It’s easy to get confused between abuse of process and malicious prosecution. Both terms refer to improper actions taken over the course of civil litigation, but there are significant differences in what each involves and how the terms are appropriate applied. While abuse of process refers to using the legal system to achieve a goal other than its original intent – such as to hurt the plaintiff or cause an unnecessary delay or additional expense — malicious prosecution refers to wrongfully filing charges against an individual or entity for the sole purpose of causing them harm.

When a party that’s been named in litigation accuses the other side of either abuse of process or of malicious prosecution, they must be prepared to offer proof of their assertion. Each of these wrongful actions has its own key elements:

• Abuse of process requires proof that the other party intended to use the justice system in a way that is counter to the law’s intent, that their actions were willful, and that as a result of the other party’s actions, the plaintiff suffered a financial loss, emotional distress, damage to their reputation, or some other legitimate harm.
• Malicious prosecution requires proof that the other party initiated their legal proceedings without probable cause for doing so and with the intention of causing harm. As part of proving this, it’s required that the legal proceedings that served as a catalyst for the claim of malicious prosecution have been completed and ended in dismissal, acquittal, or in some other way that favored the individual or entity accusing the other side of malice. There must also be proof of financial loss, emotional distress, damage to reputation, or some other legitimate harm.

We live in a litigious society, and many lawsuits are needlessly filed, but that is not the same as filing a lawsuit with the intent of harassing or intimidating the other side, as is the case with abuse of process, or of hurting the other side as is the case with malicious prosecution. Falsely accusing somebody of a tort or crime is frowned upon, and those who are proven to have done so can be required to pay significant compensation to the party that they’ve harmed.

If you’ve been the victim of either abuse of process or malicious prosecution, you have the right to take legal action and seek remedies from the court. To assess your own situation, contact our experienced attorneys today to set up a time for us to meet.