Malicious Prosecution and Abuse of Process

When the legal system is used wrongfully, there are two possible causes of action that may arise in response, depending on the specific facts of the situation: malicious prosecution and abuse of process. These actions are related torts in which the plaintiff can receive a recovery for a misuse of the legal system.

Malicious Prosecution

Malicious prosecution arises when an individual or entity uses the legal system to bring a court action against someone, even though that individual or entity knows the case does not have an evidentiary basis. Generally speaking, the plaintiff in a malicious prosecution action must have already obtained a favorable result before filing a malicious prosecution suit.

To prove malicious prosecution, a plaintiff must prove the conduct of the individual or entity (including the Commonwealth itself) fulfilled the following elements by a preponderance of the evidence (e.g. it is more likely than not):

  • First, the defendant’s conduct was malicious, and not simply in error.
  • Second, the defendant instituted or cooperated in the institution of the charges;
  • Third, the defendant pursued the case without probable cause; and
  • Fourth, the case was terminated in a manner not unfavorable to the Plaintiff.

The process of filing criminal charges is relatively simple in Virginia. Any individual can file a criminal complaint by swearing out a warrant in front of a magistrate judge. Often, law enforcement officers bring criminal charges after investigations, but on many occasions private individuals outside of the criminal investigatory structure bring criminal charges.

In cases where the criminal complainant brought charges maliciously, wrongly, falsely, without probable cause, or otherwise inappropriately, an individual might have a case for malicious prosecution if the outcome of the case is “not unfavorable.” Generally speaking, this means that an individual cannot, for example, take a plea bargain and plead guilty to a lesser charge, but later sue for malicious prosecution.

Abuse of Process

Abuse of process is appropriate when an individual or entity initiates legal proceedings for a purpose the legal process was not designed to produce. This extends beyond filing lawsuits; abuse of process can include reports to administrative agencies and other such legal reports and filings. Abuse of process can also arise within parts of a lawsuit, such as seeking abusive discovery.

The most important element of abuse of process is that a plaintiff show an “improper purpose” to the defendant’s actions. An improper purposes requires a show more than that a use of process was within the rules but merely unnecessary; rather, it requires the defendant used the legal system to extort, force, or create some other illegal effect through the use of an otherwise legal process. An example would be filing false criminal charges so that a company has a reason to fire an individual for cause.

if you believe that you might have a cause of action, especially against a city, county, or the Commonwealth of Virginia, you need to take action as quickly as possible. Notice of these claims are subject to time limits and some of those limits are quite short. Notice of these claims can be required before filing. It is vital to your claim that you contact a lawyer as soon as possible.