The Vexing Matter of Vexatious Litigation

August 14, 2009

By: David K. Jaffe

A vexatious suit is the appellation given in Connecticut to the cause of action created by statute for the malicious prosecution of a civil suit, and which is governed by the same general principles as the common-law action of malicious prosecution.[1] The elements of a common-law or statutory cause of action for vexatious litigation are identical.[2]

To establish a cause of action for vexatious suit, a plaintiff must prove, inter alia, that a prior suit was brought without probable cause. See Conn. Gen. Stat. § 52-568.[3] Lack of probable cause for institution of the original proceedings is the very gist of the action for vexatious litigation.[4] The existence of probable cause is an absolute protection and what facts, and whether particular facts, constitute probable cause is always a question of law.[5]

The test for deciding whether a litigant acted with probable cause is well settled. For purposes of a vexatious suit action, the legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable good faith belief in the facts alleged and the validity of the claim asserted.[6]

The other essential elements of a common-law claim for vexatious litigation (in addition to lack of probable cause) are malice and a termination of suit in the plaintiff's favor. Malice may be inferred from lack of probable cause.[7] The want of probable cause, however, cannot be inferred from the fact that malice was proven.[8]

A statutory action for vexatious litigation under Conn. Gen. Stat. § 52-568 differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages. In either type of action, however, the existence of probable cause is an absolute protection against an action for malicious prosecution.[9]

A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint.[10]

Advice of counsel is a complete defense to an action of vexatious litigation when it is shown that the defendant instituted a civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge, or which he was charged with knowing.[11] The fact that the attorney's advice was unsound or erroneous will not affect the result.[12]


[1] Schaefer v. O.K. Tool Co., 110 Conn. 528, 534 (1930).

[2] Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 596 (1998).

[3] Conn. Gen. Stat. § 52-568 provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."

[4] 30 Am. Jur. 2d Proof of Facts, p. 226 (1982).

[5] Vandersluis v. Weil, 176 Conn. 353, 356 (1978).

[6] DeLaurentis v. New Haven, 220 Conn. 225, 256 (1991).

[7] Zenik v. O'Brien, 137 Conn. 592, 596-97 (1951); Thompson v. Beacon Valley Rubber Co., 56 Conn. 493 (1888).

[8] McGann v. Allen, 105 Conn. 177, 187 (1926).

[9] Brodrib v. Doberstein, 107 Conn. 294, 296 (1928).

[10] Vandersluis v. Weil, 176 Conn. 353, 356 (1978).

[11] Verspyck v. Franco, 274 Conn. 105 (2005); see also Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582 (1998).

[12] Vandersluis v. Weil, 176 Conn. 353, 356 (1978).