Abuse of Process

Abuse of process 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 courts.

The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: it is the malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action. "Process" in this context is used in the same sense as in "service of process," where "process" refers to an official summons or other notice issued from a court. 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.

For example, a grocer rents a small building but complains to the landlord about the inadequate heating system, leaks in the roof, and potholes in the driveway. When the landlord fails to make the required repairs, the grocer decides the property is worth less and deducts $100 a month from his rent payments. The landlord starts a lawsuit to either recover the full amount of rent due or to oust the grocer and regain possession of the premises. The law in their state is fairly clear on the question: a tenant has no right to force a landlord to make repairs by withholding a portion of the rent. The landlord knows that she has a good chance of winning her case, but she also wants to teach the grocer a lesson. On the first three occasions that the case comes up on the court calendar, the grocer closes his store and appears in court, but the landlord does not show up. On the fourth occasion, the landlord comes to court and wins her case. The grocer, in a separate action for abuse of process, claims that the landlord is using the court's power to order him to appear simply to harass him. The court agrees and awards him money damages for lost income and inconvenience.

Abuse of process is a wrong committed during the course of litigation. It is a perversion of lawfully issued process and is different from malicious prosecution, a lawsuit started without any reasonable cause.




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