MBE Rules · Torts
Wrongful Litigation Torts
Malicious prosecution / abuse of process
The rule
Malicious prosecution requires institution of proceedings without probable cause, malice, favorable termination, and damages; abuse of process is using process for an ulterior purpose with a willful improper act.
In plain English
Wrongful litigation torts involve two main claims: malicious prosecution and abuse of process. Malicious prosecution occurs when someone initiates legal proceedings without probable cause and with malice, while abuse of process involves using legal procedures for an improper purpose, rather than for what they were intended.
Worked example
A plaintiff sues a defendant for breach of contract, knowing there is no valid claim. The defendant wins the case and later sues the plaintiff for malicious prosecution. The court finds that the plaintiff acted with malice and without probable cause, leading to a ruling in favor of the defendant.
Memory hook
No cause, no case – malicious prosecution needs both.
The trap
Exams may confuse students by mixing elements of malicious prosecution and abuse of process, leading candidates to misidentify the applicable tort. Watch for keywords that indicate the intent behind the legal action.
How examiners test it
Questions often present scenarios where a party initiates litigation, requiring candidates to identify whether the facts support a claim of malicious prosecution or abuse of process based on the specific elements of each tort.
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