Abuse of process is a common law tort that involves the misuse of legal process(es) for an ulterior purpose. Abuse of process is one of several actionable offenses aimed at discouraging bad-faith litigation attempts. Indeed, courts hold the authority to sanction parties for bringing frivolous action, and parties also have a right to action under the claim of malicious prosecution.
Generally, the elements for abuse of process are: (1) the use of an illegal or improper use of process; (2) an ulterior motive or improper purpose; and in some jurisdictions (3) harm to a litigant. For the purposes of abuse of process, an arbitration proceeding is a judicial proceeding. Abuse of process has been described as misusing a "criminal or civil process against another party for a purpose different than the proceeding's intended purposes" and thereby causing the party damages (e.g., arrest, seizure of property, or economic injury).
A classic case of abuse of process entails an attempt by a plaintiff to coerce the defendant to do some collateral thing which they could not be legally and regularly compelled to do. For example, in a case where a former employer sought to bring criminal charges to its employee to recover stolen money, while knowing that the employee was not responsible for the theft, the court held the employer liable for abuse of process for initiating criminal charges while knowing that the charges were unsupported by probable cause.
In regard to defenses to abuse of process, there is disagreement among jurisdictions on whether good-faith reliance on an attorney's advice in bringing action serves as a complete defense. Still, attorneys who bring the improper process can be held liable to the damaged party as well.
[Last updated in December of 2021 by the Wex Definitions Team]