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 the overt act done after 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. Tort of abuse of process should 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] 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] A legal process used in the seizure of property to harass or injure the owner of property is an abuse of process.[iii] 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. 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 criminal proceedings a person securing arrest and detention under a lawful warrant is not guilty of an abuse of process even if s/he has an ulterior motive in taking such action. However, if the criminal process or civil or criminal arrest is used for an object not within its scope there is an abuse of process. The use of criminal process in an effort to collect a civil debt is an abuse of process. However, the criminal process is not an abuse of process unless some action is taken by the person aggrieved.
[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] RAILROAD CO. v. HARDWARE CO., 138 N.C. 174 (N.C. 1905)