Malicious Prosecution: Elements, Cases & Examples

Combating False Accusations: The Legal Tool of Malicious Prosecution


Malicious prosecution is a tort or civil wrong, that arises when someone brings a criminal or civil action against another person with the intention of causing harm or damage, and without any reasonable or probable cause. This tort is designed to protect individuals from the abuse of the legal system and to compensate them for any damages they may have suffered as a result of being wrongly accused.

The foundation of law for action for malicious prosecution lies in the abuse of the process of the Court by wrongfully setting the law in motion. The whole principle lying behind malicious prosecution is that society as a whole is interested in protecting the individual against unjustifiable and oppressive imputation of criminal charges.

You may also read Classification of Torts

Malice meaning:

In tort, to act maliciously means acting with a bad motive. Normally, malice and motive in general are irrelevant in tort law. If what you do is lawful, it remains lawful whatever your reason for doing it. Similarly, if your act is unlawful, doing it with a good motive will not usually make it lawful. This was the approach taken by the House of Lords in the leading case of Bradford Corporation v Pickles (1895).

The Bradford Corporation owned a reservoir on property adjoining Pickles’s land. Water naturally flowed under Pickles’s land and into the reservoir. Pickles wanted to force the corporation to buy his land at a high price. With this aim in mind, he dug up some of his land, in order to stop the natural flow into the reservoir. It was already settled law that it was not a tort for a landowner to interfere with the flow of underground water, but the corporation argued that although Pickles’s action would normally have been lawful, his malice made it unlawful. The House of Lords rejected this argument.

Meanings of  Malicious Prosecution

1) The institution of a criminal or civil proceeding for an improper purpose and without probable cause. In the law, it means that the prosecution was instituted primarily because of a purpose other than that of bringing an offender to justice.

2) Ballentine's Law Dictionary: The institution of any action or proceeding, either civil or criminal, against another maliciously and without probable cause".

Definition of malicious prosecution

Malicious prosecution may be defined as a tort that consists of instituting certain kinds of legal proceedings against another person maliciously and without reasonable and probable cause.

(1) According to Black’s Law Dictionary: Malicious prosecution is “One began in malice without probable cause to believe the charges can be sustained. An action for damages brought by a person, against whom a civil suit or criminal prosecution has been instituted maliciously and without probable cause, after the termination of prosecution of the such suit in favor of the person claiming damages.

(2) In the case of Muhammad Yousaf v. Abdul Qayyum: The August Supreme Court defines Malicious prosecution as a tort that provides redress to those who have been prosecuted "without reasonable cause" and with "malice".

(3) Malicious prosecution is a tort that balanced the competing principles, namely the freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution was an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge.

(4) Peshawar High Court defined malicious prosecution as being:

"an action instituted with intention of injuring the defendant and without probable cause. The meaning of malicious prosecution has been given as filing a lawsuit with intention of creating problems for the defendant such as costs, attorney's fees, anguish, or distraction where there is no substantial basis for the suit. If the defendant in the lawsuit wins and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages." [2019 M L D 314]

Legal Remedy for Malicious Prosecution

The legal remedy for malicious prosecution is a civil action for damages. This means that an individual who has been the victim of malicious prosecution can bring a lawsuit against the person who initiated the baseless legal proceedings, seeking compensation for any damages they may have suffered as a result. These damages may include financial losses, such as lost wages and legal fees, as well as non-economic damages such as emotional distress and damage to reputation.

If the plaintiff is able to prove the elements of Action for Malicious Prosecution, they may be awarded damages by the court. The amount of damages will depend on the specifics of the case, including the extent of the harm suffered by the plaintiff and any other relevant circumstances.

Where no damages were quantified by the plaintiff a court had discretionary jurisdiction to grant damages for loss of liberty/dignity/mental anguish that was reasonably proportionate to what the plaintiff could be presumed to have suffered.

You may also read the Essential elements of the law of Tort

Essential Ingredients for a Claim of Malicious Prosecution 

There are several elements that must be present in order for a claim of malicious prosecution to be successful.  In an action for malicious prosecution, the plaintiff has to prove the following:

  • (1) That he was prosecuted by the defendant of a criminal charge;
  • (2) That the proceeding complained of termination in his favor; 
  • (3) That the defendant instituted or carried on such prosecution maliciously or in other words, the prosecution was instituted and carried on with a malicious intention; 
  • (4) That there was the absence of reasonable and probable cause for such proceeding; as the Defendant was actuated by malice (with improbable motive and not to further the ends of justice) and 
  • (5) That the proceedings had interfered with the Plaintiff's liberty and had also affected his reputation and the Plaintiff had suffered damages. 

