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Malicious Prosecution and Defamation as Counterclaims – Illinois

Author: LegalEase Solutions 

Question Presented:

  1. What are probable civil claims under Illinois law, against a complainant whose frivolous criminal complainant was discharged for lack of evidence, and has now filed a civil suit based on the same fact
  2. Are punitive damages and/or attorneys fees available to the defendant?

Short Answers

  1. Malicious prosecution and defamation are two counterclaims that are available for an accused in such circumstances.
  2. Yes, punitive damages may be available and Illinois Supreme Court Rule 137 permits the award of attorneys fees for frivolous claims.


  1. Malicious prosecution

Malicious prosecution is a common remedy and counter claim against false implication of an accused person.

  1. Elements of Malicious prosecution

Malice is defined as the intent, without justification or excuse, to commit a wrongful act. To prove malicious prosecution one has to show  the following elements Johnson v. Target Stores, Inc., 341 Ill. App. 3d 56 (Ill. App. Ct., 2003), Burge v. Harvey, 1997 U.S. Dist. LEXIS 15248 (D. Ill., 1997), Rodgers v. Peoples Gas, Light & Coke Co., 315 Ill. App. 3d 340 (Ill. App. Ct., 2000), Ferguson v. City of Chicago, 343 Ill. App. 3d 60, 795 N.E.2d 984, 2003 Ill. App. LEXIS 1033, 277 Ill. Dec. 316 (Ill. App. Ct., 2003)

  • The commencement or continuation of an original criminal proceeding by the
  • The termination of the proceeding in favor of the plaintiff.
  • The absence of probable cause for such proceeding:

In order to prevail on a claim for malicious prosecution, one must establish that the other party lacked probable cause to proceed with the charges against the former accused. Taylor v. Peoples Gas Light & Coke Co., 275 Ill. App. 3d 655 (Ill. App. Ct., 1995).  In an action for damages because of malicious prosecution, the good reputation of the has a direct bearing on the question of probable cause and may, therefore, be proven in chief, especially when such reputation is known to both the parties. Murphy v. Davids, 181 Cal. 706 (Cal., 1919)

  • The presence of malice on the part of one party

Malice is defined as the initiation of a prosecution for any reason other than to bring a party to justice  Salmen v. Kamberos, 206 Ill. App. 3d 686 (Ill. App. Ct., 1990),
(Rodgers v. Peoples Gas, Light & Coke Co.). However, lack of probable cause does not itself establish malice. Malice, as an element of malicious prosecution, is proved by showing that the prosecutor was actuated by improper motives.

In the case at bar, the first two elements are factually established, as there was a criminal prosecution initiated against the accused, and such criminal action was summarily discharged due to lack of evidence.  Moreover, the remaining two elements will likely be satisfied based on the specific facts in this case.  The accused was never at the scene of the incident, and the criminal court summarily dismissed the criminal charges for want of evidence.  Malice may be inferred by the court based on the accused’s pro athlete status, and the inference may be made that the accuser only made the charges against the accused to obtain a monetary settlement.

Moreover, attorney fees incurred in defending a criminal prosecution are recoverable where the malicious prosecution suit is based on the institution of those criminal proceedings, and it would be proper for a jury to consider attorney fees in awarding actual damages.  See Voga v. Nelson, 115 Ill.App.3d 679 at 683-683.

  1. Limitation period for malicious prosecution

Under the Illinois Tort Immunity Act, no civil action may be commenced in any court unless it is commenced within one year from the date that the injury was received or the cause of action accrued. The limitation period for a claim of malicious prosecution does not accrue until the date criminal proceedings are terminated.

  1. Defamation

A statement is considered defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with them. Here one need not plead or prove actual damage to their reputation to recover for a statement that is actionable per se. Van Horne v. Muller, 185 Ill. 2d 299 (Ill., 1998) Illinois law recognizes five categories of statements which are considered actionable defamation per se:

  • Those imputing the commission of a criminal offense
  • Those imputing infection with a loathsome communicable disease
  • Those imputing an inability to perform or want of integrity in the discharge of

duties of office or employment

(iv)       Those that prejudice a party, or impute lack of ability, in his or her trade,

profession or business and

(v)      Those imputing adultery or fornication.

