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Want of Probable Cause

Probable cause is defined as the reasonable belief, founded on known facts established after a reasonable pre filing investigation, that a claim can be established to the satisfaction of a court [i].

A want of probable cause need not be established in order to claim for abuse of process [ii].  However, facts which shows that the person commencing the litigation had knowledge or had reason to know that his/her claim was groundless will be relevant to prove that the process was used for an ulterior purpose [iii].

In Wal Mart Stores v. Binns [iv], plaintiffs were managers of Wal Mart and respondent was an employee of Wal Mart.  The respondent was arrested on the compliant given by the plaintiffs alleging theft.  However, the charges against the respondent were abandoned for lack of evidence.  Subsequently, the respondent filed an appeal against the plaintiff for negligent prosecution, abuse of process and malicious prosecution.

The court observed that on the abuse of process claim, the respondent failed to produce evidence of an abuse or coercive act after the arrest warrant was issued.  The court also found that the respondent provided no evidence that the process was initiated to accomplish an ulterior purpose for which it was not designed.  The court added that on the malicious prosecution claim, again the respondent failed to produce any evidence of malice.

[i] Weststar Mortg. Corp. v. Jackson, 133 N.M. 114 (N.M. 2002)

[ii] United States v. Chatham, 415 F. Supp. 1214 (N.D. Ga. 1976)

[iii] Fishman v. Brooks, 396 Mass. 643 (Mass. 1986)

[iv] 341 Ark. 157, 160 (Ark. 2000)

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