Abuse of process is the use of legal process to achieve an unlawful purpose. It is a wrong committed during the course of litigation. The tort of abuse of process has two elements; an ulterior purpose, and a willful act. The willful act is an overt act done after the institution of a civil action. Mere institution of a civil action is not a tort of abuse of process even if there is an ulterior motive in bringing the action or action is brought on a groundless claim. In Meidinger v. Koniag,[i] the court held that institution of a civil action for an improper purpose is not an abuse of process. The tort of abuse of process must contain an overt act or threat not authorized by the legal process with an ulterior purpose.
The elements essential to sustain a civil action for abuse of process are; 1) an illegal, improper or perverted use of legal process that is not authorized by the process, 2) an ulterior motive or purpose and 3) an injury resulted from irregularity.[ii] In Herring v. Citizens Bank & Trust Co.,[iii] the court held that the test of an abuse of process is whether the process is used to achieve some end that is without the regular purview of the process.
However in the institution and prosecution of a civil action, if the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint, then there is no tort of abuse of process. Also in case of a lawsuit instituted to obtain damages or a collection procedure to recover a debt there is no tort of abuse of process even if the process is instituted with bad intentions or without probable cause.[iv] A civil action instituted for the purpose other than the cause of action stated in the complaint is a tort of abuse of process. A person using a counterclaim to blackmail for dropping a civil action is guilty of abuse of process.[v] Also a civil litigation used to damage another person’s business is a tort of abuse of process. However in Crackel v. Allstate Ins. Co.,[vi] the court held that a mere failure to settle or refusal to make a settlement offer cannot constitute abuse of process.
[i] 31 P.3d 77 (Alaska 2001)
[ii] Herring v. Citizens Bank & Trust Co., 21 Md. App. 517 (Md. Ct. Spec. App. 1974)
[iii] 21 Md. App. 517 (Md. Ct. Spec. App. 1974)
[iv] Vanover v. Cook, 260 F.3d 1182 (10th Cir. Kan. 2001)
[v] Torok v. Yost, 176 Ga. App. 149 (Ga. Ct. App. 1985)
[vi] 208 Ariz. 252 (Ariz. Ct. App. 2004)