The requisite elements for an action for malicious prosecution in England and in America are substantially the same. In both England and America, for a plaintiff to succeed in a claim for malicious prosecution, these essential ingredients which are universal in their nature must be present contemporaneously. In India also these very elements were affirmed by the Patna High Court in Nagendra Kumar v. Etwari Sahu.

As far as our own jurisdiction is concerned our superior Courts have enumerated similar conditions that have to exist for an action for malicious prosecution to be successful. The conditions for malicious prosecution are as follows:

  • (a) Favorable and final termination (the prior action was commenced by or at the direction of the defendant, and was pursued to a legal termination in the malicious prosecution plaintiff’s favor);
  • (b) Lack of probable cause (the action was commenced or continued to be prosecuted without probable cause as to one or more claims);
  • (c) Malice (the action was initiated with malicious intent); and
  • (d) Damages (the prosecution of the prior action caused economic and/or non-economic damages).

 In addition, an action for malicious prosecution is generally available as a remedy to one who has been wrongly involved/implicated in a criminal prosecution. However, abuse of civil proceedings may also afford the right to a Respondent to bring an action for malicious prosecution.

Explanation of Essential Elements for Action of Malicious Prosecution

(1) Prosecution by the defendant

The first requirement is the initiation of criminal prosecution. Black's Law Dictionary defines the term 'prosecution' as "a criminal proceeding in which an accused person is tried".

According to Clerk and Lindsell: “To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question.

As pointed out in Halsbury’s Law of England, “A prosecution exists where a criminal charge is made before Judicial Officers or Tribunal.”

In America, a proceeding must have been actually commenced against a person before he has a cause of action for wrongful or malicious prosecution.

It was laid out in the case of Rosario v. Amalgamated Ladies 'Garment Cutters' Union that: "One of the essential elements of an action for malicious prosecution is the prior commencement or continuance of an original criminal judicial proceeding."

It may be noted that merely setting the law in motion by making an appeal to someone clothed with Judicial authority in regard to any matter or merely giving information to the police which induces the latter to launch an investigation, would not constitute prosecution. The investigation by the police or taking a further active part, in the plaintiff's prosecution after laying the information before the police would amount to prosecution.

In the more recent case of Muhammad Yousaf v. Abdul Qayyum, the August Supreme Court of Pakistan interestingly held that "malice is a state of mind and can be inferred from the circumstantial evidence". In the said case the complainant had not initially nominated the accused in the original FIR but added the latter's name in the FIR at a later point in time after having received information from a third party, who, although perfectly able to attend Court and testify, was not produced or called as a witness by the complainant.

(2) Termination of Proceedings in Favour of the Plaintiff 

It is not sufficient to show that the plaintiff was prosecuted by the defendant. It must also be shown that it terminated in favor of the plaintiff. If the plaintiff establishes that the proceedings terminated in his favor, it will be immaterial whether they terminated by his acquittal, discharge on declaration or innocence of the plaintiff, or even withdrawal of the case by the defendant as a result of a settlement with one of the several persons complained against.

(3) Malicious Intent 

In addition to the above two ingredients, it must also be proved that the defendant instituted or carried on prosecution maliciously. Malice is not merely the doing of a wrongful act intentionally, but it must be established that the defendant was actuated by malice and animus, that is by any indirect or improper motive.

"The term malice in a prosecution has been held not to be spite or hatred against an individual but of 'malus animus' and as denoting the working of improper and indirect motives.

The proper motive for prosecution is the desire to secure the ends of justice. It should, therefore, be shown that the prosecutor was not actuated by this desire but by his personal feelings See Mitchell v. Jenkins, Pike v. Waldrum, and Stevens v. Midland Countries

Further, malice should be proved by the plaintiff affirmatively, See Abrath v. N.E. Ry. (1886) 11 CA 247. Malice may sometimes be inferred from the absence of reasonable and probable cause but this rule has no general application and there may be cases where it would be appropriate not to infer malice from unreasonableness. Further, if reasonable and probable cause is proved, the question of malice becomes irrelevant, and also a defect of want of reasonable and probable cause cannot be supplied by evidence of malice, See Turner v. amber (1847). 10 QB 252: Mitchell v. Jenkins; Brown v. Hawks (1891) 2 QB 718 and Herniman v. Smith (1938) AC 305.

(4) Absence of reasonable and probable cause 

The plaintiff must also prove that there was the absence of reasonable and probable cause for prosecution launched by the defendant against him.

