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Proving “Malice” in Malicious Prosecution Actions

Malicious prosecution involves the wrongful use of the justice system to punish, harass, or oppress another person.

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.  Commencement of a civil (or criminal) legal action or proceeding. 

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

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.

4. The person claiming malicious prosecution prevailed in the original (allegedly malicious action).

Today, we’re taking a closer look at the second element: improper purpose, also sometimes referred to as malice.    


It probably comes as no surprise that malice (or “improper purpose”) is a primary element of the tort of malicious prosecution.

The type of malice required does not involve (or even require) personal hostility, anger, or ill-will toward any person or entity. Legally speaking, the “malice” requirement is met when a party brings a legal action in bad faith, intending to use the action (or the legal system) to wrong, annoy, or inconvenience another party.

Legally sufficient “malice” may include actual hostility. The requirement may also be met by a calculated, unemotional decision to use the legal system for inappropriate purposes, such as to cause inconvenience or cost (for example, by forcing the other party to pay exorbitant legal fees to defend an otherwise pointless action).

However, in order for malice to be present, the party bringing the action must have done so with an improper purpose–something other than seeking actual redress for legitimate wrongs or forcing a wrongdoer to face the consequences of his or her actions.

In malicious prosecution actions, the existence of “malice” is normally considered an issue of fact, to be determined by the jury (or by the judge, in the case of non-jury trials). As with other issues of fact, a judge can normally intervene if the facts are sufficient to remove all doubt about the existence (or non-existence) of legally sufficient malice.


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.

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