Abuse of process is the cousin of malicious prosecution. Abuse of process is to civil actions what malicious prosecution is to criminal actions.
New Hampshire recognizes that there are occasions when a law suit can be maintained for wrongful use of civil proceedings, or abuse of process. Like malicious prosecution in a criminal
case, abuse of process involves using the legal process for an improper purpose. That is the common thread between the two.
But abuse of process and malicious prosecution are cousins – not twins. In an abuse of process case, a plaintiff – the person bringing the suit – must prove that they were sued by the
defendant. The plaintiff must show that the suit was resolved in the plaintiff’s favor.
Finally, the plaintiff must prove that the law suit was brought for an improper purpose – such as to harass.
So – there must be an ulterior purpose and there must be a wilful act in the use of civil process. The use of this process must not be proper in the regular course of conducting the court’s business. The ulterior purpose element usually takes the form of coercion.
This coercion is used to obtain an advantage of some sort. In such a situation, the use of civil process is used as
a threat or as a club to beat the opponent. It is similar to extortion.
When a case is made for abuse of process, damages can be recovered. A successful plaintiff can recover for the harm normally resulting from any dispossession or interference with
the advantageous use of land or personal property suffered during the course of the proceedings.
A plaintiff can also recover for harm to their reputation stemming from defamatory statements made during the proceeding. A plaintiff can recover the expenses incurred in defending
himself/herself against the abusive process.
A plaintiff can also recover for emotional distress.
Quite often, emotional distress is the greatest damage to be recovered.
None of us like to go to court.
Imagine what it would be like to be put in jeopardy of a
civil judgment when there is no truth to the allegation. Imagine what it would be like to have our property seized and/or attached for no other reason than the other party was lying.
When someone sues another person and the suit is based on a lie, this is an abuse. When the lie is perpetrated in order to gain an advantage of sort, it is particularly egregious.
This is not what our court system is supposed to be used for.
Lawyers don’t see a lot of these types of cases – but they do exist.
When you see them, they are unforgettable.