The courts have said that;

Protection against wrongful litigation is afforded by a cause of action for either abuse of
process or malicious prosecution. The legal theories underlying the two actions parallel one
another to a substantial degree, and often the facts of a case would support a claim under either
theory.
The Courts have drawn the following difference between the causes of action; (Chidnese v.
Chidnese, 708 S.E.2d 725 (N.C. App., 2011));
the distinction between an action for malicious prosecution and one for abuse of process is that
malicious prosecution is based upon malice in causing the process to issue, while abuse of
process lies for its improper use after it has been issued.
An action in tort for malicious prosecution is based upon a defendants malice in causing process
to issue. To prove a claim for malicious prosecution, a plaintiff must establish four elements: (1)
the defendant instituted, procured, or participated in a criminal proceeding against the plaintiff;
(2) without probable cause; (3) with malice; and (4) the criminal proceeding terminated in favor
of the plaintiff.

Essential Elements of Malicious Prosecution

A successful malicious prosecution claim requires all of the following:

beginning or continuing a criminal or civil legal proceeding

without reasonable grounds to believe the allegations of the proceeding

with a purpose other than simply getting a judgment in the proceeding, and that

the proceeding has terminated in the favor of the person being prosecuted or sued (i.e. the
future plaintiff in the malicious prosecution suit must first win the suit against him or
her).
Let's look at these elements a little more closely.

A Proceeding
A criminal proceeding is any process where the government can punish a person -- this ranges
from murder to parking tickets.
A civil proceeding is typically where the plaintiff is not a governmental entity -- although the
defendant might be -- and the plaintiff is suing for money or an injunction.
Even if the people bringing the criminal or civil proceeding think they have a winning case and
are suing for a legitimate reason when they begin the case, they can be guilty of malicious
prosecution if they discover a reason they cannot win during the case, but continue the case for
improper motives anyway.

Reasonable Grounds
The person bringing the original prosecution or lawsuit must have reasonable grounds (also
called probable cause), i.e. a reasonable person in their place would think that the legal action
was legitimate and had a chance of winning.
However, if the person bringing the prosecution or lawsuit knows that the action is illegitimate,
there is no need to prove that a hypothetical reasonable person would also think it was
illegitimate.
Improper Purpose
Typically, if a lack of reasonable grounds is proved, an improper purpose will be assumed. This
means that the plaintiff in a malicious prosecution action does not necessarily need to prove that
the defendant had an improper purpose. However, if the defendant can prove that he or she had a
proper purpose, the plaintiff will not win.
For example, if a defendant was only doing what his or her attorney recommended, even though
the lawsuit had no probable cause, then the defendant may not be guilty of malicious prosecution
if she unreasonably, but mistakenly thought her lawsuit was legitimate.
Favorable Termination
Finally, the plaintiff in a malicious prosecution suit must have successfully defended against and
won the previous illegitimate lawsuit. In other words, if a person was convicted of criminal
charges or had to pay damages in a civil lawsuit, he or she cannot sue for malicious prosecution
based on that criminal or civil legal action.
ABSTRACT TEXT:
To establish a cause of action for malicious prosecution, a plaintiff must plead and prove the
prior action was: (1) commenced by defendant and favorably terminated in plaintiff's favor, (2)
brought without probable cause, and (3) initiated with malice. Abuse of process differs from
malicious prosecution in that abuse of process does not generally refer to commencing an action
or causing process to issue without justification; instead, it refers to misusing or misapplying
process, justified in itself, for an end other than it was designed to accomplish.
The court in so ruling restated the essential elements of malicious abuse of process as follows:
(1) the initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the
defendant in the use of process other than such as would be proper in the regular prosecution of
the claim; (3) a primary motive by the defendant in misusing the process to accomplish an
illegitimate end; and (4)damages.
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Opinion Number: 2009NMSC-007 Filing Date: February 20, 2009 Docket No. 30,656 JAMIE DURHAM and TRAVIS
DURHAM, Plaintiffs-Petitioners, v. SUZANNE GUEST, Defendant-Respondent.

abuse of process
n. the use of legal process by illegal, malicious, or perverted means. Examples inc
lude serving (officially giving) a complaint
to someone when it has not actually been filed, just to intimidate an enemy, filing
a false declaration of service (filing a paper
untruthfully stating a lie that someone has officially given a notice to another pers
on, filing a lawsuit which has no basis at
law, but is intended to get information, force payment through fear of legal entang
lement or gain an unfair or illegal
advantage. Some people think they are clever by abusing the process this way. A f
ew unscrupulous lawyers do so
intentionally and can be subject to discipline and punishment. Sometimes a lawye
r will abuse the process accidentally; an
honest one will promptly correct the error and apologize.