The ingredient as to whether the initiation of the prosecution was with a reasonable and probable cause. In England, the term 'reasonable and probable cause', has been defined in the case of Hicks v. Faulkner wherein Hawkins J. described it as being:

“I should define reasonable and probable to be an honest belief in the guilt of the accused, based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed.”
 The House of Lords approved this definition in Herniman v. Smith. This definition has also been adopted by Jordan CJ of the Supreme Court of New South Wales in Mitchell v. John Heine and Sons Ltd. In the more recent English case titled Willers v. Joyce and another case Supreme Court of the UK observed, by a majority view, that:
"In order to have reasonable and probable cause, the defendant did not have to believe that the proceedings would succeed; it was enough that, on the material on which he acted, there was a proper case to lay before the court."
 Finally, the term "reasonable and probable cause" has been further defined in Salmond on the Law of Torts, 9th Edition as:
"Having regard, however, to the facts known to the defendant, he must show a reasonable sound judgment and use reasonable care in determining whether there are sufficient grounds for the proceedings instituted by him, and any failure to exhibit such judgment or care will be imputed to him as a want of reasonable and probable cause."

 The Courts in India have also adopted this very definition referred to above.

Furthermore, in the case of Province of East Bengal and others v. S.M. Faruque and others, the term reasonable and probable cause was defined as follows:

"The law on the subject is well-settled. It is stated in Clerk and Lindsel on Torts, 9th Edition, p.662, that an individual should not be harassed by legal proceedings improperly instituted against him. It is the right of every one to put the law in motion if he does so with the honest intention of protecting his own or public interest. But it is an abuse of that right to proceed maliciously and without reasonable and probable cause for anticipating success. Hence the question is: What is meant by "reasonable and probable cause". "Reasonable and probable cause" means a genuine belief based on reasonable grounds that the proceedings are justified."

(5) Damage

Lastly, it must also be established that the plaintiff suffered some damage. Holt, C.J., classified damage to be awarded for the tort of malicious prosecution into the following three categories:

  • (i) Damage to a man’s fame;
  • (ii) Damage to a person; and.
  • (iii) Damage to property. 

If a person has been prosecuted it is to be presumed that some damage to that party has resulted. He may or may not have suffered pecuniary loss but the loss to his reputation and mental anxiety in every case is bound to result.

A plaintiff may recover damages for the distress which normally results from being prosecuted for a time without proving that he has suffered any emotional disturbance. Damage of that kind is called general damage.

A false charge that a person has committed cheating or is guilty of criminal breach of trust is bound to injure his reputation, more so, in a case of a person who is known to the business world. The second type of damage arises due to the injury to the person of the plaintiff. Injury to the person may result because of arrest, i.e., he is deprived of his liberty and also because of what he has to suffer from mental stress.

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Limitation For Filing A Suit For Compensation

As per The first schedule Under Article 23 of the Limitation Act, 1908, a suit for compensation for malicious prosecution can be instituted within one year when the Plaintiff is acquitted or the prosecution is otherwise terminated.

According to section 12(1) of the Limitation Act, 1908, while computing the period of limitation prescribed for a suit, the day on which the judgment complained of was pronounced and the time requisite for obtaining a certified copy of the order/judgment/decree shall be excluded.

Examples of malicious prosecution

Here are a few examples of situations that could potentially give rise to a claim of malicious prosecution:

1. A person is falsely accused of a crime, such as theft or assault, and is subsequently arrested and charged. The charges are later dismissed due to a lack of evidence, and the person brings a claim of malicious prosecution against the person who made the false accusations.

2. A person brings a civil lawsuit against another person, alleging a breach of contract or some other wrongdoing. The case is later dismissed, and the defendant brings a claim of malicious prosecution against the plaintiff, alleging that the lawsuit was brought without any reasonable or probable cause.

3. A person is accused of engaging in workplace misconduct, such as harassment or discrimination. The person is later cleared of any wrongdoing, and brings a claim of malicious prosecution against the employer, alleging that the accusations were made with the intention of causing harm or damage.

4. A person is falsely accused of a crime and is subsequently arrested and charged. The charges are later dismissed due to a lack of evidence, and the person brings a claim of malicious prosecution against the police officers who made the false accusations.

Important Case Laws on Malicious Prosecution

1. Under common law, "the plaintiff must prove that there was a prosecution without reasonable and probable cause, initiated by malice and the case was resolved in plaintiff's favor. It is also necessary to prove that damage was suffered as a result of the prosecution." (Vivienne Harpwod, Principles of Tort Law, 3rd Edition, Page: 332). These ingredients were recognized in Marine Management v. Government (PLD 2000 Karachi 215)

2. Courts must cautiously verify that one who claims damages under the tort of 'malicious prosecution ' must prove its all ingredients by discharging the burden of proof up to the requisite standard [2022 MLD 1]

