Abuse of Process
Both of them were seriously injured, and relied on their insurance policy, which had uninsured motorist coverage, to pick up the tab for their medical bills. Almost immediately after the Durhams advised their insurance company, Allstate, that they would be making a claim under that policy, a disagreement began about how much that policy would actually pay.
The issue was assigned to arbitration.
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The malicious subpoenas were, in fact, issued in violation of a protective order that had been issued by the arbitrators. The Durhams claimed that Allstate, through its legal representative, delved into their personal lives for the purpose of destroying their reputations, and to cause them to lose their jobs. The defendants argued that an abuse of process claim could not be made on a case that had not entered the court system.
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In this case, arbitration is a formal method of dispute resolution, which is heard by private arbitrators, not a judge. The New Mexico Supreme Court agreed to hear their case, on only the point of whether their claim that Guest had issued a subpoena for an illegitimate purpose was enough to claim malicious abuse of process.
The Supreme Court found that arbitration is indeed a judicial proceeding in such a matter, and restated the requirements to prove malicious abuse of process:. This site uses Akismet to reduce spam. Learn how your comment data is processed. Are you a lawyer? Please indicate if you are a lawyer.
Abuse of process - Wikipedia
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Part of the common law series.
Abuse of Process
Assault Battery False imprisonment Intentional infliction of emotional distress Transferred intent. Trespass land chattels Conversion Detinue Replevin Trover. Assumption of risk Comparative negligence Contributory negligence Consent Necessity Statute of limitations Self-defense Defense of others Defense of property Shopkeeper's privilege.
Product liability Quasi-tort Ultrahazardous activity. Public nuisance Rylands v Fletcher. Defamation Invasion of privacy False light Breach of confidence Abuse of process Malicious prosecution Alienation of affections Criminal conversation Seduction Breach of promise. Fraud Tortious interference Conspiracy Restraint of trade.
Last clear chance Eggshell skull Vicarious liability Volenti non fit injuria Ex turpi causa non oritur actio Neutral reportage Damages Injunction Conflict of tort laws Joint and several liability Comparative responsibility Market share liability. See Abuse of process. There is no defence of entrapment in English law but it is considered to be an abuse of the process of the court for state agents to lure a person into committing illegal acts and then seek to prosecute him for doing so. State-created crime is unacceptable and improper, and to prosecute in such circumstances would be an affront to the public conscience.
This is distinct from the situation in which an accused is given the opportunity to commit the crime that was their existing intent. Where an accused can show entrapment, the court may stay the proceedings as an abuse of the court's process or exclude evidence.
Where the action of the state threatens the rule of law it would be unfair to try the defendant. As a matter of policy, when a defendant has been treated so unfairly then the integrity of the criminal justice system depends on the defendant not being tried at all. While the common law as it has developed provides some protection from entrapment by the state, this does not extend to the situation where a defendant is entrapped by a private individual. For the behaviour of a private individual to give foundation to an application to stay proceedings, his actions must amount to such gross misconduct that it would be an abuse of the court's process to rely on the evidence.
The burden of proof is on the applicant, on the balance of probabilities.
Abuse of Process
Where an abuse argument is anticipated it must be included in the defence case statement, which is to be served within 28 days of disclosure of unused material from the prosecution as required by CrimPR, Pt See Defence witness notice regulations and defence case statements. Applications to stay or dismiss for abuse of process were common in serious fraud cases, which took a long time to investigate and to bring to court.
These applications were commonly based on delay and the health of defendants.