Malicious Prosecution Cause of Action Survives Challenge

March 15, 2017

On February 9, 2017, the Supreme Court of Florida held that Florida’s litigation privilege did not act as a per se bar to a claim for malicious prosecution, settling what had been a conflict between the Third and Fourth District Courts of Appeal. See, Richard Debrincat et al v. Stephen Fischer., No. SC 15-1477.

Fischer brought an action against the Debrincats for malicious prosecution, claiming that they had acted “with malice” towards Fischer in pursuing a case against him without probable cause. The Debrincats moved for summary judgment arguing that the litigation privilege afforded them immunity for their conduct in joining Fisher as a defendant. The Debrincats relied on Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013) (holding that the litigation privilege applied to causes of action for malicious prosecution). The trial court therefore granted summary judgment and entered a final judgment in their favor. On appeal, the Fourth District Court of Appeal reversed and held that the litigation privilege could not be applied to bar the malicious prosecution claim, explaining that Wolfe’s holding essentially “all but abolished” malicious prosecution claims.  The issue was then certified to the Supreme Court of Florida.

The Florida Supreme Court acknowledged the importance and application of both the litigation privilege and a claim for malicious prosecution, citing their longstanding application and history. However, the Court reasoned that the litigation privilege and a cause of action for malicious prosecution could co-exist to balance “the public interest in allowing litigants and counsel to freely and zealously advocate for their causes in court versus protecting the rights of individuals, including the right of an individual to maintain his or her reputation and not be subjected to slander or malicious conduct”. The Court’s holding reaffirms a party’s right to pursue a claim for malicious prosecution where the elements are present, notwithstanding their genesis in the course of litigation. 

For more information on this topic, contact Marjorie S. Hensel at or (813) 204-6443.

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