3. The elements of "malicious prosecution" required to be proved for a successful claim under "malicious prosecution" are well established in our jurisprudence. These elements recognized and approved by the Honourable Supreme Court of Pakistan in the cases titled "Muhammad Akram v. Mst. Farman Bi"(PLD 1990 Supreme Court 28), "Mahmood Akhtar v. The Muslim Commercial Bank Ltd. and another" (PLD 1992 Supreme Court 240), "Muhammad Yousaf v. Syed Ghayyur Hussain Shah and 5 others"(1993 SCMR 1185)

 4. At the same time, it is also the duty of the Courts to protect innocent Citizens being victimized by misuse of the process of law, as pointed out by his Lordship Shahid Waheed, J. while authoring the judgment in the case titled "Nadeem Ahmad v. Saif-ur-Rehman and 8 others" (2021 MLD 354) in the following words:-

 "People make false accusations for having the feeling of enmity towards someone, being jealous, getting rid of someone, taking revenge, or attaining cheap fame. Such people after making false accusations become busy with their matters, but the person against whom the false accusation has been made falls into disgrace and infamy for the rest of his life. Thus, in order to curb this social evil it would be expedient to read and interpret the word "prosecution" in the sense of criminal proceedings instead of its technical sense which it bears in criminal law.

The requirement to strike the balance between the aforesaid competing interests/rights of the Citizen is not just a concern in our Country but at the same time it is debated in the rest of the world.

5. Lord Neubarger's citation/survey from the United States as discussed in the case titled "Crawford Adjusters and others v. Sagicor General Insurance (Cayman) Ltd and another" ([2013] 4 All ER 8) raised several questions regarding the cases of "malicious prosecution". 

Two of those questions are as under:-

  • (i). The spectre of being sued for malicious prosecution in the event of failure would inhibit litigants from bringing cases with merit and in good faith.
  • (ii). Litigation must have an end and so lack of success in one action should not generate another. The failed action for malicious prosecution might even generate a further such action by the original claimant.

The aforesaid questions were countered by the Privy Council in "Crawford Adjusters v Sagicor" case by requiring to prove first the "malice" and then the absence of "reasonable cause" as placing two high hurdles before establishing the remaining elements of "malicious prosecution". This approach was later approved by the Supreme Court of England in the case titled "Willers v. Joyce and another" [2017] 2 All ER 327.

6. Lord Viscount Simonds (Lord Reid Concurring) in the case titled "Gliniski v. Mciver" [1962] A.C. 726 decided that want of "reasonable and probable cause" cannot be inferred from the "malice", and in deciding whether there was "reasonable and probable cause" from the prosecution, the judge cannot ignore the fact of the prosecutor's own belief.

7. Malicious prosecution may be defined as the institution of criminal or civil proceedings for an improper purpose and without probable cause. Every criminal prosecution/inquiry which ended with the clearing of the accused, would not per se entitle such person/accused to file suit for compensation.

Successful proceedings initiated under the law of malicious prosecution required that original proceedings must have been malicious and without cause. Every person had the right to set in motion governmental and judicial machinery for the protection of rights but such person should not infringe corresponding rights of others by instituting improper legal proceedings in order to commit harassment by way of unjustifiable litigation.

To be an actionable tort, the prosecution must have been malicious and terminated in favor of the plaintiff and mere filing of a complaint before police authorities on basis of an allegation was not a "legal wrong" for purpose of suit for malicious prosecution. 2021 CLC 1008 

8. The dignity of man 2021 PLD 405.

Subjecting a person to malicious prosecution could interfere with the right to liberty guaranteed under Art. 9, the right to dignity under Art. 14 and the right to be treated in accordance with law guaranteed under Art. 4 of the Constitution. Such prosecution would inflict financial hardship, litigation cost, mental anguish as well as loss of reputation on the person who was on its receiving ends having been falsely implicated in a matter.

No objective standards for estimating injuries could be found but an inference could be drawn that person subjected to malicious prosecution had suffered loss of time, litigation expenses, mental suffering due to penal charges/arrest/putting behind bars, loss of his right to liberty/dignity, and consequent reputational harm

9. One could sue for being prosecuted in a civil legal process for recovery of damages under "malicious prosecution " but the ingredients shall be the same. 2017 MLD 666  


To wrap up, Malicious prosecution is a tort or civil wrong, that occurs when someone brings a criminal or civil action against another person with the intention of causing harm or damage, and without any reasonable or probable cause.

It is designed to protect individuals from the abuse of the legal system and to compensate them for any damages they may have suffered as a result of being wrongly accused. It is a way for individuals to seek compensation for the damages they have suffered as a result of being wrongly accused and subjected to legal proceedings. To succeed in a claim of malicious prosecution, the plaintiff must show that the defendant acted with malice and that there was no reasonable or probable cause for the legal action.

By understanding the elements of this tort, you can better protect yourself from false accusations and hold those responsible accountable for their actions.

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