Open main menu
Home
Random
Recent changes
Special pages
Community portal
Preferences
About Wikipedia
Disclaimers
Incubator escapee wiki
Search
User menu
Talk
Dark mode
Contributions
Create account
Log in
Editing
Abuse of process
Warning:
You are not logged in. Your IP address will be publicly visible if you make any edits. If you
log in
or
create an account
, your edits will be attributed to your username, along with other benefits.
Anti-spam check. Do
not
fill this in!
{{Short description|Legal tort of misusing court processes unjustified by legal actions being taken}} {{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|url-access=subscription }}</ref> 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== 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/> ==See also== *[[Abuse of rights]] *[[Barratry (common law)|Barratry]] *[[Frivolous litigation]] *[[Gaming the system]] * [[Paper terrorism]] * [[Pseudolaw]] *[[Sewer service]] *[[SLAPP]] * [[Spamigation]] *[[Vexatious litigation]] ==References== <references/> {{abuse}} {{Miscarriage of Justice}} {{DEFAULTSORT:Abuse Of Process}} [[Category:Abuse of the legal system]] [[Category:Tort law]] [[Category:Common law]] [[Category:Common law legal terminology]]
Edit summary
(Briefly describe your changes)
By publishing changes, you agree to the
Terms of Use
, and you irrevocably agree to release your contribution under the
CC BY-SA 4.0 License
and the
GFDL
. You agree that a hyperlink or URL is sufficient attribution under the Creative Commons license.
Cancel
Editing help
(opens in new window)
Pages transcluded onto the current version of this page
(
help
)
:
Template:Abuse
(
edit
)
Template:Cite journal
(
edit
)
Template:Cite web
(
edit
)
Template:Miscarriage of Justice
(
edit
)
Template:Short description
(
edit
)
Template:Tort law
(
edit
)