A claim for malicious prosecution of a civil claim (lawsuit) is a lawsuit filed by a person or entity who was previously wrongfully sued in a civil lawsuit. The elements of a claim for malicious prosecution vary from state to state, but the plaintiff generally must prove: (1) the institution or continuation of civil proceedings (a lawsuit) against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff's favor; and (6) special damages.

A claim for malicious prosecution of a criminal prosecution or case is similarly a tort claim or cause of action that requires the plaintiff to prove: (1) the initiation or continuation of a criminal prosecution; (2) lack of probable cause for the criminal prosecution; (3) the criminal prosecution was motivated by malice; and (4) the criminal prosecution was terminated by dismissal of the case or charges or a finding of not guilty by the jury or judge.

In Georgia, a claim for malicious prosecution, whether for a civil or criminal case, is recognized as a legal cause of action. For a civil claim, the plaintiff must establish the following elements: (1) the wrongful initiation or continuation of a civil lawsuit; (2) instigation of the proceedings by the defendant; (3) malice in commencing the lawsuit; (4) lack of probable cause for the lawsuit; (5) a favorable termination of the proceedings for the plaintiff; and (6) the suffering of special damages as a result. For a criminal malicious prosecution claim, the plaintiff must prove: (1) the wrongful initiation or continuation of criminal charges; (2) absence of probable cause for the prosecution; (3) malice as the driving force behind the prosecution; and (4) a termination of the prosecution in a manner indicative of the innocence of the accused, such as a dismissal or an acquittal. It is important for anyone considering such a claim to consult with an attorney to understand the nuances of these requirements and to assess the viability of their case under Georgia law.