A. P. LEGAL SERVICES PVT. LTD.
Legal Empowerment through Professional Excellence

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.

Process as used here , 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. The person who abuses legal  process is interested only in fulfilling  some improper purpose that is collateral to the proper object of the process and that offends justice, such as an arrest which is not justified or an unfounded criminal prosecution.

WHAT IS ABUSE OF PROCESS?

The principles which lead to a finding of an abuse of process in the UK were stated in JOHNSON V. GORE WOOD & COBY by Lord Bingham. The law says that a case should come to an end and also no person shall be vexed twice in the same matter. This also emphasis on public interest. Lord Bingham said “ 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.”

Abuse of process is defined as a misuse of a validly issued process. It is, therefore, important to understand the impact of the term, "valid process." "Process" refers to procedure. For e.g., "Process" is the means through which a court compels appearance of a party. The broad construction of the term "process" is illustrated by the case of SPELLENS V. SPELLENS In Spellens a wife brought an action seeking separate maintenance. Subsequently, the husband initiated a separate action to recover possession of certain personal property. The husband offered to discontinue his action if the wife would reciprocate. The wife cross-complained for abuse of process, alleging that the true purpose of her husband's action was to coerce her discontinuance of the original action. In sustaining the wife's claim for abuse of process, the court stated: The improper purpose of a misuse of a process usually takes the form 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.

The nineteenth century English case of GRANGER V. HILL was the first instance in which relief was granted for an abuse of process. In Granger the plaintiff borrowed money from the defendant, giving him a mortgage on plaintiff's vessel as security. The plaintiff retained the registration of the vessel in his own name. Defendant attempted to collect the debt ten months before maturity. When the plaintiff was unable to pay, the defendant caused him to be arrested and jailed. As a condition for his release from prison, the plaintiff was forced to give up the registration of the vessel. In holding for the plaintiff and establishing abuse of process as a separate tort, the court said: This case is altogether distinct from cases of malicious prosecution or arrest in which it is always necessary to allege and prove the former proceeding is at an end. It is an action for abusing the process of law, by employing it to extort property to which the defendants had no right. That is of itself a sufficient cause of action without alleging that there was no reasonable or probable cause for the suit itself. Since Granger, abuse of process has been variously defined. In order to recover for abuse of process, a plaintiff must establish:-

(1)Defendant's misuse of a valid process, properly issued by the court in           the course of a legal proceeding,

 (2) Defendant's ulterior motive in misusing the process and

(3) Damage to the plaintiff as a result of defendant's conduct.

Abuse of Process is an intentional tort of Misuse of Legal Procedure. Abuse of Process involves the knowing misuse of public access to courts. Tort law defines Abuse of Process as a misuse or perversion of the court procedure and due process without grounds for legal action. Process refers to the summons from the court. Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose.

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.

The elements of malicious prosecution are:-

1. The plaintiff was prosecuted by the defendant.

2. The prosecution was instituted without proper and reasonable cause.

3. The defendant acted maliciously and not with an intention to carry the law into effect.

4. The proceedings complained of terminated in favour of the plaintiff.

5. The plaintiff suffered damage as a result of the prosecution.

In another case of GIRIJA PRASAD Vs. UMA SHANKAR PATHAK the plaintiff  Uma Shankar pathak was a practicing advocate at Panna in M.P and  he was also a Jan Sangh leader and had started an agitation on the question of food scarcity in the city and one Jan Sangh worker had gone to a hunger strike. On January  2 1965 Girija Singh a sub inspector was deputed outside the collectorate to control the crowd that had collected there to support the agitation. Then there were some bullet shots made from the revolver of the sub inspector. He stated that while he was grappling with some person who was assaulting him the revolver got fired mistakingly. On that date Girija Singh had lodged an FIR stating that he was assaulted by some person and his watch was snatched and also the plaintiff Uma Shankar pathak was present at the scene and was instigating the crowd against him .The case was investigated and the plaintiff was arrested on 15th jan and released on bail on 18th jan.He was finally acquitted on june 30th 1965 . The plaintiff then sued 4 persons for malicious prosecution , the sub inspector Girija Prasad who lodged the F.I.R. , the S.H.O. of that area who entertained the report and two other persons involved with the case.

