What is Malicious Prosecution under the Law of Tort?

Malicious prosecution under tort law involves initiating legal proceedings with malice and without probable cause. Key elements include lack of reasonable cause, malice, favorable termination for the plaintiff, and resulting damages, ensuring protection from legal abuse.

Akash Srivastava

Nov 29, 2024 • 7 min read

Introduction

The concept of malicious prosecution, under the Law of Torts, refers to the initiation of legal proceedings against a party with malicious intent and without reasonable or probable cause. This concept extends beyond criminal proceedings to include civil actions, malicious bankruptcy and liquidation proceedings, the malicious execution of processes against property, and improper searches.

Malicious prosecution requires proof of wrongful or improper motive behind the initiation of proceedings and must establish that the prosecution was initiated without probable cause. It is inherently concerned with the abuse of the legal system, where the prosecuting party acts not out of a genuine desire for justice but with the intent to harm, intimidate, or oppress the opposing party. The law requires the plaintiff to provide strong evidence to support their claim, ensuring that accusations of malicious prosecution do not discourage people from filing genuine and lawful cases.

By examining malicious prosecution, this discussion aims to analyze its essential elements, legal implications, and significant judicial precedents.

Meaning of Malicious Prosecution

Malicious prosecution refers to the wrongful and unjustified initiation of legal proceedings against an individual, based on facts that do not reasonably establish a cause of action and are motivated by malice.

It is a tort that allows a person to sue for damages if they have been unfairly targeted by legal action motivated by improper intentions, such as spite or desire to cause harm, than a bona fide belief that the claims were true.
The plaintiff must prove that the defendant initiated or continued legal proceedings against them and that these proceedings were ultimately resolved in the plaintiff’s favor, without any judicial finding of guilt.
The plaintiff must establish that the legal proceedings were initiated without probable cause or justification.
The defendant has acted with malice, perhaps defined as an improper motive or intent to injure the plaintiff. It is also essential to establish that the plaintiff suffered damages as a result of the prosecution. These damages may include harm to their reputation, personal injury, or loss of property.
It can be described as a kind of legal claim that protects people from being wrongly subjected to judicial actions motivated by improper purposes rather than any legitimate legal concern.

Essential elements of Malicious Prosecution

The core elements that a plaintiff must prove in an action for damages in malicious prosecution are as follows:

1. Prosecution by the Defendant: The plaintiff must demonstrate that he or she was prosecuted by the defendant. Such prosecution relates to legal proceedings initiated by the defendant against the plaintiff.

2. Lack of Reasonable and Probable Cause: The plaintiff must demonstrate that the prosecution was initiated without reasonable or probable cause, meaning there was no valid basis for the defendant to believe that the legal action was justified.3. Defendant Acted Maliciously: The plaintiff must prove that the defendant acted with malice.

These elements emphasizes the defendant’s intention when filing the suit, which must be determined based on factual and evidentiary analysis, as held in Jogendra Garababu v. Lingaraj Patra[1]. It is an important aspect that in such situations, the complaint filed must not contain the intention of retrieving justice for the defendant and that the defendant must have acted on malice substance in the allegations.
Here, it has to be noted that the term 'malice' itself is not restricted merely to ill-feelings or hatred; it also includes any immoral/improper cause that may result in causing wrongful damage to the plaintiff.

4. Termination of Proceedings in Favour of Plaintiff: It is essential that the proceedings are terminated in the plaintiff's favor. This means that the outcome of the proceedings did not result in findings of guilt or liability against the plaintiff. Malicious prosecution can only be pleaded when the termination of the proceedings is successful in favoring the plaintiff, such as through acquittal or the suspension of further actions against them. It is important to note, however, that the dismissal of such proceedings does not equate to a declaration of the plaintiff's innocence. Rather, it merely indicates that the plaintiff has not been convicted of the charges brought against them. This principle was elucidated in the case of Gilchrist v. Gardner[2].

5. Plaintiff has suffered damage: the plaintiff must prove that they suffered harm as a direct result of the prosecution. This harm may include damage to their reputation, psychological distress, or financial loss. The final requirement to satisfy all the elements of malicious prosecution under the law of torts is that the plaintiff must have experienced some form of injury or damage due to the prosecution, which ultimately concluded in their favor. Importantly, such harm must be reasonably foreseeable and not excessively remote. This principle was first articulated in the case of Savile v. Roberts[3], that was later reaffirmed by the Calcutta High Court in the case of C.M. Agarwalla v. Halar Salt and Chemical Works[4].

All these elements are essential and must be proven to establish the grounds for a claim of malicious prosecution.

