Abuse of process is the tort that exists when an individual obtains an advantage in litigation over his/her opponent through the malicious and unfounded use of some regular legal process or procedure[i].
According to common law rule, an action for abuse of process cannot be instituted by a party who is not discharged of guilt. However, favorable termination of prior proceedings is not considered as an element of a cause of action for abuse of process.
Therefore, it is not necessary to establish that the original action in which the process issued has terminated in favor of the plaintiff[ii]. The reasoning given for this rule is that a cause of action for abuse of process arises when an abuse occurs, rather than when the proceedings terminate.
In Glidewell v. Murray-Lacy & Co[iii], a warrant was served to the debtor and subsequently he was arrested. Later on, the debtor and creditor negotiated a settlement which terminated the criminal prosecution of the debtor. The debtor then filed suit for abuse of process, claiming that the creditor improperly used the criminal law to collect a debt.
The court observed that the actions of the creditor were justifiable because the creditor also had a private remedy. The court also found the settlement to be proper and not improperly induced.
[i] Black’s Law Dictionary, 25 (4 th ed. 1955)
[ii] Chatterton v. Janousek, 280 F.2d 719 (D.C. Cir. 1960)
[iii] 124 Va. 563 (Va. 1919)