It was found by the M.P. High court that the report prepared by Girija Prasad was false and at that relevant time the plaintiff was not present there but was appearing in front of a civil judge Justice Verma. Eventually Girija Prasad was held for malicious prosecution and others acquitted of the charge and not held liable for malicious prosecution.

In another recent case of VISHWESHWAR SHANKAR RAO DESHMUKH AND ANR V. NARAYAN VITHOBA PAT IL the plaintiff was the sarpanch of the village Shirputi in the year 1980 and the defendant no. 1 was in the service as a Gram sewak under the ZilaParishad and the defendant no.2 was a teacher in a school run by the ZilaParishad. The plaintiff contended that he made several reports against the defendants for their misconduct. The report was made against defendant no.1 for his misbehaviour, defalcation and forgery of accounts and also against defendant no.2 for his absence from duties and other irregularities. It is contended that both the defendants then hatched a conspiracy to involve the plaintiff in a criminal conspiracy and such that the defendant no.1 had lodged an F.I.R. with the police that was assaulted by the plaintiff while he was discharging his duties. On the basis of the F.I.R and investigation done by the police, criminal proceedings were launched against the plaintiff.. The plaintiff was acquitted of the charges against him. It is contended that on the basis of the F.I.R. lodged by the defendant no.1, plaintiff was arrested but the police and the criminal proceeding against him was with malicious intention on the part of the defendants. The prosecution was launched without any reasonable cause and due to the false prosecution, there was a loss to his prestige and reputation and his status was lowered down in the society being a sarpanch and a politician.

DECISION TAKEN BY THE COURT

The court decided that the plaintiff was maliciously prosecuted by the defendants without any reasonable and probable cause, and therefore they are liable to pay damages worth Rs 12,500.00 to the plaintiff.

A person who is prosecuted maliciously is usually entitled to recover damages from the person who instituted the malicious action. These damages are monetary damages. They include actual losses, and may include pain and suffering since the tort is an intentional tort.The tort of malicious prosecution exists because the courts want to protect an innocent party from being subject to harassing litigation. Otherwise, a person could use the court system or the threat of criminal or civil prosecution improperly.  When the victim of an abuse of process proves that he was arrested or that his property was seized, he is allowed to recover all damages caused by the arrest or seizure.

CONCLUSION

Abuse of process is a legal cause of action that allows a person to seek redress against another who has deliberately used the legal process for an ulterior purpose or motive other than that for which it was designed. The essence of an abuse of process claim is that lawful process was perverted or used by an individual for an illicit purpose to intimidate, unduly burden or harm another.
To prevail in an abuse of process claim, a plaintiff must demonstrate that the defendant used the courts for an illegitimate or improper purpose and that misuse of the civil process has harmed him.

 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.

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. An abuse of process occurs when a person misuses a legal process after the litigation has commenced. In C.B. Aggarwal vs.P.Krishna Kapoor A.I.R.1995 DELHI 154 it was held that when legal process is abused it results in a tort and the legal process is abused when it is diverted from its original course just to achieve improper end. Thus it is a tort. In abuse of civil proceedings the plaintiff has to prove many things like malice i.e. the purpose was something other than to bring law into effect. Malice means wrongful and improper motive. The plaintiff must also prove that the defendant acted without probable and reasonable cause and that such proceedings have resulted in interference with his liberty or property or affected his reputation.

For example if the civil proceedings have resulted in arrest of the plaintiff or if they are in the nature of bankruptcy or proceedings they may adversely affect plaintiff’s reputation. Abuse of process is defined as a misuse of a validly issued process. It is, therefore, important to understand the impact of the term, "valid process." "Process" refers to procedure. For e.g., "Process" is the means through which a court compels appearance of a party.

Each state establishes the statute of limitations period within which a person must file an abuse of process claim. The limitations period begins the day the cause of action happened, which is usually the date on which process was initiated against the aggrieved party. In most jurisdictions, the statute of limitations for an abuse of process claim is either two or three years.