There is the sentiment that parties can say and do whatever they want in a judicial proceeding and all actions will be exempt and immune under a litigation privilege. Such sentiment is misguided. There are consequences for malicious / bad faith conduct and statements that cause damage to the adverse party including a claim for malicious prosecution. The litigation privilege does NOT bar a claim for malicious prosecution because, as mentioned above, there are consequences for malicious conduct. See Debrincat v. Fischer, 2017 WL 526508 (Fla. 2017).
This issue was recently confirmed by the Florida Supreme Court where the Court explained that a claim for malicious prosecution exists when there is the following:
(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.
Debrincat, 2017 WL at *2 quoting Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994).
As the Court reasoned, there would never be a claim for malicious prosecution if the litigation privilege barred malicious or bad faith conduct that occurred in the original proceeding.
Another recent case, AGM Investors, LLC v. Business Law Group, P.A., 42 Fla. L. Weekly D886b (Fla. 2d DCA 207), also involved a claim for malicious prosecution (and related tort claims) against a party and law firm. Here, the Second District went a step further to state that “tortious conduct will not be protected by the litigation privilege as being preliminary to future litigation unless that future litigation was actually contemplated in good faith and under serious consideration.” AGM Investors, supra (finding that law firm’s recording of condominium assessment liens was not absolutely protected under the litigation privilege unless such action was necessarily preliminary to future lien enforcement litigation contemplated in good faith).
Remember, just like anything else, there are potential consequences to decisions and actions made with malice / bad faith, even if such conduct was made prior to or during the course of an original judicial proceeding.
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