Malicious Prosecution

TABLE OF CONTENTS

Chapter 1

1. Introduction ………………………………………………………………………… 6 - 8

1. Meaning of Malicious Prosecution
2. Malicious Prosecution distinguished from related actions – Abuse of Process and False Imprisonment

Chapter 2

1. Essentials of Malicious Prosecution ………………………………………………….. 9

1. Elements of action for malicious prosecution

Chapter 3

1. Grounds of Proceedings ………………………………………………………… 10 - 15

1. Proceedings on which action may be based - Criminal proceedings
2. Proceedings on which action may be based - Civil action
3. Proceedings on which action may be based - Cross complaint or counterclaim
4. Proceedings on which action may be based - Administrative and disciplinary proceedings.

Chapter 4

1. Responsibilities of Plaintiff and Defendant ……………………………………. 16 - 20

1. Defendant's responsibility for institution of prior proceeding: persons Liable
2. Termination of prior proceeding in plaintiff's favor

Chapter 5

1. Causes and Intention …………………………………………………………….. 21 - 24

1. Lack of Probable cause for Prior Proceeding
2. Malice
3. Proof of Defendant’s Initiation of Criminal Proceedings against Plaintiff without Probable Cause and with Malice

Chapter 6

1. Defence against Malicious Prosecution …………………………………………. 25 - 27

1. Defenses
2. Burden of Proof and Evidence

Chapter 7

1. Remedies Available ………...…………………………………………………….. 28 - 31

1. Damages
2. Elements of damages: Guide and Checklist

Chapter 8

1. Case Law ………………………………………………………………………… 32 - 34

1. Court rejects Malicious Prosecution claim against EPA

Conclusion ……………………………………………………………………………………. 35

Bibliography ……….…………………………………………………………………………. 36

Chapter 1

INTRODUCTION

Whether a prior legal proceeding, which was instituted or abetted by the defendant and which has terminated in the plaintiff's favor, was brought without probable cause and with malice. This fact question may arise in a civil action for the recovery of damages sustained as a result of the defendant's institution or instigation of prior criminal, civil, administrative, or disciplinary proceedings against the plaintiff.

1. MEANING OF MALICIOUS PROSECUTION

The term "malicious prosecution" is used to refer both to a proceeding which was instituted maliciously and to a cause of action arising there from. With respect to the original proceeding, malicious prosecution may be defined, “as an action that was instituted with malice and without probable cause and which terminated unfavorably to the party who instigated the action.” 

The cause of action for malicious prosecution is the remedy in tort provided for the recovery of damages incurred as a result of the original proceeding.

This project is concerned with the cause of action for malicious prosecution, in that it deals with the proof essential to establish the plaintiff's right to recover damages resulting from a proceeding maliciously instituted or abetted by the defendant. Since such proof basically amounts to proof that the original proceeding was maliciously prosecuted, the article necessarily deals with both meanings of the term "malicious prosecution."

It has been noted that there are competing policy considerations affecting the attitude of the courts toward the action for malicious prosecution. The first consideration is the desire of the courts to provide a remedy for every wrong. Furthermore, in addition to the harm done an individual by the malicious institution of legal proceedings, society in general is harmed, since the malicious prosecution of an action clogs the courts and threatens the efficient administration of justice.^[1] 

However, the courts also desire to keep the legal system open for meritorious actions, and it is sometimes feared that the threat of a malicious prosecution action may deter the filing of good faith lawsuits. The courts generally seem to give greater weight to this latter consideration, as a result of which the action for malicious prosecution is not favored by the law and is severely restricted as a remedy.

Although the tort of malicious prosecution originally applied to criminal proceedings only, it has generally been extended to the initiation of civil proceedings as well. Furthermore, an action for malicious prosecution may be based on the filing of a cross complaint, and, under appropriate circumstances, on the institution of administrative or disciplinary proceedings. Although the elements of the cause of action are substantially the same regardless of the nature of the prior action, there are some differences in the proof required to sustain the action, notably in the area of damages.

1. MALICIOUS PROSECUTION DISTINGUISHED FROM RELATED ACTIONS – ABUSE OF PROCESS AND FALSE IMPRISONMENT

Although malicious prosecution has frequently been confused with abuse of process, the two are substantially different and independent causes of action. The basic distinction between the two is that an action for malicious prosecution is concerned with maliciously causing process to issue, while abuse of process is concerned with the improper use of a regularly issued process.

In other words, malicious prosecution involves the use of process for its ostensible purpose, but without probable cause, whereas abuse of process involves the use of legal process in a manner or for a purpose not intended by law.

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