Published in the New Hampshire Business Review
By: Scott H. Harris
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, can be reached at (603) 628-1459 or email@example.com.