Essentials of Malicious Prosecution

Essentials of Malicious Prosecution. Malicious prosecution occurs when one party has knowingly and with malicious intent initiated a baseless litigation against another party. This includes both criminal charges and civil claims, for which the cause of action is essentially the same. The main difference between claims based on criminal and civil actions has to do with evidence.

However, most states allows recovery for claims based on civil suits as long as the plaintiff (the defendant in the original case) is able to prove malicious intent and lack of probable cause. But some states require some direct interference with, or injury to, the plaintiff apart from the mere hassle of answering a civil complaint. For example, defamation resulting from a malicious lawsuit, such as lost business from a damaged reputation, typically would be considered a compensable injury.

See also Defenses to Trespass, False Imprisonment, Trespass to the person, Strict Liability, Mental Elements in Tort.

The elements of Malicious Prosecution claim

To succeed in an action for malicious prosecution, the plaintiff must prove:

Courts generally agree on the elements required for a malicious prosecution claim, but some states combine elements or arrange them differently. The six elements of this claim are as follows:

  1. The institution or continuation of a civil or criminal legal proceeding against the plaintiff;
  2. By, or abetted by, the defendant (the prosecutor or plaintiff in the malicious action);
  3. Termination of the prior proceeding in favor of the plaintiff (for instance, the case was dismissed);
  4. Absence of probable cause for instituting the prior proceeding;
  5. Malice as the primary purpose for the prior action; and
  6. Injury or damage to the plaintiff as a result of the prior action.

Failure to establish any one or more of these requirements will result in the plaintiff’s losing his action for malicious prosecution. See the case of Aubin V. Ehunaku (1960) G.L.R. 167, at p. 168.

Each of the requirements must now be considered in turn.

Institution of prosecution:

The plaintiff must show first of all that the defendant instituted the prosecution against him. As Lewis J.S.C. said in the Supreme Court in Mandilas & Karaberis Ltd. V. Apena (1969) N.M.L.R. 199 pg. 203: (1969) 1 All N.L.R. 390, at p.394
“…in our view it is clear from Danby V. Beardsly that, to succeed, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff…”

The following principles as to what constitutes “setting the law in motion” have been established by the authorities:

  1. It is not necessary that the defendant should have conducted the prosecution: It is sufficient for liability if, for example, he laid an information before the magistrate on the basis of which the magistrate issued a summon against the plaintiff or a warrant for his arrest. See the case of Inneh V. Aruegbom (1952) 14 W.A.C.A. 73; In such a case, the defendant cannot escape liability by pleading that the subsequent prosecution of the plaintiff was initiated at the discretion of the magistrate, nor that it was technically conducted by the police. See the case of Malz V. Rosen (1966) W.L.R. 1008.
  2. At one time it was thought that the defendant would not be liable unless the prosecution could be said to have actually commenced, for example, by the issue of a summons by the magistrate or by the preferring of a bill of indictment.

It was held by the Judicial Committee of the Privy Council in Mohammed Amin V. Bannerjee (1947) A.C. 322. However, that it was sufficient for liability if the proceedings reached a point at which it could be said that the plaintiff’s reputation was prejudiced, for instance where, without issuing a summons or warrant, the magistrate inquired into the merits of the charge in open court and eventually dismissed the complaint; or where the prosecutor himself withdrew the charge before a summons or warrant had been issued.

For the same reason, it is no defense that the magistrate, in issuing a warrant, acted without jurisdiction, since the injury to the plaintiff’s reputation is not mitigated by the fact that technically there was no prosecution at all.

Termination of prosecution in plaintiff’s favor

The second requirement for a successful action in malicious prosecution is that the prosecution of which the plaintiff complains ended in his favour.

It is an inflexible rule that no person who has been convicted of a criminal charge can sue the prosecutor for malicious prosecution, even though he can prove that he was really innocent and that the charge was malicious and unfounded, see the case of Basebe V. Mathews (1867) L.R. 2 C. P. 684. For if a person were allowed to sue for malicious prosecution after the criminal trial had ended adversely to him, it would entail a re-opening of the issue of his guilt, conviction and might lead to the judgment in the criminal court being “blown off by a side-wind”. See the celebrated English case of Vanderbergh V. Blake (1661) 145 E. R. 447, per Hale C.J

Although the plaintiff cannot sue for malicious prosecution if he was convicted, this does not mean that he can only sue if he was acquitted on the merits, for what is required is not judicial determination of his innocence but merely absence of judicial determination of his guilt.

The crux is not so much whether he has been proved innocent as that he has not been convicted, the underlying principle being that a man is presumed to be innocent until he is proved guilty.

Thus the requirement will be satisfied where, for instance:

  1. The plaintiff was convicted in a lower court but his conviction was quashed on appeal because of some irregularity of procedure. See the case of Hermiman V. Smith (1938) A.C. 305; Romegialli V. Maroeau (1963) 42 D. L. R. (2d) 481.
  2. The plaintiff was acquitted of the charge in question but convicted of a lesser offence. See the case of Boaler V. Holder (1887) 51 J.P. 227.
  3. The plaintiff was acquitted on a technicality such as a defect in the indictment.
  4. The prosecution discontinued the proceedings; see the case of Wicks V. Fentham (1791) 100 E.R. 1000; or withdrew the charge, even without prejudice to the right to recommence; see the case of Casey V. Automobiles Renault of Canada Ltd.(1965) 54 D.L.R. (2d) 600
  5. The Attorney-General entered a nolle prosequi staying further proceedings on the indictment. See the case of Gilchrist V. Gardner (1891) 12 N.S.W.L.R; Khoury V. Tabbara (1953) 14 W.A.C.A 246; Yeboah V. Boateng (1963) 1 G. I. R. 182.

Essentials of Malicious Prosecution. Essentials of Malicious Prosecution. Essentials of Malicious Prosecution. Essentials of Malicious Prosecution. Essentials of Malicious Prosecution.

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