D. Defenses

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

D. Defenses

1. Plaintiff's Guilt

One defense may be to offer as evidence facts known to the defendant subsequent to prosecution (such as the fact of plaintiff's guilt).³⁵ This defense, however, is narrow. In Smith v. Harris Teeter Supermarket, Inc., the court declared, "[i]rrespective of the questions of malice and want of probable cause, the plaintiff's guilt is a complete defense to an action for malicious prosecution except where the innocence of the plaintiff in the malicious prosecution either is conceded or is not challenged."³⁶

2. Good Faith Reliance on Fully Informed Counsel

Additionally, good faith reliance upon advice of fully informed counsel may establish probable cause sufficient to provide a defense.³⁷ To assert this defense, the defendant must show she sought the advice in good faith, acted in good faith and believed the charge was true.³⁸ The defendant must also present evidence that she made a fair, full and truthful disclosure of all the facts to her attorney.³⁹ Although consultation with an attorney is not conclusive of good faith, it is one of the circumstances to be considered by the jury in determining if the defendant acted in good faith in swearing out the warrant.⁴⁰

3. Governmental Immunity

The South Carolina Tort Claims Act (SCTCA) bars suits against the government (but not against the individual) for conduct which constitutes "actual malice."⁴¹ However, because a plaintiff need not show actual malice to successfully maintain an action for malicious prosecution, the Court of Appeals has said the action is not barred by the Act because of its elements.⁴² The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.⁴³

4. Actions Against Attorneys

A suit for malicious prosecution does not ordinarily lie against an attorney who filed suit on behalf of his client.⁴⁴ In his professional capacity, the attorney is not liable, except to his or her client and those in privity with his client, for injury allegedly arising out of the performance of his professional activities.⁴⁵ Accordingly, an attorney who acts in good faith with the authority of his client (even in the absence of probable cause) is not liable to a third party in an action for malicious prosecution.⁴⁶ Such a suit is properly brought against the party to the original action, not the attorney representing him.⁴⁷

However, an attorney may be liable for acts taken outside the scope of the...