It seems that the facts of the present case fit in the first category. Furthermore, punitive damages are granted by the courts if defamation or malicious prosecution is proved. See Gibson v. Phillip Morris, Inc., 292 Ill.App.3d 267 (1997).

  • Punitive Damages and Attorney Fees

Punitive, vindictive, or exemplary damages are allowed in Illinois where a wrongful act is characterized by circumstances of aggravation, such as willfulness, wantonness, malice, or oppression, but to warrant an allowance of such damages the act complained of must not only be unlawful but must partake of a wanton and malicious nature.  See People ex re. Henderson v. Redfern (1969), 104 Ill.App. 2d 132, 136, 243 N.E.2d 252, 254.

The general rule in Illinois is that attorney fees are not recoverable unless they are explicitly authorized by statute.  See Ritter v. Ritter, 381 Ill. 549, Sanelli v. Glenview State Bank, 126 Ill. App. 3d 411.  The rule is well established that attorney fees and the ordinary expenses and burdens of litigation are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and this rule applies equally in courts of law and in courts of equity.

  1. Punitive or exemplary damages

Generally, in Illinois punitive or exemplary damages are allowed only when a wrongful act is accompanied by aggravated circumstances, including fraud, willfulness, wantonness, or malice.  See Anvil v. Ltd. Partnership v. Thornhill 85 Ill.App.3d 1108 (1980) at 1119.  See also City of Chicago v. Martin (1868), 49 Ill. 241; Quad County Distributing Co., Inc. v. Burroughs Corp. (1979), 68 Ill.App.3d 163, 24 Ill.Dec. 818, 385 N.E.2d 1108; Zokoych v. Spalding (1976), 36 Ill.App.3d 654, 344 N.E.2d 805; Stribling DeJong (1973), 13 Ill.App.3d 889, 300 N.E.2d 782; 15 Ill.L. & Prac. Damages s 132 (1968).  Punitive damages may also be awarded when a wrongful act is performed with reckless disregard for the rights of others (Bucher v. Krause (7th Cir. 1952), 200 F.3d 576, 585.  Although such damages are generally disfavored in the law, they are awarded where willful or wanton conduct can be shown or as a means of deterrence.  See Moorehead v. Lewis (N.D.Ill.1977), 432 F.Supp. 674, 679).  The purpose of exemplary damages is to punish a defendant so as to teach him not to repeat his intentional, deliberate, and outrageous conduct, and to deter others from similar conduct.  See George v. Transit Authority 58 Ill.App.3d 692, 693 (1976).

  1. Attorney fees as sanctions under Rule 137

Supreme Court Rule 137 prohibits filing of improper pleadings and permits sanctions against a party filing improper pleadings, including the recovery of attorney fees.  Rule 137 reads in part:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation…If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee.

(Emphasis added).  In Sanchez v. City of Chicago, 352 Ill.App.3d 1015 (2004) the court held that the purpose of Rule 137 is to prevent the filing of false and frivolous lawsuits.  Id. At 1020.  In this case the court held that the rule prohibiting filing of improper pleadings was violated by a pedestrian who submitted false witness statements in a trip and fall against the city.  The witnesses testified that they had not read the statements before they signed them.  The court noted that the pedestrian should have made a reasonable inquiry into the truth of the statements.  The court cited Whitmer v. Munson, 335 Ill.App.3d 501 (2003) in support of the position that where a plaintiff files a verified complaint containing allegations, which upon making a reasonable inquiry, the plaintiff should have known were untrue, that the plaintiff had violated Rule 137.  Id. At 1021.  See also J.F. Heckinger v. Welsh, 339 Ill.App.3d 189 at 191 (2003) “Rule 137 is designed to penalize the litigant who pleads false or frivolous matters or who brings a lawsuit without any basis in the law”.


The accused may have at least two counter claims against the accuser in this case, namely that of defamation and malicious prosecution.  Punitive damages may be sought under both counter claims, and courts have awarded attorney fees for defending against malicious prosecution.  Finally, Rule 137 provides an avenue to sue the accuser for attorney fees and costs for filing a frivolous suit.