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{{Short description|Legal tort of misusing court processes unjustified by legal actions being taken}}
{{Tort law}}
{{Tort law}}
An '''abuse of process''' is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing or perverting regularly issued court process (civil or criminal) not justified by the underlying legal action. In [[common law]] it is classified as a tort distinct from the intentional tort of [[malicious prosecution]]. It is a tort that involves misuse of the public right of access to the [[court]]s. In the United States it may be described as a legal process being commenced to gain an unfair litigation advantage.<ref name="hse">{{cite web |title=What is abuse of process? |url=https://www.hse.gov.uk/enforce/enforcementguide/court/abuse-abuseprocess.htm |website=hse.gov.uk |access-date=22 August 2021}}</ref><ref name=Cleveland>{{cite journal |first=Charles |last=Bretz |title=Abuse of Process, a Misunderstood Concept|journal=Cleveland State Law Review |publisher=Cleveland State University College of Law |date= 1971 |volume=20 |issue=2 |pages=401–408|url=https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2498&context=clevstlrev |access-date=June 9, 2022}}</ref><ref name=Cornell>{{cite web |url=https://www.law.cornell.edu/wex/abuse_of_process |title=Abuse of Process |work=Legal Information Institute |publisher=Cornell Law School |access-date=June 8, 2022}}</ref><ref name=findlaw>{{cite web |url=https://www.findlaw.com/injury/torts-and-personal-injuries/abuse-of-process.html |title=Abuse of Process |work=FindLaw.com |publisher=Thompson-Reuters |access-date=June 8, 2022}}</ref><ref name=Chicago>{{cite journal |first=Joseph |last=Maher |url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4968&context=uclrev |title=Survival of the Common Law Abuse of Process Tort in the Face of a ''Noerr-Pennington'' Defense |journal=University of Chicago Law Review |date=Spring 1998 |pages=627–652 |volume=65|issue=2 |publisher=University of Chicago Law School |doi=10.2307/1600230 |jstor=1600230 |access-date=June 9, 2022}}</ref>
'''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.<ref>''Cartwright v. Wexler, Wexler & Heller, Ltd.'', 369 N.E.2d 185, 187 (Ill. App. Ct. 1977).</ref> Abuse of process can be distinguished from [[malicious prosecution]], in that abuse of process typically does not require proof of [[Malice (law)|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.<ref>''See, e.g.,'' ''Liquid Carbonic Acid Mfg. Co. v. Convert'', 82 Ill. App. 39, 44 (Ill. App. Ct. 1899).</ref> "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.<ref>''Arora v. Chui'', 664 N.E.2d 1101 (Ill. App. Ct. 1996).</ref> 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.
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 (law)|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]]. 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.<ref name=Cleveland/><ref name=Cornell/><ref name=Chicago/><ref name=findlaw/>


⚫
==Distinct from malicious prosecution==
==Principle==
The principles which lead to a finding of an abuse of process in the UK were stated in ''[[Johnson v Gore Wood & Co]]''<ref>[2000] UKHL 65; [2002] 2 AC 1, by [[Lord Bingham]] at 30-1.</ref> by [[Lord Bingham]].


⚫
A cause of action for abuse of process is similar to the action for [[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. 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.<ref name=Cleveland/><ref name=Cornell/><ref name=Chicago/><ref name=findlaw/>
{{cquote|“The underlying public interest is … that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defense in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defense should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not … Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”}}

⚫
==Distinguished from malicious prosecution==

⚫
A cause of action for abuse of process is similar to the action for [[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,<ref>''Neurosurgery & Spine Surgery, S.C. v. Goldman'' 339 Ill. App. 3d 177, 183 (Ill. App. Ct. 2003).</ref> but in malicious prosecution, the wrongful act is the actual filing of the suit itself for improper and malicious reasons.<ref>See also, http://trucounsel.com/index.php/abuse-of-process</ref> 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'',<ref>66 N.Y.S.2d 713 (N.Y. Spec. Term 1946)</ref> 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==
==See also==
*[[Abuse of rights]]
*[[Barratry (common law)|Barratry]]
*[[Barratry (common law)|Barratry]]
*[[Frivolous litigation]]
*[[Frivolous litigation]]
*[[Gaming the system]]
*[[Gaming the system]]
* [[Paper terrorism]]
* [[Pseudolaw]]
*[[Sewer service]]
*[[Sewer service]]
*[[SLAPP]]
*[[SLAPP]]
* [[Spamigation]]
*[[Vexatious litigation]]
*[[Vexatious litigation]]


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[[Category:Tort law]]
[[Category:Tort law]]
[[Category:Common law]]
[[Category:Common law]]
[[Category:Legal terms]]
[[Category:Common law legal terminology]]
[[Category:Abuse]]

Latest revision as of 19:54, 1 April 2024

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An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing or perverting regularly issued court process (civil or criminal) not justified by the underlying legal action. In common law it is classified as a tort distinct from the intentional tort of malicious prosecution. It is a tort that involves misuse of the public right of access to the courts. In the United States it may be described as a legal process being commenced to gain an unfair litigation advantage.[1][2][3][4][5]

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. 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.[2][3][5][4]

Distinct from malicious prosecution

[edit]

A cause of action for abuse of process is similar to the action for 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. 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.[2][3][5][4]

See also

[edit]

References

[edit]
  1. ^ "What is abuse of process?". hse.gov.uk. Retrieved 22 August 2021.
  2. ^ a b c Bretz, Charles (1971). "Abuse of Process, a Misunderstood Concept". Cleveland State Law Review. 20 (2). Cleveland State University College of Law: 401–408. Retrieved June 9, 2022.
  3. ^ a b c "Abuse of Process". Legal Information Institute. Cornell Law School. Retrieved June 8, 2022.
  4. ^ a b c "Abuse of Process". FindLaw.com. Thompson-Reuters. Retrieved June 8, 2022.
  5. ^ a b c Maher, Joseph (Spring 1998). "Survival of the Common Law Abuse of Process Tort in the Face of a Noerr-Pennington Defense". University of Chicago Law Review. 65 (2). University of Chicago Law School: 627–652. doi:10.2307/1600230. JSTOR 1600230. Retrieved June 9, 2022.
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