1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. • The tort requires an adversary to prove four elements: (1) the initiation or continuation of a lawsuit; (2) lack of probable cause; (3) malice; and (4) favorable termination of the lawsuit. Restatement (Second) of Torts §§ 674–681B (1977).
2. The tort claim resulting from the institution of such a proceeding. • Once a wrongful prosecution has ended in the defendant’s favor, he or she may sue for tort damages.
— Also termed (in the context of civil proceedings) malicious use of process; (archaically) malicious institution of civil proceedings. Cf. ABUSE OF PROCESS; VEXATIOUS SUIT. [Cases: Malicious Prosecution 16. C.J.S. Malicious Prosecution or Wrongful Litigation §§ 5, 23–24.]
“The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect — the improper use of a regularly issued process. For instance, the initiation of vexatious civil proceedings known to be groundless is not abuse of process, but is governed by substantially the same rules as the malicious prosecution of criminal proceedings.” 52 Am. Jur. 2d Malicious Prosecution § 2, at 187 (1970).
