Malicious prosecution

This article has multiple issues. Please help improve it or discuss these issues on the talk page. (Learn how and when to remove these messages) The examples and perspective in this article deal primarily with the United States and Canada and do not represent a worldwide view of the subject. You may improve this article, discuss the issue on the talk page, or create a new article, as appropriate. (August 2013) (Learn how and when to remove this message) This article includes a list of general references, but it lacks sufficient corresponding inline citations. Please help to improve this article by introducing more precise citations. (June 2016) (Learn how and when to remove this message) This article may be too technical for most readers to understand. Please help improve it to make it understandable to non-experts, without removing the technical details. (September 2019) (Learn how and when to remove this message) (Learn how and when to remove this message)

Malicious prosecution is a common law intentional tort. 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."^[1]