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. 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. The tort of abuse of process must contain an overt act or threat not authorized by 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.[i] However in 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.
Misuse of discovery or deposition procedures is a tort of abuse of process. However taking ordinary steps in connection with taking, transcribing, and filing of the deposition is not an abuse of process. [ii] In Rentea v. Rose,[iii]the court held that abuse of process in civil discovery may lie when: (1) the party who employs the process of a court specifically and primarily intends to increase the burden and expense of litigation to the other side; and (2) use of that process is not for the legitimate purposes of advancing the party’s interests in the ongoing litigation.
A legal process used in the seizure of property to harass or injure the owner of property is an abuse of process.[iv] An action for abuse of legal process can be made if; seizure of property is not made as per the terms of process, or is made in excess, or is made knowing that it is exempt from attachment, or knowing that it does not belong to debtor. However in Layton v. Chase,[v] the court held that mere garnishment of money or property which may be claimed as exempt is not sufficient for an action for abuse of process.
A person in lawful custody of seized property has a duty to take proper care of the property. If there is failure to exercise proper care then an action for abuse of process can be made. If a person having lawful custody of the seized property made loss or damage to the property by misuse or improper care he is guilty of the tort of abuse of process. In Snydacker v. Brosse,[vi] the court held that if an officer abuses a process by an act not warranted by the process, the officer is responsible for the damages ensuing from his unlawful act. Similarly a sheriff who has property in his custody is liable for its loss if it is caused by failure to exercise reasonable care and diligence in preserving the property.[vii]
[i] Herring v. Citizens Bank & Trust Co., 21 Md. App. 517 (Md. Ct. Spec. App. 1974)
[ii] Thornton v. Rhoden, 245 Cal. App. 2d 80 (Cal. App. 2d Dist. 1966)
[iii] 2008 Tenn. App. LEXIS 242 (Tenn. Ct. App. Apr. 25, 2008)
[iv] RAILROAD CO. v. HARDWARE CO., 138 N.C. 174 (N.C. 1905)
[v] 82 S.D. 270 (S.D. 1966)
[vi] 51 Ill. 357 (Ill. 1869)
[vii] Phillips v. Eggert, 145 Wis. 43 (Wis. 1911)