Charleston Malicious Prosecution Lawyers

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Malicious Prosecution & Abuse of Process Cases in South Carolina

In order to sustain an action for malicious prosecution, a plaintiff must have been charged with some criminal or civil wrong and been exonerated.3 In malicious prosecution cases, the burden is on the plaintiff to show that probable cause exists.

Probable cause is defined as “the extent of such facts and circumstances as would excite the belief in a reasonable mind acting on facts within the knowledge of the prosecutor that the person charged was guilty of a crime for which he has been charged.”4 “Only the facts and circumstances which were known or should have been known to the prosecuting witness at the time of institution of prosecution should be considered.” 5

Proving a Malicious Prosecution Case

Malicious prosecution is the institution or continuation of a legal proceeding with malice and without probable cause.1

To recover for a claim of malicious prosecution, the plaintiff must prove:

  • Institution or continuation of original judicial proceedings, either civil or criminal;
  • By, or at the insistence of, the defendant;
  • Termination of such proceeding in plaintiff’s favor;
  • Malice in instituting such proceedings;
  • Lack of probable cause, and
  • Resulting injury or damage.2

Malice is defined as “the intentional doing of a wrongful act without just cause or excuse” and “may be inferred from a want of probable cause.”6 The termination of the previous proceedings must have been in the plaintiff’s favor. 7

Defenses to malicious prosecution include the plaintiff’s guilt, good faith reliance on full informed counsel, and governmental immunity. “Irrespective of the questions of malice and want of probable cause, the plaintiff’s guilt is a complete defense to an action for malicious prosecution except where the innocence of the plaintiff in the malicious prosecution either is conceded or is not challenged.” 8

To avail himself of the defense of advice of counsel, a defendant must have sought the advice in good faith, acted in good faith and believed the charge to be true. 9 The South Carolina Tort Claims Act at S.C. Code § 15-78-10 et seq. and the defenses found therein may also be implicated in malicious prosecution cases.

Damages You Can Pursue in Your Case

Actual damages recoverable include mental pain and suffering, fright, nervousness, indignity, humiliation, embarrassment, and injury to reputation. Special damages recoverable include discomfort or injury to health, loss of time, depravation of society or family, reasonable attorney’s fees, and financial loss in present or prospective employment.

Abuse of Process

Abuse of process is the employment of legal process for some purpose other than what it was intended by law to affect.10 South Carolina Courts have distinguished abuse of process from malicious prosecution by saying that the former “involves the malicious misuse or perversion of the process, after its issuance, for an end not lawfully warranted by it.”11

To recover for a claim of abuse of process, the plaintiff must prove:

  • Ulterior purpose and
  • Willful act in the use of the process not proper in the regular conduct of the proceeding.12

The tort of abuse of process does not have an element of intent to harm or an element of actual malice.13 If process is used to gain an objective which is not legitimate in the use of the process, an ulterior purpose exists.14

Under this tort, liability exists not because a party seeks to gain collateral advantage by using legal process, but because the collateral objective was the sole or paramount reason for acting. The South Carolina Tort Claims Act at S.C. Code § 15-78-10 et seq. and the defenses found therein may also be implicated in abuse of process cases.

Discuss Your Case with Our Legal Team

It is important to retain counsel who are experienced in evaluating and litigating malicious prosecution and abuse of process cases to maximize the value of your case. Understanding what actions constitute these torts and being able to apply South Carolina law to the facts of your case are crucial.

If you suspect that you are the victim of malicious prosecution or abuse of process, please contact us online or call to discuss the legal options available to you.


1 Elletson v. Dixie Home Stores, 231 S.C. 565 (1947)

2 Jordan v. Deese, 317 S.C. 260 (1995)

3 Elletson v. Dixie Home Stores, 231 S.C. 565 (1947)

4Guider v. Churpeyes, Inc., 370 S.C. 424 (Ct. App. 2006).

5Crowell v. Herring, 301 S.C. 424 (Ct. App. 1990).

6 Elletson v. Dixie Home Stores, 231 S.C. 565 (1947).

7Ruff v. Eckerds Drugs, Inc. 265 S.C. 563 (1975).

8Smith v. Harris Teeter Supermkt., Inc. 285 S.C. 445 (1985).

9Melton v. Williams, 281 S.C. 182 (Ct. App. 1984).

10Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206 (1967).

11 Johnson v. Painter, 279 S.C. 390 (1983).

12 Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206 (1967).

13 Swicegood v. Lott, 379 S.C. 346 (Ct. App. 2008).

14 Davis v. Epting, 317 S.C. 315 (1994).

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