Simon's Megalomaniacal Legal Resources

Abuse of Process - Understanding

As far as I can tell 'abuse of process' started out as a means of expanding the court's power where it found the elements of issue estoppel lacking when issues recurred before it but between different parties than before (issue estoppel only operates between the same disputing parties). But since then it has blossomed into a range of forms, now applying for example to the exercise of a statutory automatic stay (under RTA law) or to the failure to immediately advise opponents when part of multi-party litigation was settled (the Handley Estate line of cases).

Abuse of process is an ill-defined 'doctrine' that has grown, perhaps exponentially, recently. Honestly, I hesitate to consider it a doctrine as that term implies a conceptual consistency that allows for functional definition. The true role of abuse of process is sociological, even political.

Abuse of process is obviously a means for the courts, frustrated by a sense of overwork and the poor quality of the efforts of unrepresented parties (and also represented parties that don't move cases along quickly enough for the court's taste), to stay what they view as hopeless proceedings and thus clear their dockets.

Likely the best evidence of the functional role of 'abuse of process' is found in R2.1 of the Rules of Civil Procedure (RCP), where it is ranked equally with the (equally fuzzy and pejorative) doctrines of 'frivolous' and 'vexatious'. And while abuse of process may be advanced by a party [SPPA 23(1); CJA 140(5) and the common law], when coupled with the authority of the court to "on its own initiative, stay or dismiss a proceeding" [RCP 2.1.01], this deck-clearing function becomes undeniable.

Of the constituent terms: 'abuse' and 'process', the latter is plain enough to conclude that it's not a substantive concept. Therefore it's essence lies in the term 'abuse', a word that we use in such contexts as qualifying people for social housing eligibility on the basis of their physical and sexual victimhood [Reg 367/11, Housing Service Act, 2011]:

1. (1) In this Regulation,

“abuse” means, with respect to a member of a household,
(a) any of the following done against the member by any individual described in subsection (2),
(i) one or more incidents of,
(A) physical or sexual violence,
(B) controlling behaviour, or
(C) intentional destruction of or intentional injury to property, or
(ii) words, actions or gestures that threaten the member or lead the member to fear for his or her safety; or
(b) trafficking of the member done by any individual;

This usage leaves no doubt of the highly judgemental content that the term "abuse" has generally, and we should not shy from recognizing that social severity here.

'Abuse' is something that is to be universally condemned in every social context that it occurs in - here the courts, elsewise the conventional and objective legal terms of "no genuine issue requiring a trial" [RCP 20.04(2)] or "no reasonable cause of action or defence" [RCP 21.01(1)] would suffice.

Noteworthy is that abuse of process has been located as a category of breach of procedural fairness in the administrative context.