The tort of malicious prosecution is said to be committed when the defendant maliciously as well as without reasonable and probable cause a civil or criminal prosecution against the plaintiff which eventually terminates in the favor of the plaintiff .In this case the law intends to hold a balance between two parties that have opposing social policy interests which are the interest of safeguarding persons from harassment by unjustifiable litigation and the interest in encouraging citizens to help in enforcement of the law where the offenders are brought to justice (Kodilinye, 2000).
Civil tort of prosecution
This is committed when a person induces a prosecutor of the public to bring a civil action against another person without a probable cause or believe in the basis of the civil action. The accused victim of this tort recovers the costs of defending himself against the civil action and the costs are the attorney’s fee (Slawson, 1996).
A person commits malicious prosecution tort if he brings a civil action without probable cause or belief in the basis of the action and he is said to have committed a tort of bad faith breach if he defends a contract action without a probable cause or a belief in the basis of the defense side. It usually include dishonestly bringing a claim and bad faith may consists of dishonestly defending against one (Slawson, 1996).
The victim of malicious prosecution must bring a separate action in order recover the costs of litigation he incurred in the civil action he had to defend against. The American rule prohibits the defendant from recovering his costs of litigation in the same action. The plaintiff in a bad faith is allowed to recover the litigation cost that was incurred in the same action.
Elements of proof
In order for one to win the case, the plaintiff must proof that the case was ended in favor of the plaintiff that an active role was played by the defendant in the original case, that there was no probable cause or reasonable grounds for the defendant to support the original case.When the recovery by the plaintiff in a civil action is later reversed on appeal, this does not mean that the action was terminated in favor of the respondent. If the plaintiff in the original case won on submission of fabricated evidence as well as fraudulent activity, the reversal of this kind basing on the argument of this ground is deemed a termination that is in favor of the responded. A settlement between the plaintiff and the respondent is not a termination in favor of the respondent and the court can not consider a bargain in a criminal case or civil case to be a termination in favor of the defendant (Farlex, 2011).
Rowe V Port of Spain CC(1978) High court, Trinidad and Tobago, No1413 0f 1976(unreported)
A stairway that led to the first floor of the Town Hall in the Port of Spain was barred by a chain and a crash barrier was placed in front of the chain. The plaintiff who was a clerk of the council removed the chain and the barrier and began to mount it on the stairway a constable (D)who was in duty as a payroll escort in the council called the plaintiff and advised him not to use the stairway because the mayor had instructed him that no one should pass there. The plaintiff did not comply and he was arrested by D who dragged him to the police cell and latter took him to the resident magistrate where he was charged of assaulting D and using obscene language.
The magistrate dismissed the charges and then the plaintiff sued D and the council for assault, false imprisonment as well as malicious prosecution (Kodilinye, 2000).
The magistrate believed that Corporal Dalrymple was for the duty of escort that was in connection of the payroll on the morning of 24th July 1975. The evidence that was provided by Inspector Kerr was rejected because he had detailed him the duty of enforcing a directive that restricts the use of staircase on the Knox Street entrance of the Town Hall that excluded members of the public and employees of the City Council from using it. The Judge found that the unfortunate incident occurred because of the officiousness of Corporal Dalrymple who desisted from his duty as a pay-roll escort on that morning in order to scotch the plaintiff’s use of the staircase which is forbidden. In this case it was the defendant (Dalrymple) who assaulted the plaintiff and arrested him wrongfully without an offense and falsely imprisoned him for over an hour.
The workers were not informed that that particular staircase is out of bounds through proper channels and any breach of such directive was to open disciplinary action and this was not challenged by The departmental head Dr. Siung. There was no primary evidence in regard to the circular containing the directive in question or instruction to the police as to its enforcement has been produced. The magistrate found all the three elements present because the plaintiff established that the two offenses alleged to have been committed by him and the charges were dismissed and determined in his favor. The charge found that when Dalrympe brought the case, he had no reasonable ground or probable cause to do so and such an action was malicious and that he had no instruction to bestir himself. This was gross misuse of office to drag the plaintiff who was known to him and the council to the police charge room and to the magistrate’s court under the disguise of assault and obscene language. The City Council was vicariously responsible for his tortuous acts which are within the scope of his employment (Kodilinye, 2000).
Another example to demonstrate this is where Dan calls the police to complain that Linda stole his car and insist that the police should arrest Linda and they do so. After an investigation, she is indicated for grand larceny. Dan is the complaining witness and his accusation sets criminal proceedings against Linda who is the defendant. The instigator (Dan) later becomes the defendant in the civil case of malicious prosecution. The sole reason was that he accused Linda was because they broke up recently and that while they were dating she told him that she would do anything to own a car like that his. This is not a probable cause that Linda committed a crime (Statsky, 2010).
The plaintiff must proof that the case was ended in favor of the plaintiff that an active role was played by the defendant in the original case, that there was no probable cause or reasonable grounds for the defendant to support the original case.