A process served in good faith is a defense to an action for abuse of process. If the plaintiff was following the advice of his/her counsel that resulted in abuse of service, this fact may be considered in measuring the damages, but will not be a defense against the liability. One can defeat a claim for abuse of process if it can be proved that such process was initiated as part of statutory requirements. It has to be proved that the process or publication was related to the action, and that it was made to achieve the objects of the litigation. Such a publication should involve litigants and other authorized participants.
There are certain absolute privileges that protect attorneys from defamation that occurs in the course of a judicial proceeding. However, such protection will not be available in abuse of process actions. If the want of probable cause is considered an element of the action in abuse of process claim, it can be considered a valid defense. An attorney can escape from the liability of accidental abuse of process by apologizing and correcting the error.
In Umansky v. Urquhart, 84 Cal. App. 3d 368 (Cal. App. 4th Dist. 1978), an action for abuse of process was brought by a doctor against the attorneys who filed a decedent’s claim for wrongful death against the doctor. The wrongful death claim had originally requested punitive damages. Defendant attorneys later deleted the punitive damages cause of action, plaintiff, the doctor sued defendant attorneys for abuse of process, alleging that defendants had filed suit although the punitive damages cause was prohibited by statute. The court held that although the statute invoked by plaintiff doctor prohibited recovery of punitive damages, the constitutionality of that prohibition had not been tested in the appellate courts and the privilege protecting defendant attorneys was applicable in plaintiff’s claim.