Malicious prosecution
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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
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
Origins
The tort originates in the (now defunct) legal maxim that "the King pays no costs"; that is, the Crown could not be forced to pay the legal costs of a person it prosecuted, even if that person was found innocent. As The London Magazine stated in 1766: "if a groundless and vexatious prosecution be commenced in the King's name, his ministers who commenced, or advised commencing that prosecution, ought at least to be obliged to pay the costs which an innocent subject has thereby been put to".[2]
U.S. use of English Rule
Sixteen
Canadian law
The tort of malicious prosecution was reviewed in 2009 by the Supreme Court of Canada in
In 2014, the Quebec Court of Appeal held that the contents of plea bargaining negotiations held in the context of criminal cases could be admitted as evidence in the context of a civil suit for malicious prosecution, despite the general evidentiary rule prohibiting adducing settlement discussions into proof at trial. More specifically, the Court held that introducing into evidence the contents of such negotiations was possible when it tended to demonstrate that the prosecution initiated or maintained criminal charges on the basis of improper motives.[4]
Limitations
Notably, the tort of malicious prosecution only protects the right of defendants to be free of frivolous lawsuits brought by malicious plaintiffs. For a variety of reasons grounded in public policy, courts have consistently refused to authorize the converse — a tort of malicious defense which would protect the right of plaintiffs to be free of frivolous defenses raised by defendants.[5]
See also
- Barratry (common law)
- Frivolous lawsuit
- Immunity from prosecution
- Legal abuse
- Miscarriage of justice
- Selective prosecution
- Pervert the course of justice
- Strategic lawsuit against public participation
- Vexatious litigation
References
- ^ Per the case of Lossing v. Superior Court (1989) 207 Cal. App. 3d 635, 638-640[255 Cal. Rptr. 18]; see also Tellefsen v. Key System Transit Lines, supra, 198 Cal.App.2d at p. 615 [Court of Appeal has remedies for frivolous appeals]; Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1122-1123 [255 Cal.Rptr. 315]
- ^ "The History of the Last Session of Parliament". The London Magazine (431): 397. 1732–1735.
- ^ Nelles v. Ontario, [1989] 2 S.C.R. 170
- ^ Singh c. Montreal (City of), 2014 QCCA 307 (CanLII), <http://canlii.ca/t/g36bd> retrieved on 2014-11-07. Leave to Supreme Court of Canada refused on November 6th 2014.
- ^ Bertero v. National General Corp., 13 Cal. 3d 43, 52, 529 P.2d 608, 118 Cal. Rptr. 184 (1974) (citing Ritter v. Ritter, 381 Ill. 549, 46 N.E. 2d 41 (1943)).