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What Kinds of Cases Can Support A Claim For Malicious Prosecution?


People are often confused by the difference between “malice,” as used in a layperson’s context, and malicious prosecution, which is a legal cause of action (a claim that can be brought before a court in proper circumstances).

While people may act “maliciously” in a variety of situations, including litigation and other legal actions, not all malicious acts will support a claim for malicious prosecution. Only certain types of legal actions can form the basis for malicious prosecution claims – and then, only when the elements of a malicious prosecution action are present.

The types of legal processes and actions that can (in proper circumstances) support a malicious prosecution claim include:


When the government improperly brings criminal charges against a person, and the defendant can show the elements of malicious prosecution, criminal cases may form an appropriate foundation for malicious prosecution claims.


A variety of civil proceedings (meaning actions where the plaintiff is a private party, rather than the government) and legal actions can also support a claim of malicious prosecution (again, where the elements of the claim are met). “Civil proceedings” is an expansive label that covers many (if not most) legal actions, but here are a few examples of civil proceedings that people may not realize can give rise to malicious prosecution claims:

Probate proceedings, including without limitation will and trust contests.

Actions for Declaratory Relief – meaning lawsuits where a party requests a court order “declaring” the parties’ rights, as opposed to (or in conjunction with) a claim seeking an award of money damages. Even if the complaint seeks only a declaratory judgment, and no money damages, if the action is brought without probable cause, and maliciously, the defendant may be able to claim malicious prosecution.

Order to Show Cause Proceedings (sometimes also called “OSC” proceedings) – except for those associated with family law proceedings, which are an exception to the rule that OSC proceedings may give rise to malicious prosecution claims.

Arbitration Proceedings, specifically judicial arbitrations, which may support a malicious prosecution claim in the same way as a regular trial on the issue. Private arbitrations generally require a statement in the arbitration agreement expressly allowing malicious prosecution as a remedy – but even then, contractual arbitrations may not support malicious prosecution claims in the way judicial arbitrations do. Consult an attorney if you are involved in, or threatened with, an arbitration that you believe is unjustified or might support a claim for malicious prosecution.

This is not a definitive list of the claims that support malicious prosecution actions. Consult an attorney promptly if you believe someone is wrongfully bringing a claim against you, or if you are sued or threatened with a lawsuit for any reason.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including 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. Malicious Prosecution claims are complicated and fact-dependent. If you believe you have a claim against someone who wrongfully instituted a legal action against you, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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