Abuse of Process-Elements


Abuse of process is defined as the use of civil or criminal process[i] against another to accomplish a purpose for which the process was not designed[ii].  A person who uses a legal process to fulfill a purpose for which it was not meant will be liable for the harm causes by such abuse of process.

Elements of  abuse of process are:

  • improper use of the court’s process;
  • ulterior or improper motive of the defendant in exercising such illegal use of process;
  • damage to the plaintiff resulted from such abuse of process[iii].

Sometimes, a cause of action for abuse of process can be sustained even if there is no seizure of the person or property of plaintiff or the coercion attempted by the improper use of process becomes unsuccessful[iv].

While in some other instances, it is required that a person who brings a claim for abuse of process will have to plead and prove that injury or damages resulted from the irregularity of the process[v].

Whereas, ulterior motive or purpose required in an abuse of process action can be in the form of coercion to obtain a collateral advantage that is not properly involved in the proceeding[vi].  However, if the process is used only for the purpose for which it was designed and intended, then mere ill will or spite towards an adverse party in a proceeding will not constitute an ulterior or improper motive[vii].

The question whether malice is an element of abuse of process depends upon the jurisdictions.  In some jurisdictions malice is not considered as a necessary element of the tort of abuse of process except where punitive or exemplary damages are sought.  While in some other jurisdictions, proof of malice is required in order to sustain a claim for abuse of process.

[i] Tranchina v. Arcinas, 78 Cal. App. 2d 522 (Cal. App. 1947)

[ii] Drum v. Bleau, Fox & Associates, 107 Cal. App. 4th 1009 (Cal. App. 2d Dist. 2003)

[iii] Callaway v. Parkwood Village, LLC, 2000 OK 24 (Okla. 2000)

[iv] Nienstedt v. Wetzel, 133 Ariz. 348 (Ariz. Ct. App. 1982)

[v] Campbell v. Lyon, 26 Fed. Appx. 183 (4th Cir. Md. 2001)

[vi] Preferred Props. v. Indian River Estates, 276 F.3d 790 (6th Cir. Ohio 2002)

[vii] Sage International, Ltd. v. Cadillac Gage Co., 556 F. Supp. 381 ( E.D. Mich. 1982)