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 West Virginia, a claim for malicious prosecution, whether arising from a civil lawsuit or a criminal case, allows a person to seek redress if they were wrongfully subjected to legal proceedings. For a civil claim, the plaintiff must establish that the defendant initiated or continued a lawsuit without probable cause, acted with malice, and that the lawsuit ended in the plaintiff's favor, among other elements. The plaintiff must also show that they suffered special damages as a result of the wrongful lawsuit. In the context of a criminal prosecution, the plaintiff must prove that the defendant initiated or continued the criminal proceedings without probable cause, with malice, and that the proceedings ended in a manner indicative of the plaintiff's innocence, such as a dismissal or acquittal. These claims are designed to compensate the wrongfully accused for the damages they have suffered due to an unjust legal action against them.