Published in the New Hampshire Business
Review
Virtually every party named in a lawsuit is unhappy about that
fact. In the vast majority of cases, however, the party instituting
the lawsuit has legitimate, if arguable, reasons for having done
so.
Sometimes, however, a defendant's outrage at being sued is
warranted – where, for instance, the party initiating the
lawsuit has done so for improper purpose. In those limited
instances, the party sued may be able to seek recourse against
their opponent such that the hunter becomes the hunted.
An improper purpose justifying a responsive lawsuit can include the
use of the court system to extract an unwarranted concession from
his opponent, or a lawsuit filed just to "get
even."
Such a misuse of the court or administrative process can support a
claim for recovery of the damage incurred as a consequence of
having to defend against the wrongful litigation. Damages resulting
from the misuse of legal process can include the attorneys'
fees and costs incurred in the defense of the action along with any
losses tied to the litigation misconduct, such as the lost profits
or increased costs.
There are two general types of claims where the civil legal process
has been misused: those falling under the heading "malicious
prosecution" and those labeled an "abuse of
process." The claims have similar elements and, in many
instances of litigation abuse, both can be raised.
In order to prevail on a civil malicious prosecution claim, the
plaintiff must prove that he was subjected to criminal or civil
proceeding instituted (or provoked) by the defendant without
probable cause; with malice; and that the proceedings terminated in
the plaintiff's favor.
For someone to have probable cause to initiate judicial
proceedings, he or she must have facts in mind that would cause a
person honestly to believe that they had a legitimate
complaint.
One claiming malicious prosecution must therefore prove that anyone
they accuse of malicious prosecution did not really think they had
a viable cause of action at the time they commenced the action.
Given that public policy supports resolving disputes in court,
claims that rise to the level of malicious prosecution must truly
be outrageous cases that any reasonable person would not have
initiated.
A party claiming abuse of process must prove a person used the
legal process against the party primarily to accomplish a purpose
for which it is not designed and caused harm to the party by the
abuse of process.
Here, the targeted misconduct is not the wrongful procurement of
legal process or the wrongful initiation of criminal or civil
proceedings. Instead, it is the subsequent misuse of the process
that can give rise to a claim for damages.
In other words, one can initiate a lawsuit with a plausible basis,
but if they did so just to delay, or to be able to "beat
up" or embarrass the defendant in the discovery of the case,
that may constitute abuse of process.
There is often overlap between the two causes of action for misuse
of judicial proceedings. Take, for example, a supermarket chain
that appeals a local zoning board's approval of a
competitor's variance to locate in its new store on the other
side of town.
The supermarket filing the appeal has no real interest in issue on
appeal, but instead seeks only to delay the competitor's start
of construction and increase the costs of the same. If the case
terminates before a decision on the merits, the proposed
supermarket may have a case for abuse of process, based on the
filing and continuation of an appeal for improper purpose. If the
appeal runs its course, the proposed market, if it prevails, may
also have a claim for malicious prosecution.
Both causes of action would allow for recovery of the costs of
defending the appeal, any extra costs of construction caused by the
unwarranted delay and any loss of profits for the period the
supermarket should have been in operation, but was not.
It's not difficult to bring a lawsuit or intervene in an
administrative action. If, however, someone has harnessed the
sometimes punishing elements of the judicial system just to do
harm, or to manipulate the expense and delay inherent in the system
just to leverage concessions or payments that are not the
legitimate outcome of the action, the individual bringing the
action may be held to account.
Scott Harris, a director in the Litigation Department of
McLane, Graf, Raulerson and Middleton.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.