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KimberlyLaw, Attorney and Real Estate Broker
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In a civil matter, what is the difference between Malicious

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In a civil matter, what is the difference between Malicious Prosecution and Abuse of process?
Thank you.
Hello, I am happy to assist you today.

Malicious prosecution is when someone brings forward a cause of action that is not valid and is only brought forward for the purpose of causing harm to the other party.

Abuse of process would be where a party uses the rules of procedure to work in their favor and try to bully the other party, or bury them unnecessarily in paperwork merely for the purpose of causing them harm, when it is not actually necessary for the case.

Let me know if you have any questions.
Customer: replied 4 years ago.

Thank you for your response.

If A filed a law suit vs B few years ago and the Court ruled that A did not have a cause of action and ordered A to pay B the costs.


Few years later if A filed the same law suit vs B, in your opinion is it a Malicious Prosecution or Abuse of process?

Ok, thank you for the additional information, but it is not enough for me to answer your new question.

The key here is whether the case is regarding exactly the same subject matter. You can not bring another action against the same party for the same cause of action if the court already made a decision dismissing the case because you didn't have a cause of action.

The only exception is where the court dismissed the case "without prejudice" which means that you are free to refile the case.

So you need to look at the court order and see if it states that. If not, then you can not bring this new action and yes would be acting improperly to try to do so. You would be liable for all of party B's attorney fees and costs in brining this.

Let me know if this helps,
Customer: replied 4 years ago.

Thank you.

After A filed the action few years ago, A filed motion for temporary and permanent restraining orders by claiming that A had all kind of easements over B's property and they should have right to come to B's property whenever they wanted and to do whatever they wanted without obtaining B's permission.

The Judge denied A's motion and the Judge even wrote the order that A did not have a cause of action.

A continued refusing to answer the discoveries and 2nd Judge issued an order to compel A to respond to the discovery (A was the plaintiff).

A disobeyed 2nd Judge's order and filed a dismissal without prejudice.

The 3rd judge ordered A to pay B the costs.


If A decides to file a new case by claiming the same that A has assessments, is it a Abuse of process or Malicious Prosecution in your opinion?

Thank you.

Ok, thank you again for more information. It's hard to help without all the facts.

I can only speak based on the info you have given me. If the dismissal was without prejudice, then A can refile the case and that would not be malicious prosecution unless A knows that there is no valid cause of action and is just doing it to cause harm to B. That is the key factor.

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