capable of so terminating. (iii) That the prosecution was instituted against him without any reasonable or probable cause. (iv) That the prosecution was instituted with a malicious intention. (v) That he has suffered special damage when the
89 proceedings are other than criminal proceedings, unless the proceedings are such as from their very nature are calculated to injure the credit of the Plaintiff. Prosecution for an offence must have been instituted by the Defendant against the Plaintiff. To "prosecute" here is implied to mean to set the law in motion which is done by an appeal to some person clothed with judicial authority in regard to that matter. For the Tort of Malicious Prosecution, the mere setting of law in motion is not the only criterion. The conduct of the Defendant, before and after making the charge, must also be taken into consideration. The Privy Council has clearly laid down that to found an action for damages for Malicious Prosecution based upon Criminal Proceedings the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution; but the test is whether such proceedings have reached a stage at which damage to the Plaintiff results. Read: LETANG Vs. COOPER [1964] 2 All ER 929. BOWEN, LJ., in Abrath v North Eastern Railway Co. (CA) (1883) LR 11 QBD 79 had this to say about the Tort of Malicious Prosecution: ".... In an action for Malicious Prosecution the plaintiff has to prove, first that he was innocent and that his innocence was pronounced by the tribunal before which the accusation
