Abuse of process
Encyclopedia
Abuse of process is a cause of action in tort
arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action.
It is a common law
intentional tort. It is to be distinguished from malicious prosecution
, another type of tort that involves misuse of the public right of access to the court
s.
The elements of a valid cause of action
for abuse of process in most common law jurisdictions are as follows: (1) the existence of an ulterior purpose or motive underlying the use of process, and (2) some act in the use of the legal process not proper in the regular prosecution of the proceedings. Abuse of process can be distinguished from malicious prosecution
, in that abuse of process typically does not require proof of malice
, lack of probable cause
in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution. "Process," as used in this context, includes not only the "service of process," i.e. an official summons or other notice issued from a court, but means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court. Typically, the person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse.
in that both actions are based on and involve the improper use of the courts and legal systems. The primary difference between the two legal actions is that malicious prosecution concerns the malicious or wrongful commencement of an action, while, on the other hand, abuse of process concerns the improper use of the legal process after process has already been issued and a suit has commenced. In abuse of process, the legal process is misused for some purpose which is considered improper under the law. Thus technically, the service of process itself—in the form of a summons—could be considered abuse of process under the right circumstances, e.g. fraudulent or malicious manipulation of the process itself, but in malicious prosecution, the wrongful act is the actual filing of the suit itself for improper and malicious reasons. As noted above, the three requirements of malice, lack of probable cause in the issuance of the process, and a termination of the prior proceeding favorable to the plaintiff, are essential elements for malicious prosecution. Most jurisdictions do not require any of these three elements in order to make out a prima facie case for abuse of process.
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action.
It is a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
intentional tort. It is to be distinguished from malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
, another type of tort that involves misuse of the public right of access to the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s.
The elements of a valid cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
for abuse of process in most common law jurisdictions are as follows: (1) the existence of an ulterior purpose or motive underlying the use of process, and (2) some act in the use of the legal process not proper in the regular prosecution of the proceedings. Abuse of process can be distinguished from malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
, in that abuse of process typically does not require proof of malice
Malice
Malice may refer to:* Malice , a legal term describing the intent to harm* Jerry Tuite , American professional wrestler also known by the ring name Malice-Entertainment:...
, lack of probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution. "Process," as used in this context, includes not only the "service of process," i.e. an official summons or other notice issued from a court, but means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court. Typically, the person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse.
Principle
The principles which lead to a finding of an abuse of process in the UK were stated in Johnson v. Gore Wood & Co by Lord Bingham.Distinguished from Malicious Prosecution
A cause of action for abuse of process is similar to the action for malicious prosecutionMalicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
in that both actions are based on and involve the improper use of the courts and legal systems. The primary difference between the two legal actions is that malicious prosecution concerns the malicious or wrongful commencement of an action, while, on the other hand, abuse of process concerns the improper use of the legal process after process has already been issued and a suit has commenced. In abuse of process, the legal process is misused for some purpose which is considered improper under the law. Thus technically, the service of process itself—in the form of a summons—could be considered abuse of process under the right circumstances, e.g. fraudulent or malicious manipulation of the process itself, but in malicious prosecution, the wrongful act is the actual filing of the suit itself for improper and malicious reasons. As noted above, the three requirements of malice, lack of probable cause in the issuance of the process, and a termination of the prior proceeding favorable to the plaintiff, are essential elements for malicious prosecution. Most jurisdictions do not require any of these three elements in order to make out a prima facie case for abuse of process.
Illustration
A cause of action for abuse of process may lie in situations where a criminal proceeding is brought against a defendant for improper motives. For example, in Lader v. Benkowitz, a pleading was held to state a good cause of action for abuse of process when it alleged that defendant hotel owner had threatened to have the plaintiff arrested on a warrant issued at the behest of the defendant on a charge of disorderly conduct. The allegedly improper motive was the hotel owner's underlying purpose of compelling plaintiff to pay a bill owed for plaintiff's alleged rental of a room in defendant's hotel. It was claimed that through the unlawful use of the warrant and threat of arrest, the defendant was able to obtain the sum of money allegedly owed by plaintiff. In denying defendant's motion to dismiss, the court admonished that it was sufficient to show that regularly issued process had been used to accomplish an improper purpose in order to set forth a cause of action for abuse of process. The fact that the plaintiff had yielded to defendant's threat to have her arrested under the warrant did not diminish the cause of action, because it was clear that the plaintiff actually had been arrested for the purpose of compelling her to pay the cost of the room.See also
- BarratryBarratryBarratry is the name of four legal concepts, three in criminal and civil law, and one in admiralty law.* Barratry, in criminal and civil law, is the act or practice of bringing repeated legal actions solely to harass...
- Frivolous litigationFrivolous litigationIn law, frivolous litigation is the practice of starting or carrying on law suits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related to legal merit...
- Gaming the systemGaming the systemGaming the system can be defined as "[using] the rules and procedures meant to protect a system in order, instead, to manipulate the system for [a] desired outcome".According to James Rieley, structures in organizations Gaming the system (or bending the rules, playing the system, abusing the...
- Sewer serviceSewer serviceSewer service is an epithet for the intentional failure to provide service of process on a named party in a lawsuit, in order to prevent the party from having a chance to respond....
- SLAPP
- Vexatious litigationVexatious litigationVexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a...