Malicious Abuse of Legal Process
Chapter Fifty-Two
Syllabus topic 2.5, "Joint Tort-Feasors, Nervous Shock and Malicious abuse of Legal Process."
Pages 211 to 214 of 434
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.
Malicious Abuse of Legal Process
Malicious abuse of process. Here the process was regularly issued and the complaint is about the use made of it. The classic example is obtaining a summons or a warrant, valid in itself, in order to extort money, to force a person to give up property, or to compel him to do something the process was never meant to compel.
The elements of abuse of process
1. Legal process was used. A summons, a warrant, an attachment, an injunction, an arrest.
2. It was used for a purpose other than that for which it is designed. This is the heart of the wrong.
3. Malice, that is, an improper motive.
4. Damage.
Note what is NOT required: that the process was wrongly obtained, and that the proceedings ended in the plaintiff's favour. Both are required in malicious prosecution and neither in abuse of process, because the process here may have been perfectly regular.
The statutory remedy that often replaces the tort
Section 95 of the Code of Civil Procedure 1908 provides for compensation where an arrest, attachment or temporary injunction was obtained on insufficient grounds, or where a suit fails and there was no reasonable or probable ground for instituting it, and it allows the court to award compensation up to the limit the section sets, on the application of the defendant, in the same suit. That is faster and cheaper than a separate action, and a student should mention it.
Limitation for the related torts is short: article 79 of the Schedule to the Limitation Act 1963 gives one year for compensation for an illegal, irregular or excessive distress; article 80 gives one year for the wrongful seizure of movable property under legal process; and article 90 gives three years for compensation for injury caused by an injunction wrongfully obtained, running from when the injunction ceases.
A worked example
Vinod owes Waseem nothing, but Waseem obtains an attachment before judgment over Vinod's shop stock, in a suit filed for that purpose, and tells Vinod he will lift it if Vinod sells him a piece of land cheaply.
Was the process regular? Assume the court's order was properly obtained on the material placed before it.
What is the wrong? The use of a regular process to achieve a purpose it was never meant to achieve, namely to force a sale of land. That is a malicious abuse of legal process on the Supreme Court's definition in West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568.
Malicious Abuse of Legal Process
Is malicious prosecution available? No: no criminal law was set in motion.
Is a malicious civil proceeding claim available? Possibly, if the suit itself was brought without reasonable and probable cause and the attachment damaged Vinod's credit.
And the quicker route? An application under section 95 of the Code of Civil Procedure 1908 in the same suit, for compensation for an attachment obtained on insufficient grounds.
Distinctions that carry marks
| Malicious prosecution | Abuse of process | |
|---|---|---|
| What is complained of | Setting the process in motion without cause | The purpose for which a regular process is used |
| Must the process have been wrongly obtained? | Yes, without reasonable and probable cause | No |
| Must the proceedings have ended in the plaintiff's favour? | Yes | No |
| Malice | Essential | Essential |
| Damage | Essential | Essential |
What it does NOT mean
It does not require the process to be invalid. A perfectly regular process may be abused.
It does not require a favourable termination. The wrong is complete when the process is perverted.
It does not make every unsuccessful suit actionable. Ordinary civil proceedings give rise to costs, not damages.
It is not the only remedy. Section 95 of the Code of Civil Procedure 1908 provides a summary one.
Quick revision
- Abuse of process: the malicious misuse or misapplication of a regularly issued process to accomplish a purpose not warranted by the order of the court.
- West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, states the definition and the distinction between a malicious use and a malicious abuse of process.
- Elements: process used, for an improper purpose, maliciously, causing damage.
- Neither wrongful issue of the process nor a favourable termination is required.
- Malicious civil proceedings are actionable where the proceeding damages by its mere existence: bankruptcy or winding-up petitions, unfounded claims to property, malicious arrest and attachment.
- Section 95 of the Code of Civil Procedure 1908 gives compensation in the same suit for an arrest, attachment or injunction obtained on insufficient grounds.
- Limitation: articles 79 and 80 give one year, and article 90 gives three years from when a wrongfully obtained injunction ceases.
Test yourself
1. What is a malicious abuse of legal process, and how does it differ from malicious prosecution? It 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; that is the definition given by the Supreme Court in West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, which also draws the distinction between a malicious use and a malicious abuse of process. The differences from malicious prosecution are two. In malicious prosecution the complaint is that the process was set in motion without reasonable and probable cause, so its wrongful institution must be proved; in abuse of process the process may have been perfectly regular and the wrong lies in the purpose for which it is used. And malicious prosecution requires that the proceedings ended in the plaintiff's favour, while abuse of process does not, because the wrong is complete when the process is perverted.
Malicious Abuse of Legal Process
2. Are malicious civil proceedings actionable? As a general rule, no. A person may use any form of legal process without liability beyond a liability for costs if he fails, because the ordinary civil suit is not treated as damaging in itself and the courts do not want litigation about litigation. An action does lie where a particular kind of proceeding is instituted maliciously and without reasonable and probable cause and causes damage, and the recognised examples are a bankruptcy or winding-up petition, an unfounded claim to property, and a malicious arrest or attachment before judgment; the reason is that such proceedings damage a person's credit or the enjoyment of his property by their mere existence. In India, section 95 of the Code of Civil Procedure 1908 supplies a quicker remedy, allowing the court in the same suit to award compensation where an arrest, attachment or temporary injunction was obtained on insufficient grounds.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.