Saturday, October 20, 2012

Abuse of process is a cause of action in Torts by Anushtha Saxena

Abuse of process is a common law intentional tort. It is a cause of action and arises when one of the parties makes a misuse of legal proceedings civil or criminal which are not justified by the nature of process. The courts have named four torts involving the misuse of litigation. These are: malicious abuse of process, malicious use of process, malicious prosecution, and abuse of process. Malicious abuse of process and abuse of process are same torts they are different in name only. An abuse of process occurs when a person misuses a legal process after the litigation has commenced. On the other hand, a cause of action for malicious prosecution is based upon the malicious initiation of litigation. The pivotal issue in determining abuse is whether a plaintiff has an ulterior motive for filing a civil suit against the defendant. For example, if a creditor files suit for a debt owed when the real reason is to force the debtor to pay off another unrelated debt, that's an abuse of process. Other examples would include filing a civil action when the ulterior purpose is to extort money or other property or using the legal process solely to harass, intimidate or inconvenience someone else.
1. For example, malicious prosecution might occur where A sues B for breach of contract, knowing that there was no breach. On the other hand, abuse of process might occur where, during the course of the breach of contract proceedings, A has arrested B and put in jail, intending to coerce a larger settlement from B.
2. Another example is if A caused B to be arrested and jailed for a debt, knowing that B owed no such debt, B would have an action for malicious prosecution. Further, if as a condition for B's release, A extorted certain property from B, B would also have an action for abuse of process.

The elements for abuse of process are:-
1.An ulterior purpose - The first element, ulterior purpose, usually consists of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money with use of the process as a threat or a club.

The ulterior motive was established directly in COPLEA V. BYBEE. Here the plaintiff proved that the defendant levied on and sold property which was not properly subject to levy and sale. The plaintiff further proved that the defendant's purpose in obtaining the illegal levy and sale was to affect the sale of the property rather than to fulfil the claim that he had against the plaintiff. This illicit purpose constituted the defendant's ulterior motive.

2. A wilful act in the use of process not proper in the regular conduct of the proceeding. -The second element involves an overt act, but actions taken in the regular course of litigation, such as threatening suit or requesting discovery, are not a proper basis for an abuse of process claim even if done with an ulterior motive.
3. The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to affect his reputation. The plaintiff must establish that he suffered damage.


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