DIFFERENCE IN MALICIOUS PROSECUTION AND ABUSE OF PROCESS TORTS
The Court of Appeals on Aug. 19th, 2011 explained the difference in the tort of malacious prosecution and the tort of abuse of process. The main factor is the difference in required proof.
Malacions prosecution tort:
“(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding.” Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981).
The plaintiff in a malicious prosecution action has the burden of establishing a lack of probable cause. Collins v. Williams, 10 S.W.3d 493, 496 (Ky. App. 1999).
the fact that the plaintiff filed the action upon advice of counsel is a complete defense. Mayes v. Watt, 387 S.W.2d 872, 873 (Ky. 1964). The advice of counsel need not be sound.
Abuse of process tort:
On the other hand, “abuse of process” consists of the employment of legal process for some purpose other than that which it was intended by the law to effect.
See: Ct. of Appeals ruling on August 19, 2011 from Pulaski County, GARCIA, BOBBY D/B/A AUTOBAHN AUTOMOTIVE VS. WHITAKER, LARRY