In an action for abuse of process, it is the duty of the plaintiff to prove the alleged harm.  The court decides the question of existence of malice.  Malice may be proved by evidencing a demand for collateral advantage, or inferred from what is said or done about the process.  Actions prior to issuance of process and filing the suit can also provide valuable evidence to the existence of malice.  The standard of proof is the balance of probabilities.  Any statement made by the defendant to the plaintiff can prove the ulterior motive and perversion of legal process.  However, abuse of process cannot be inferred from a mere mistake.  Proof of abuse of process requires some act beyond the initiation of a lawsuit.[i]

In an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his/her favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause.[ii]

In Warwick Dev. Co. v. GV Corp., 469 So. 2d 1270, 1274 (Ala. 1985), the Court held that “where process is manipulated to achieve some collateral advantage, whether it be denominated extortion, blackmail or retribution, the tort of abuse of process will be available to the injured party.”

Where a person knowingly, willfully, or intentionally sues out a writ of garnishment, and has it levied on the wages of another for the purpose of extorting money from him with the knowledge that he does not owe the money, he is liable in an action of trespass on the case for abuse of process, since the act was done with malice.[iii]

[i] Joseph v. Markovitz, 27 Ariz. App. 122, 126 (Ariz. Ct. App. 1976)

[ii] Tarver, 291 Ala. at 28, 277 So. at 333

[iii] Dudley v. Stansberry, 5 Ala. App. 491 (Ala. Ct. App. 1912)