Abuse of process

Legal tort of misusing court processes unjustified by legal actions being taken

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An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing or perverting regularly issued court process (civil or criminal) not justified by the underlying legal action. In common law it is classified as a tort distinct from the intentional tort of malicious prosecution. It is a tort that involves misuse of the public right of access to the courts. In the United States it may be described as a legal process being commenced to gain an unfair litigation advantage.[1][2][3][4][5]

The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: (1) the existence of an ulterior purpose or motive underlying the use of process, and (2) some act in the use of the legal process not proper in the regular prosecution of the proceedings. Abuse of process can be distinguished from malicious prosecution, in that abuse of process typically does not require proof of malice, lack of probable cause in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution. Typically, the person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse.[2][3][5][4]

## Distinct from malicious prosecution

[edit]

A cause of action for abuse of process is similar to the action for malicious prosecution in that both actions are based on and involve the improper use of the courts and legal systems. The primary difference between the two legal actions is that malicious prosecution concerns the malicious or wrongful commencement of an action, while, on the other hand, abuse of process concerns the improper use of the legal process after process has already been issued and a suit has commenced. In abuse of process, the legal process is misused for some purpose which is considered improper under the law. Thus technically, the service of process itself—in the form of a summons—could be considered abuse of process under the right circumstances, e.g. fraudulent or malicious manipulation of the process itself, but in malicious prosecution, the wrongful act is the actual filing of the suit itself for improper and malicious reasons. The three requirements of malice, lack of probable cause in the issuance of the process, and a termination of the prior proceeding favorable to the plaintiff, are essential elements for malicious prosecution. Most jurisdictions do not require any of these three elements in order to make out a prima facie case for abuse of process.[2][3][5][4]

## See also

[edit]

* Abuse of rights
* Barratry
* Frivolous litigation
* Gaming the system
* Paper terrorism
* Pseudolaw
* Sewer service
* SLAPP
* Spamigation
* Vexatious litigation

## References

[edit]

1. ^ "What is abuse of process?". hse.gov.uk. Retrieved 22 August 2021.
2. ^ a b c Bretz, Charles (1971). "Abuse of Process, a Misunderstood Concept". Cleveland State Law Review. 20 (2). Cleveland State University College of Law: 401–408. Retrieved June 9, 2022.
3. ^ a b c "Abuse of Process". Legal Information Institute. Cornell Law School. Retrieved June 8, 2022.
4. ^ a b c "Abuse of Process". FindLaw.com. Thompson-Reuters. Retrieved June 8, 2022.
5. ^ a b c Maher, Joseph (Spring 1998). "Survival of the Common Law Abuse of Process Tort in the Face of a Noerr-Pennington Defense". University of Chicago Law Review. 65 (2). University of Chicago Law School: 627–652\. doi:10.2307/1600230. JSTOR 1600230. Retrieved June 9, 2022.

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Abuse

Types|

* Adverse childhood experiences
* Anti-social behaviour
* Bullying
* Child abuse
* neglect
* sexual
* military
* marriage
* Cruelty to animals
* Disability abuse
* military draft
* Domestic abuse
* Elder abuse
* Financial
* Marriage
* Gaslighting
* Harassment
* Humiliation
* Incivility
* Institutional abuse
* Intimidation
* Neglect
* Persecution
* Professional abuse
* Psychological abuse
* Physical abuse
* Police brutality
* Religious abuse
* Social abuse
* Sexual abuse
* Stalking
* Structural abuse
* Substance abuse
* Alcohol abuse
* Surveillance abuse
* Referee and umpire abuse
* Verbal abuse
* more...

Related topics|

* Abusive supervision
* Abuse of power
* Controlling behavior
* Complex post-traumatic stress disorder
* Dehumanization
* Denial
* Destabilisation
* Discrimination
* Exaggeration
* Isolation
* Just-world fallacy
* Lying
* Manipulation
* Minimisation
* Narcissism
* Playing the victim
* Psychological projection
* Psychological trauma
* Psychopathy
* Rationalization
* Sexual grooming
* Traumatic bonding
* Victim blaming
* Victimisation
* Victimology

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Miscarriage of justice

Types of misconduct|

* Prosecutorial misconduct
* Police misconduct
* Police corruption
* Selective prosecution
* Malicious prosecution
* Selective enforcement
* Abuse of process
* Attorney misconduct
* Bad apples
* Abuse of discretion
* Entrapment
* False arrest
* Gaming the system
* Justice delayed is justice denied
* Legal malpractice
* Kangaroo court
* Sentencing disparity
* Show trial
* Trial by media
* Sharp practice
* Jury tampering
* Witness tampering
* Brady disclosure
* Spoliation of evidence
* Civil wrong

False evidence|

* False confession
* Forced confession
* False accusation
* Rape
* Child sexual abuse
* Police perjury
* Mistaken identity
* Eyewitness memory
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* Cross-race effect
* Misinformation effect
* Tampering with evidence
* Frameup

Wrongful convictions|

* List of wrongful convictions in the United States
* List of exonerated death row inmates
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* Overturned convictions in the United States
* Wrongful execution

Advocacy|

* Innocence Project
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Contributing factors|

* Correlates of crime
* Race and crime
* Race in the United States criminal justice system
* Sex differences in crime
* Judicial misconduct
* Innocent prisoner's dilemma
* Obstructionism
* Offender profiling
* Racial profiling
* Perverting the course of justice
* Blue wall of silence
* Loophole
* Ineffective assistance of counsel
* Prosecutor's fallacy

Norms and remedies|

* Legal ethics
* Exculpatory evidence
* Right to a fair trial
* Actual innocence
* Equal Protection Clause
* Innocence Protection Act

Related concepts|

* Capital punishment in the United States
* Batson v. Kentucky
* List of death row inmates in the United States

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