 (1989) observed: "While the filing of

frivolous lawsuit Frivolous litigation is the use of legal processes with apparent disregard for the merit of one's own arguments. It includes presenting an argument with reason to know that it would certainly fail, or acting without a basic level of diligence i ...

s 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."

Origins

The tort originates in the (now defunct) legal maxim that "the King pays no costs"; that is,

the Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...

could not be forced to pay the legal costs of a person it prosecuted, even if that person was found innocent. As ''

The London Magazine ''The London Magazine'' is the title of six different publications that have appeared in succession since 1732. All six have focused on the arts, literature and miscellaneous topics. 1732–1785 ''The London Magazine, or, Gentleman's Monthly I ...

'' stated in 1766: "if a groundless and vexatious prosecution be commenced in the King's name, his ministers who commenced, or advised commencing that prosecution, ought at least to be obliged to pay the costs which an innocent subject has thereby been put to".

U.S. use of English Rule

Sixteen

U.S. state In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sove ...

s 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).

Canadian law

Canadian jurisprudence has changed in that if any individual takes legal action that meets the above criteria, they may be sued. Legal action may be taken against the

police The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and t ...

Crown attorney Crown attorneys or crown counsel (or, in Alberta and New Brunswick, crown prosecutors) are the prosecutors in the legal system of Canada. Crown attorneys represent the Crown and act as prosecutor in proceedings under the Criminal Code and vario ...

s or the

Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...

, as they are no longer exempt from suit. The tort of malicious prosecution was reviewed in 2009 by the Supreme Court of Canada in '' Miazga v. Kvello Estate'', and specifically how it applied to public prosecutors in Canada. The court outlined the four required elements for the tort of malicious prosecution: (i) The prosecution must be initiated by the defendant; (ii) The prosecution must be terminated in the plaintiff's favour. (iii) There was a lack of reasonable and probable grounds to commence or continue the prosecution; and (iv) The defendant was motivated to commence or continue to the prosecution due to malice. In 2014, the Quebec Court of Appeal held that the contents of plea bargaining negotiations held in the context of criminal cases could be admitted as evidence in the context of a civil suit for malicious prosecution, despite the general evidentiary rule prohibiting adducing settlement discussions into proof at trial. More specifically, the Court held that introducing into evidence the contents of such negotiations was possible when it tended to demonstrate that the prosecution initiated or maintained criminal charges on the basis of improper motives.

Limitations

Notably, the tort of malicious prosecution only protects the right of defendants to be free of frivolous lawsuits brought by malicious plaintiffs. For a variety of reasons grounded in

public policy Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public p ...

, courts have consistently refused to authorize the converse — a tort of malicious defense which would protect the right of plaintiffs to be free of frivolous defenses raised by defendants.''Bertero v. National General Corp.'', 13 Cal. 3d 43, 52, 529 P.2d 608, 118 Cal. Rptr. 184 (1974) (citing ''Ritter v. Ritter'', 381 Ill. 549, 46 N.E. 2d 41 (1943)).

References

{{abuse Legal terminology Abuse of the legal system Tort law

Origins

U.S. use of English Rule

Canadian law

Limitations

See also

References