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Malicious prosecution is a
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
intentional
tort A tort, in common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dict ...

tort
. 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 o ...
, 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 member ...
or
criminal In ordinary language, a crime is an unlawful act punishable by a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper ...
) that is (2) brought without
probable cause In United States criminal law Responsibility for criminal law and criminal justice in the United States is shared between the State governments of the United States, states and the Federal government of the United States, federal government. So ...
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 Prosecutorial immunity is the absolute immunityIn Law of the United States, United States law, absolute immunity is a type of sovereign immunity for government officials that confers complete legal immunity, immunity from criminal prosecution and s ...
and judicial immunity. 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 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."


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 State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspaper), a daily newspaper i ...

the Crown
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 a publication of arts, literature and miscellaneous interests. Its history ranges across nearly three centuries and several reincarnations, publishing writers including William Wordsworth, William S. Burroughs, Winston ...
'' 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 The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state ...
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 Law enforcement organization, constituted body of Law enforcement officer, persons empowered by a State (polity), state, with the aim to law enforcement, enforce the law, to ensure the safety, health and possessions of citize ...

police
or
Crown attorney Crown attorneys or crown counsel (or, in Alberta and New Brunswick, crown prosecutors) are the prosecutors in the legal system of Canada Canada is a country in the northern part of North America. Its Provinces and territories of Canada, ...
s or the
Attorney General #REDIRECT Attorney general In most common law In law, common law (also known as judicial precedent or 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 opinio ...

Attorney General
, 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 to solve relevant and real-world problems, guided by a conception and implemented by programs as a course of action created and/or enacted, typically by a government A government is th ...
, 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)).


See also

*
Barratry (common law) Barratry ( ) is a legal term with several meanings. In common law, barratry is the offense committed by people who are "overly officious in instigating or encouraging prosecution of groundless litigation" or who bring "repeated or persistent acts ...
* Frivolous lawsuit *
Immunity from prosecution Legal immunity, or immunity from prosecution, is a legal status wherein an individual or entity cannot be held liable for a violation of the law, in order to facilitate societal aims that outweigh the value of imposing liability in such cases. Suc ...
*
Legal abuse Legal abuse refers to unfair or improper legal action initiated with selfish or malicious intentions. Abuse can originate from nearly any part of the legal system, including frivolous Frivolous litigation is the use of legal processes with appa ...
*
Miscarriage of justice A miscarriage of justice occurs when a grossly unfair outcome is made in a criminal In ordinary language, a crime is an unlawful act punishable by a state State may refer to: Arts, entertainment, and media Literature * ''State Magazin ...
* Selective prosecution *
Pervert the course of justice Perverting the course of justice is an offence committed when a person prevents justice Justice, one of the four cardinal virtues, by Vitruvio Alberi, 1589–1590. Fresco, corner of the vault, studiolo of the Virgin of Mercy, Madonna of Merc ...
*
Strategic lawsuit against public participation A strategic lawsuit against public participation (SLAPP), SLAPP suit, or intimidation lawsuit is intended to censor Censor may refer to: People with the name *Cato the Elder, also known as Cato the Censor (Marcus Porcius Cato, 234–149 BC), ...
*
Vexatious litigation Vexatious litigation is legal action which is brought solely to harass or subdue an adversary An adversary is generally considered to be a person, group, or force that opposes and/or strike (attack), attacks. Adversary may also refer to: * Satan ...


References

{{abuse
Legal terminology {{CatAutoTOC Terms Jargon Terminology Terms Terminology Terminology is a general word for the group of specialized words or meanings relating to a particular field, and also the study of such terms and their use. This is also known as termino ...
Abuse of the legal system{{Cat main, Legal abuse Articles that pertain, directly or indirectly, to improper use of the legal system, or to abuse ''by'' the legal system, or to allegations thereof. Law by issue Legal ethics Practice of law Sociology of law Lawsuits Abus ...
Tort law