Malicious Abuse of Legal Process

In one line

Abuse of process is using a genuine legal process for a purpose it was never meant to serve, and it is a wrong even if the process was properly issued.

In the wording a student can write in an exam: a malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by the order of the court, that is, the malicious perversion of a regularly issued process whereby an improper result is secured; it is distinct from a malicious use of process, such as malicious prosecution or malicious civil proceedings, where the complaint is that the process was set in motion without cause, because in abuse the process may have been regularly obtained and the wrong lies in the purpose for which it is employed.

The Supreme Court's own distinction

Facts. West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, decided on 24 November 2006. An employee sued the Board for damages; the trial court refused damages for defamation but awarded them for harassment, and the High Court affirmed, treating that award as damages for malicious prosecution causing harassment. Malicious prosecution had not been pleaded, no issue was framed on it, and no evidence was led about it.

Held. The appeal was allowed and the decree set aside, because a tort must be pleaded, put in issue and proved, and conclusions resting on surmises cannot support a decree. In the course of the judgment the Court set out the vocabulary of the group: malicious prosecution requires proceedings instituted maliciously and without reasonable and probable cause; a malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by the order of the court, the malicious perversion of a regularly issued process whereby an improper result is secured; and there is a distinction between a malicious use and a malicious abuse of legal process, an abuse being where the party employs the process for some unlawful object, not the purpose for which it was intended.

Why it matters here. It is the Indian statement of the distinction the syllabus asks about, and it comes from the Supreme Court rather than from a textbook.

The three wrongs in this family

Malicious prosecution, which chapter [Malicious Prosecution] works out: setting the criminal law in motion maliciously and without reasonable and probable cause.

Malicious civil proceedings. In general a person may use any form of legal process without liability beyond the costs if he fails, because civil litigation is not ordinarily damaging in itself. An action lies, however, where a particular kind of civil proceeding is initiated maliciously and without reasonable and probable cause and causes damage: the standard examples are a bankruptcy or winding-up petition, an unfounded claim to property, and a malicious arrest or attachment before judgment. The reason for the exception is that these proceedings damage a person's credit or property by their mere existence.