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reprisal by civil actions, criminal prosecutions being essential to the maintenance of an orderly
society.” Id. at 1082-83.
To present a prima facie case for malicious prosecution, “[t]he plaintiff must allege and
prove that: (1) the prosecution was set on foot by the defendant and was terminated in a manner
not unfavorable to the plaintiff; (2) it was instituted or procured by the cooperation of the
defendant; (3) it was without probable cause; and (4) it was malicious.” Id. at 1082.
“Probable cause in malicious prosecution actions is defined as ‘knowledge of such a state
of facts and circumstances as excite the belief in a reasonable mind, acting on such facts and
circumstances, that the plaintiff is guilty of the crime of which he is suspected.’” Lee v.
Southland Corp., 219 Va. 23, 26 (1978) (quoting Va. Ry. & Power Co. v. Klaff, 123 Va. 260, 266
(1918)). “The test of probable cause is to be applied as of the time when the action complained
of was taken.” Id. (quoting Bain v. Phillips, 217 Va. 387, 394 (1976)). When facts relating to
probable cause in a malicious prosecution action are in dispute, “the issue is one of fact to be
resolved by the triers of fact.” Id. at 27.
III. Appellees’ motions were special pleas in bar.
Cline contends that because malicious prosecution requires a lack of probable cause, the
appellees’ pleas in bar function as prohibited pleas to the general issue and therefore the circuit
court erred by dismissing her complaint at this stage. We disagree.
“A plea is a discrete form of defensive pleading. Distinguished from an answer, a plea
does not address the merits of the issues raised by the complaint. Rather, it alleges a single set of
facts or circumstances . . . which, if proven, constitutes an absolute defense to the claim.” 1
Charles E. Friend & Kent Sinclair, Friend’s Virginia Pleading and Practice § 8.01-4 (2026).
Pleas include both pleas of the general issue and special pleas. 1 Friend, supra, § 8.01-4. Jump to an indexed page (13 of 13)