The Florida Supreme Court will resolve a conflict between the Third and Fourth Districts regarding whether the litigation privilege can be used to bar a claim for malicious prosecution. See No. SC15-1477. In the case before the Court, the Fourth District held that “the litigation privilege cannot be applied to bar the filing of a claim for malicious prosecution where the elements of that tort are satisfied.” See Fischer v. Debrincat, 169 So. 3d 1204 (Fla. 4th DCA 2015). On the other hand, the Third District in Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), reached the opposite conclusion. Both cases are discussed below.
It is first important to understand the nature of the litigation privilege and the tort of malicious prosecution. The litigation privilege protects judges, parties, counsel, and witnesses from being sued for any act they perform which is required or permitted by law and that occurs during a judicial proceeding, so long as the act has some relation to the judicial proceeding. Generally speaking, malicious prosecution is the misuse of the legal machinery for an improper purpose. The tort is committed when a person—acting with malice and without probable cause—engages in conduct causing the commencement or continuation of a judicial proceeding against a person.
In Wolfe, the Third District affirmed a judgment on the pleadings in favor of the defendants on the plaintiff’s cause of action for malicious prosecution, concluding that the defendants’ acts of filing a complaint and briefly prosecuting a civil case were protected by the litigation privilege because those actions “indisputably occurred during and were related to” the judicial proceeding. The court reasoned: “The filing of a complaint, which initiates the judicial proceedings, obviously ‘occurs during the course of a judicial proceeding’ and ‘relates to the proceeding.’” The Third District was “also unpersuaded by the argument that, unlike other torts, the application of the litigation privilege to the tort of malicious prosecution would effectively eliminate malicious as a cause of action [altogether].”
The Fourth District in Fischer believed that the Third District “went too far in its application of the litigation privilege.” The lynchpin of its analysis was that “[i]f the litigation privilege could apply to bar a malicious prosecution action, this would mean that the tort of malicious prosecution would be effectively abolished in Florida—or, at the very least, eviscerated beyond recognition.” The Third District supported its conclusion with other Florida cases and a decision from the California Supreme Court that have recognized that the litigation privilege does not bar a malicious prosecution action. The Court also found it “unfathomable that the Florida Supreme Court intended to cloak the commencement or continuation of a judicial proceeding with absolute immunity when such conduct occurs as an element of the tort of malicious prosecution.”
This article will be updated once the supreme court decides the case.