Difference between Malicious Prosecution and Abuse of Process

The significant differences between malicious prosecution and abuse of process are as follows:

BASIS	MALICIOUS PROSECUTION	ABUSE OF PROCESS
Definition	Malicious prosecution refers to the wrongful initiation of legal proceedings against an individual without reasonable or probable cause, driven by malicious intent. This concept applies specifically to criminal or civil cases that are brought with improper motives and lack sufficient justification.	This refers to the misapplication or misuse of legal procedures for purposes other than those intended by the law. It occurs when legal processes are employed in an improper or unjust manner, even if the underlying legal action itself may be valid or justified.
Focus	The action lies in the initiation of the action itself and whether it was done with malice or without probable cause. Evidence that the proceedings were terminated in favor of the plaintiff is required.	Abuse of process concerns the improper use of legal procedures after initiation. Unlike malicious prosecution, it does not require proving malice or lack of probable cause for the original action.
Elements required to prove	The plaintiff must prove that the defendant maliciously prosecuted him, or caused him to be prosecuted, without any reasonable cause, so as to cause actual damage.	The plaintiff must establish that the defendant has used the process of law in an improper or inequitable manner, such as to include coercive or harassing acts, although the claim underlying was valid.
Types of cases	Most generally, this refers to criminal proceedings or civil action against which the plaintiff was wrongfully accused or prosecuted.	It can arise in any form of case, whether civil litigation, family law, or even bankruptcy, where process that falls inside the legal arena is misused.
Outcome	The Claimant sues for damages for the injury suffered because of the wrongful prosecution.	The Claimant may suit for damages or an injunction to restrain further abuse of the process of the law.

In the case of West Bengal State Electricity Board v. Dilip Kumar Ray[5] it was held by the Supreme Court that the former means initiating a process out of malice while latter means process to achieve one’s motive by legal processes for an ulterior motive than the one it was intended for.

In a nutshell, both concepts involve the misapplication of legal procedures; however, malicious prosecution essentially deals with the wrongful initiation of legal proceedings, while abuse of process relates to the wrongful application of legal procedures after legal proceedings have been instituted.

Defenses against Malicious Prosecution

Defenses against a claim of malicious prosecution are as following:

Probable cause: the defendant may argue before the court that there were reasonable and probable grounds for initiating the legal proceedings. If the defendant can sufficiently demonstrate that they had a genuine and reasonable belief that the prosecution was justified, it serves as a valid defense and negates the plaintiff's claim of malicious prosecution.
Malice not shown: the respondent may plead that there was no malice involved for bringing the action. The case of the respondent to defend might be successful if it could establish that the defendant was acting under a bona fide belief in the truth of facts constituting his claim, and not with malice against the plaintiff.
Termination of Proceedings: The proceedings did not terminate in the plaintiff's favor then the defendant can argue that a fundamental element of malicious prosecution has not been satisfied. For example, if the judgment resulted in a ‘guilty’ verdict or the case was dismissed without prejudice, it undermines the plaintiff's claim, as favorable termination is a critical requirement for establishing malicious prosecution.
Judicial Immunity: Judicial immunity grants legal officers, such as judges or prosecutors, protection from liability for actions performed in their official capacity. When the defendant incidentally happens to be a judge or prosecutor acting within the scope of their duties, they are typically shielded by this immunity, preventing claims against them for malicious prosecution.
Statutory Immunity: in some jurisdictions, certain officials such as the police officers are granted statutory immunity for actions carried out in good faith within the ambit of their official duties.
Damages Not Suffered: the defendant can argue that plaintiff did not suffer actual damage as a result of the prosecution. If the plaintiff fails to prove that any damages were incurred due to his acts or omissions, this significantly undermines the validity of their claim for malicious prosecution.
Consent: if the plaintiff gave implied consent to the litigation or participated in it, this can serve as a valid defense.
No Abuse of Process: The defendant may argue that there was no abuse of process and that the proceedings were conducted strictly in accordance with the law. Evidence may be against the plaintiff's favour, the defendant can contend that the legal process was legitimate and adhered to all procedural requirements.

Conclusion

Malicious prosecution is a serious legal claim initiated when one person brings another person before the legal system without valid cause and malicious intent. To establish a claim of malicious prosecution, the plaintiff must prove several key elements: the absence of probable cause, malice on the part of the defendant, and the termination of the proceedings in plaintiff’s favor and resultant damages.

The defenses against such claims are strong and robust including demonstrating the presence of probable cause, absence of malice, judicial or statutory immunity, and lack of actual damages. Understanding these elements and their corresponding defenses is of paramount importance for both the plaintiff and the defendant in navigating the complexities of malicious prosecution cases.

Ultimately, the law seeks to balance the right to seek justice with the need to prevent false accusations and misuse of judicial processes. Consequently, malicious prosecution represents a form of protection against abuse of processes and ensures that people have a right to pursue any just claims without fear of some kind of unjust retaliation.

[1] AIR 1970 OR I91.

[2] 54 N.J. 37 (1969).

[3] 90 E.R. 981.

[4] AIR 1977 CALCUTTA 356.

[5] (2013) 8 SCC 491.