Malicious Prosecution

People who attempt to redress their grievances against others in court sometimes bring actions against the wrong people by mistake or intentionally. In certain circumstances, a defendant may recover against the plaintiff who improperly brought him to court.

Who may be liable

A plaintiff who improperly initiates civil proceedings in his own name or in the name of a third person to enforce a claim of his own or a claim of the third person may be liable for malicious prosecution.

A defendant may also be liable to a plaintiff for malicious prosecution if he improperly files a counterclaim to the plaintiff's cause of action because a counterclaim is an initiation of civil proceedings.

A plaintiff who procures the initiation of civil proceedings is just as liable as the one who initiates them.

Also, a person who continues a civil proceeding for an improper purpose after he has learned that there is no probable cause for the proceeding becomes liable as if he had then initiated the proceeding.

Conduct giving rise to liability

A defendant must show that a plaintiff initiated civil proceedings against him without probable cause and for a purpose other than securing the proper adjudication of a claim and that the proceedings, except when they are ex parte, terminated in favor of the defendant.

A plaintiff has probable cause to initiate civil proceedings if he reasonably believes in the existence of the facts upon which the claim is based and either correctly or reasonably believes that the claim may be valid or believes it is valid in reliance upon the advice of counsel. A decision in favor of the plaintiff is conclusive evidence of probable cause, but a decision adverse to the plaintiff is not evidence of lack of probable cause. A withdrawal of civil proceedings by the plaintiff or their dismissal because of his failure to prosecute may or may not be evidence of lack of probable cause, depending upon the circumstances.

A plaintiff institutes civil proceedings for a purpose other than securing the proper adjudication of a claim if he is aware that his claim is not meritorious, if he begins the proceedings because of hostility or ill will, if he begins the proceedings to deprive the defendant of a beneficial use of his property, or if he is attempting to force a settlement that has no relation to the merits of the claim. A defendant has an improper purpose if he files a counterclaim merely to delay the plaintiff's claim.

Civil proceedings may be terminated in favor of a defendant by the favorable adjudication of the claim, the withdrawal of the proceedings by the plaintiff, or a dismissal of the proceedings because of the plaintiff's failure to prosecute. If an appeal is taken, the proceedings are not terminated until the final disposition of the appeal.


A defendant may be entitled to recover damages for the harm to his reputation, emotional distress, the harm caused by any arrest or imprisonment, dispossession from the use of his land or things, the expenses for his defense, and certain monetary losses caused by the proceedings.


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