The term "proceedings" in malicious prosecution is interpreted broadly, encompassing more
than just formal criminal trials. While criminal cases are the most frequent basis for these claims,
the law recognizes various civil, administrative, and special legal processes as valid foundations
for an action 1-3.
1. Criminal Proceedings
This is the traditional and most common legal process involved 1, 4. A malicious prosecution
claim can arise from any criminal case brought against a plaintiff that results from oral or written
statements made by the defendant without probable cause 4, 5. This includes:
● Formal Trials: The standard criminal prosecution process 4.
● Appeals and Revisions: The term "prosecution" also refers to criminal proceedings that
are being appealed or revised 6.
● Plea Bargaining: In some jurisdictions, the contents of plea bargaining negotiations can
be used as evidence to demonstrate that a prosecution was maintained for improper
motives 7.
2. Civil Proceedings
In many jurisdictions, the wrongful initiation of civil proceedings is actionable, sometimes
referred specifically as "malicious use of process" 3, 8.
● Standard Civil Lawsuits: Any ordinary civil action brought maliciously and without
probable cause 9, 10.
● Counterclaims: The filing of a counterclaim can constitute a "proceeding" for malicious
prosecution purposes 1. This is significant for businesses facing "headline-grabbing"
counterclaims of dubious merit 11.
● Bankruptcy and Liquidation: Maliciously instituting bankruptcy or company liquidation
proceedings against another is a recognized form of the tort 3, 12.
● Lis Pendens: Filing a notice of lis pendens (a formal notice of a pending lawsuit
involving real estate) can be actionable if the underlying action was terminated in favor of
the plaintiff 2, 13.
3. Administrative and Quasi-Judicial Processes
For an administrative proceeding to qualify, it must be quasi-judicial in nature and have the
power to take action that adversely affects the legally protected interests of the subject 13, 14.
● Arbitration: Judicially enforceable arbitration proceedings can form the basis for a
malicious prosecution action 14.
● Disciplinary Boards: Proceedings before quasi-judicial administrative bodies, such as
professional disciplinary boards, may suffice if they meet the "quasi-judicial" criteria 13.
However, standard departmental investigations by a disciplinary body are generally not
considered "prosecutions" 15.
4. Special Legal Processes
Specific types of legal maneuvers or seizures of property can also trigger liability:
than just formal criminal trials. While criminal cases are the most frequent basis for these claims,
the law recognizes various civil, administrative, and special legal processes as valid foundations
for an action 1-3.
1. Criminal Proceedings
This is the traditional and most common legal process involved 1, 4. A malicious prosecution
claim can arise from any criminal case brought against a plaintiff that results from oral or written
statements made by the defendant without probable cause 4, 5. This includes:
● Formal Trials: The standard criminal prosecution process 4.
● Appeals and Revisions: The term "prosecution" also refers to criminal proceedings that
are being appealed or revised 6.
● Plea Bargaining: In some jurisdictions, the contents of plea bargaining negotiations can
be used as evidence to demonstrate that a prosecution was maintained for improper
motives 7.
2. Civil Proceedings
In many jurisdictions, the wrongful initiation of civil proceedings is actionable, sometimes
referred specifically as "malicious use of process" 3, 8.
● Standard Civil Lawsuits: Any ordinary civil action brought maliciously and without
probable cause 9, 10.
● Counterclaims: The filing of a counterclaim can constitute a "proceeding" for malicious
prosecution purposes 1. This is significant for businesses facing "headline-grabbing"
counterclaims of dubious merit 11.
● Bankruptcy and Liquidation: Maliciously instituting bankruptcy or company liquidation
proceedings against another is a recognized form of the tort 3, 12.
● Lis Pendens: Filing a notice of lis pendens (a formal notice of a pending lawsuit
involving real estate) can be actionable if the underlying action was terminated in favor of
the plaintiff 2, 13.
3. Administrative and Quasi-Judicial Processes
For an administrative proceeding to qualify, it must be quasi-judicial in nature and have the
power to take action that adversely affects the legally protected interests of the subject 13, 14.
● Arbitration: Judicially enforceable arbitration proceedings can form the basis for a
malicious prosecution action 14.
● Disciplinary Boards: Proceedings before quasi-judicial administrative bodies, such as
professional disciplinary boards, may suffice if they meet the "quasi-judicial" criteria 13.
However, standard departmental investigations by a disciplinary body are generally not
considered "prosecutions" 15.
4. Special Legal Processes
Specific types of legal maneuvers or seizures of property can also trigger liability:
