Malicious prosecution
Encyclopedia
Malicious prosecution is a common law
intentional tort
, while like the tort of abuse of process
, its elements include (1) intentionally (and maliciously
) instituting and 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, 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 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."
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).
has changed in that if any individual takes legal action that meet the above criteria, they may be sued. Legal action may be taken against the police
or the Crown Attorney
or the Attorney General, as they are no longer exempt from suit.
The tort of malicious prosecution was recently reviewed 2009 by the Supreme Court of Canada in Miazga v. Kvello Estate
, and specifically how it applied to public prosecutors in Canada.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
intentional tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
, while like the tort of abuse of process
Abuse of process
Abuse of process is a cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process not justified by the underlying legal action.It is a common law intentional tort...
, its elements include (1) intentionally (and maliciously
Malice
Malice may refer to:* Malice , a legal term describing the intent to harm* Jerry Tuite , American professional wrestler also known by the ring name Malice-Entertainment:...
) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
or criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
) that is (2) brought without probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
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 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."
US use of English Rule
Sixteen U.S. stateU.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
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 jurisprudenceLaw of Canada
The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
has changed in that if any individual takes legal action that meet the above criteria, they may be sued. Legal action may be taken against the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
or the Crown Attorney
Crown attorney
Crown Attorneys or Crown Counsel are the prosecutors in the legal system of Canada.Crown Attorneys represent the Crown and act as prosecutor in proceedings under the Criminal Code of Canada...
or the Attorney General, as they are no longer exempt from suit.
The tort of malicious prosecution was recently reviewed 2009 by the Supreme Court of Canada in Miazga v. Kvello Estate
Miazga v. Kvello Estate
Miazga v. Kvello Estate, is a leading decision of the Supreme Court of Canada on how the tort of malicious prosecution applies to Crown attorneys and other public prosecutors. Specifically, the court held that there is no requirement for a public prosecutor to have a subjective belief that an...
, and specifically how it applied to public prosecutors in Canada.
See also
- BarratryBarratryBarratry is the name of four legal concepts, three in criminal and civil law, and one in admiralty law.* Barratry, in criminal and civil law, is the act or practice of bringing repeated legal actions solely to harass...
- Vexatious litigationVexatious litigationVexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a...
- Frivolous lawsuit
- Immunity from prosecution
- Selective prosecutionSelective prosecutionIn jurisprudence, selective prosecution is a procedural defense in which a defendant argues that they should not be held criminally liable for breaking the law, as the criminal justice system discriminated against them by choosing to prosecute...
- Legal abuseLegal abuseLegal abuse refers to abuses associated with both civil and criminal legal action. Abuse can originate from nearly any part of the legal system, including frivolous and vexatious litigants, abuses by law enforcement, incompetent, careless or corrupt attorneys and misconduct from the judiciary...