Abuse of Process
Context
The law allows persons to bring an action, provided that they act in good faith. The threshold for bringing legal proceedings is relatively low. However, 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.
Bringing proceedings incorrectly will not of itself give the innocent party a right to damages. He may be entitled to the costs in the relevant proceedings. If however the bringing of proceedings are taken for the wrong motive or without bona fide belief, then the civil wrong of abuse of process may be constituted.
Similarly, in a criminal context, a person may be prosecuted notwithstanding that he is ultimately acquitted or indeed it is apparent that he is not guilty. Equally, in the same way, there are protections in the criminal process to seek to reduce the risk of persons being tried for serious offences where there is no reasonable ground. The Criminal Procedure Act allows for an application to the court to prevent a matter proceeding by way of a Circuit Court trial where there is no case to answer.
There are substantial privileges for persons who make criminal complaints. Where however a criminal prosecution is initiated maliciously without reasonable and probable cause, the person who instituted the proceedings may be liable to the plaintiff who has suffered damage.
Abuse of Process Tort
It is a tort / civil wrong to use the legal process in bad faith. There are separate civil wrongs of malicious prosecution and abuse of civil process.
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.
Malicious prosecution involves the commencement of criminal proceedings, maliciously and without reasonable and probable cause, thereby causing damage. The defendant must have instituted the proceedings. He need necessarily be the prosecutor, this would rarely be the case. It is sufficient that he asserts the case to the authorities and indicates a willingness to assist the prosecution.
If a person asserts that he suspects that an offence has taken place and a person is thereby arrested, this may be sufficient. It may not be enough, however, if he simply gives an account of events to the police.
It is essential that the prosecution fails. A conviction includes a claim for the civil wrong. Proceedings which have started or have not completed by reason of being withdrawn, acquittal or question an appeal.
It is not possible to sue if the prosecution is successful. This would be a collateral attack on the criminal justice system, as it would involve a criminal verdict or conviction being challenged in subsequent civil proceedings, with a lower burden of proof.
Intent and State of Mind
The plaintiff must show that the defendant had a lack of reasonable and probable cause for initiating the prosecution. Reasonable and probable cause is an honest belief in the guilt of the accused, with a basis on reasonable grounds and circumstances, which assuming them to be true, would lead an ordinary cautious person in the position of the complainant, to the conclusion that the defendant was probably guilty of the crime concerned.
The defendant’s belief must be both honest and have reasonable cause. The presence of reasonable cause or honest belief by itself is not sufficient. The person instituting a prosecution on a belief honestly held, but not based on any examination or reasonable review of the facts or consideration of the circumstances, may be liable.
Traditionally, it was said that the plaintiff must be proved to act maliciously. In the modern context, this refers to an absence of good faith. This implies that the prosecution has been initiated some extraneous inappropriate purpose or motive.
Loss and Liability
The claimant must show damage and loss. The damage may be to the person’s reputation, his safety or to his financial interests. It must arise from the charge and prosecution. If the prosecution is in respect of a matter which is potentially defamatory or scandalous, a loss will be easily shown. Most serious offences will readily meet this requirement.
Strict liability offences and less serious offences may not of themselves be sufficient to show a loss to reputation. In this case, another basis of loss must be shown.
There is an equivalent tort in respect of malicious abuse of the civil process. Generally, the unsuccessful party to civil litigation is effectively penalised by the obligation to pay the defendant’s cost.
A claim for damages at common law will lie for the institution or maintenance of civil action if it is shown that done without reasonable and probable cause, maliciously and that the plaintiff has suffered actual damage. In some cases, the impugned actions are such that law presumes that the cause the claimant damage. As in the context of malicious prosecution, malice implies an improper motive.
Nature of Proceedings I
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.
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 is unlikely to constitute an abuse of process.
The case must fail entirely or be bound to fail. It may be withdrawn. The mere factor wherever that litigation causes inconvenience and cost to the other party is not in itself sufficient to constitute malicious abuse.
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.
Nature of Proceedings II
The institution of proceedings does not imply that the defendant must have prosecuted them. Indeed, they will generally be prosecuted by a public authority. However, the defendant must have been instrumental in the initiation of the prosecution. If he makes the complaint, initiates the matter and assists in the prosecution.
The proceedings must have succeeded. They need not have concluded. The plaintiff need not have been acquitted nor need the proceedings have even concluded. There must be that the person must have been convicted on foot of them.
The proceedings may be withdrawn, discontinued or overturned on an appeal. A conviction precludes liability. This has been criticised as anomalous, but the fact of conviction is generally good evidence that there was reasonable and probable cause. It is argued to be anomalous that a person might be prosecuted and convicted maliciously and the courts may review the position in future.
Elements of Tort
It must be shown that there was a lack of reasonable and probable cause to institute the proceedings. Reasonable and probable cause is an honest belief in the guilt of the accused, 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 guilty of the crime concerned. The matter is viewed from the perspective of a reasonable man in the circumstances rather than a lawyer.
It must be shown that the defendant acted maliciously. This requires that the complainant malice implies the absence of good faith usually involving improper purpose and intention to give.
The claimant must prove loss and damage. There may be damage to reputation, physical security and expenses incurred in dealing with the charge.
Civil Proceedings
Abuse of civil process civil equivalent. A claim the exists for commencement of civil proceedings, commenced and maintained without reasonable and probable cause, maliciously where the claimant has suffered actual damage or presumed damage.The claimant must show that he has suffered damages.
As with malicious prosecution, malice implies an improper or wrongful purpose or motive, misuse of the legal process for another extraneous reason.
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 the malice.
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. 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.
There is no remedy for perjury alone. Witnesses are generally immune from what they say in proceedings. They may of course be liable for perjury, which is criminal offence.