Malicious prosecution

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."

"Dismissed" as noted in item (3) above is incorrect, at least in Colorado. See Allen v. City Aurora 892 P.2d 333, (Colo. App. 1994). The plainitff must have been found innocent at trial. If the charges were only dismissed (whether by the prosecuting attorney or the court), the party will lose based upon the elements of liability necessary to prove malicious prosecution.

"Dismissed" as noted in item (3) above would be better for the Plaintiff suing the prosecutor. It shows that the prosecutor was mistaken and did not investigate his or her case properly. It could also show that the prosecutor was unskilled, inexperienced, inept and or unqualified to prosecute the case.

US use of English Rule
Sixteen U.S. states 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 jurisprudence 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.