Abuse of Legal Process
Context
The law allows persons to bring a legal action, provided that they act in good faith. The threshold for bringing legal proceedings is relatively low.
If, however, the proceedings are taken for the wrong motive or without bona fide belief in their merit, then the civil wrong of abuse of process may be constituted, giving the defendant a right to compensation.
Bringing proceedings incorrectly will not of itself give the innocent party a right to damages. The defendant will generally be entitled to recover the legal costs in the relevant proceedings. Generally, the unsuccessful party to civil litigation is penalised by the obligation to pay the defendant’s cost.
The courts have an inherent discretion to prevent abuse of the legal process. Proceedings may be struck out if they are frivolous and vexatious. They may represent an abuse of the process.
Criminal & Civil Torts
There are separate civil wrongs of malicious prosecution and abuse of civil process. Abuse of civil process is the civil equivalent of malicious prosecution.
The mere fact of being wrongly prosecuted or sued does not of itself give an entitlement to a claim for malicious prosecution or abuse of process. In each case, it must be shown that the claim and use of the process was an abuse undertaken in bad faith, without any reasonable basis or belief.
As with malicious prosecution, the claim must fail or be bound to fail. The failure must not be brought merely arising from a conflict of evidence.
Civil Proceedings
The tort / civil wrong to misuse the legal process in bad faith. It requires the improper use of the legal system for some wrong purpose or motive.
The institution of the action must be in bad faith. It must have been wrongly maintained and must be bound to fail.
The civil proceedings must be commenced and maintained without reasonable and probable cause. It must be for an improper or wrongful purpose or motive and be a misuse of the legal process for an extraneous reason. Damage must be shown to be incurred by the defendant.
Proceedings Unviable
Liability might be established where it can be shown that the proceedings are brought notwithstanding legal advice to the contrary. It may arise where proceedings are issued tactically with no good faith belief in their validity for an extraneous and improper purpose.
The viability of the claim will be relevant. If a person has obtained legal advice and there is a bona fide claim, it would be difficult to show malice.
The case must fail entirely or be bound to fail. It may be withdrawn.
Liability may arise where, at a point in time in which, it is demonstrable that the proceedings are no longer sustainable if they are kept alive for illegitimate tactical reasons. Liability may arise at least from that point in time.
Witnesses
Witnesses, who are not parties to the proceedings, are generally immune for what they say in proceedings. There is no general claim for abuse of process where a person has been injured by evidence which constitutes perjury.
Defamation law accords privilege to a witness’s testimony. The courts have taken the view that there is strong public policy justification for maintaining the legal immunity of witnesses.
There is no civil remedy for perjury alone. They may, of course, be liable for perjury, which is a criminal offence.
Mental Requirements
It must be shown that the claim and use of the legal process was an abuse, undertaken in bad faith without reasonable and probable cause,
without any reasonable basis or belief. It must be proved that the claimant did not act in good faith for a proper motive. Under older formulations, malice is required.
As in the context of malicious prosecution, malice implies an improper motive.
Proof of Abuse
Where the defendant has been advised by his counsel that his case is unlikely to succeed, this will be a factor which may go towards showing the requisite abuse of process. In contrast, proceedings taken on the basis of bona fide legal advice are unlikely to constitute an abuse of process.
The tort may be committed where a person deliberately uses the legal process to wear down or injure the defendant without bona fide assertion of legal right.
Mental Elements
It must be shown that there was a lack of reasonable and probable cause to institute the proceedings. The matter is viewed from the perspective of a reasonable man in the circumstances rather than a lawyer.
Reasonable and probable cause is an honest belief in the claim, founded on reasonable grounds. It may be based on circumstances, which assuming them to be true, would lead, in ordinary course, a person to the conclusion that the person was probably liable on foot of the claim.
The older formulation requires malice. This requires that the complainant lacked good faith, usually involving improper purpose and intention to give.
Damage
The claimant must prove loss and damage. The damage may be actual or presumed damage. There may be damage to reputation, physical security and expenses incurred in dealing with the charge.
The mere fact that litigation causes inconvenience and cost to the other party is not in itself sufficient to constitute malicious abuse.
In some cases, the impugned actions are such that the law presumes that they cause the claimant damage.