Placeholder Image Robert Ross, Attorney at LawHelping People Seeking Justice Downtown in the EveningBreach of Contract & Business Torts Meeting RoomLegal Malpractice & Professional Negligence Outside of a modern HouseReal Estate & Construction Litigation Emergency Room SignWrongful Death  Personal Injury Litigation

Elements of a Malicious Prosecution Claim


Malicious prosecution is a legal claim involving a wrongful lawsuit, which allows a wrongfully-sued defendant to bring an action and recover damages against a plaintiff who sued the defendant without proper cause.

Malicious prosecutions occur for a variety of reasons, including a plaintiff’s desire for unjustified revenge, attempts to shut down competing businesses, and wrongful efforts to force a defendant to cooperate or change behavior in order to avoid incurring costly legal fees. In short, malicious prosecution involves the wrongful use of the justice system to punish, harass, or oppress another person.

Suing someone for improper personal reasons, without legal justification, is not just morally wrong, it’s illegal, and malicious prosecution is one of the ways defendants receive justice when a lawsuit is wrongfully filed against them.


To prove malicious prosecution, the claimant (who was generally the defendant in the allegedly malicious action which prompted the malicious prosecution suit) must prove all four of the following elements:

1.  The commencement of a civil (or criminal) legal action or proceeding. 

“Commencement” of a proceeding generally means filing a lawsuit. Malicious prosecutions can be either criminal in nature (in which case the defendant in the malicious prosecution case is generally the government) or civil (in which case the allegedly malicious action was filed by a private plaintiff).

2. The plaintiff (in that first action) had an improper purpose for filing the action.

An “improper purpose” for filing a legal action generally means some purpose or objective other than obtaining a judgment against the named defendant. Often, the required improper purpose is assumed if the claimant can demonstrate that the lawsuit lacked probable cause. However, the person accused of malicious prosecution does have the opportunity to prove that his or her actions were not improper — for example, by proving that (s)he was simply following an attorney’s advice.

3. The plaintiff (in the action which is the subject of the malicious prosecution claim) had no probable cause to believe the action was founded on proper legal grounds.

Last week’s posts examined the issue of probable cause in detail. The short version of the test is that the court will ask whether a reasonable person (or attorney, in the case of legal counsel) would have believed the case had legal merit.

4. The person claiming malicious prosecution (generally, the defendant in the proceeding that triggered the malicious prosecution claim) prevailed in the allegedly malicious action or had that action terminated with a ruling in his or her favor.    

A person can bring a malicious prosecution suit only if he or she was successful in defending against the lawsuit which he or she is claiming was malicious. By definition, if the plaintiff won the original action, the defendant cannot claim the action was malicious. This is because if the plaintiff prevailed, the action was presumably founded on proper grounds.

In other words, if you were sued and lost, and had to pay damages, or if you were convicted of criminal charges, you cannot sue the plaintiff in that civil or criminal action for malicious prosecution. (Note: if your case was overturned on appeal, you should consult a lawyer to see whether malicious prosecution may still apply, depending on the grounds the appeal was granted.)

However, if you were sued and you won, and you believe the suit was wrongful, you should consult an attorney promptly to see whether you have a cause of action for malicious prosecution.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE. Your rights and experiences may vary. Never use an article like this one to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, consult an experienced malpractice lawyer immediately for an evaluation of your possible rights and claims.

Designed and Powered by NextClient

© 2015 - 2024 Robert S. Ross. All rights reserved.
Custom WebShop™ law firm website design by

Quick Contact Form - Tab