Abuse of the Legal Process & Malicious Prosecution Defined

Abuse of the Legal Process & Malicious Prosecution Defined
Both appear to be evident in the prosecution of M Bolton skipper of motoring yacht Classique whose peaceful passage in the Auckland Harbour was impinged upon by Rogue action instigated by M Pigneguy skipper of the Waiheke roll on/roll off ferry Seaway ll. Undue alacrity is seen in Maritime NZ’s process.
A : Abuse of process is a cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action.
It is a common law intentional tort. It is to be distinguished from malicious prosecution, another type of tort that involves misuse of the public right of access to the courts.
The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: (1) the existence of an ulterior purpose or motive underlying the use of process, and (2) some act in the use of the legal process not proper in the regular prosecution of the proceedings. Abuse of process can be distinguished from malicious prosecution, in that abuse of process typically does not require proof of malice, lack of probable cause in procuring issuance of the process, or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution. “Process,” as used in this context, includes not only the “service of process,” Typically, the person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution.
B : Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause
In some jurisdictions, the term “malicious prosecution” denotes the wrongful initiation of criminal proceedings, while the term “malicious use of process” denotes the wrongful initiation of civil proceedings.
Highlighted are the following –
(a) the existence of an ulterior purpose or motive underlying the use of process,
(b) the use of the legal process not proper in the prosecution of the proceedings
(c) the person who abuses process is interested only in accomplishing some improper purpose
(d) that offends justice, such as an unfounded criminal prosecution.
(e) intentionally (and maliciously) instituting and pursuing without probable cause
(f) wrongful initiation of criminal proceedings

Abuse of Legal Process & Malicious Prosecution of the wrong Skipper
2014-05-20_1954

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