Grainger v Hill: CEC 1838

Misuse of Power for ulterior object

D1 and D2 lent C 80 pounds repayable in 1837, secured by a mortgage on C’s vessel. C was to be free to continue to use the vessel in the interim but the law forbade its use if he were to cease to hold its register. In 1836 the Ds became concerned about the strength of their security. They resolved to put pressure on C to make early repayment. In an action for assumpsit they falsely claimed that the loan was already repayable. They swore an affidavit of debt, which entitled them, without judicial authority, to cause to be sued out of court a writ of capias ad respondendum directed at C. This obliged the local sheriff to capture C with a view to his being brought before the court and made to respond. The sheriff indicated to C that the Ds would be content for him not to be arrested if he were to surrender the vessel’s register. He did so. He soon repaid the loan but in the interim the absence of the register had required his vessel to forego four voyages to Caen. The plaintiff had used the threat of arrest of the defendants in proceedings for recovery of a debt to achieve the ulterior purpose of obtaining possession of a certain ship’s register.
Held: The court upheld the judgment for C in his action on the case. The judges, led by Tindal CJ, held that the tort committed by the Ds was not malicious prosecution but abuse of the process of the law to effect an object not within the scope of the process which they had initiated, namely to ‘extort’ the register, to which they had no right, from C or to obtain it from him by ‘duress’. To allow a defendant to order a plaintiff’s otherwise lawful claim to be stayed as an abuse of process, he has to show that the plaintiff has an ulterior motive, that he seeks a collateral advantage for himself beyond what the law offers, and is reaching out ‘to effect an object not within the scope of the process’. There is a tort of abuse of process for which it is not necessary to prove malice or want of reasonable and probable cause or that the proceedings have been terminated, let alone in favour of the plaintiff.
It was enough for the sheriff’s officer to tell the claimant, while he was lying ill in bed, that there was a writ of capias against him and unless he surrendered his ship’s register or found bail, he would be taken away or a man would be left with him: this was a sufficient restraint of his person to amount to an arrest.


Tindall CJ, Park J


(1838) 4 Bing (NC) 212, [1838] EngR 365, (1838) 4 Bing NC 212, (1838) 132 ER 769




England and Wales

Cited by:

CitedGoldsmith v Sperrings Ltd CA 1977
Claims for Collateral Purpose treated as abuse
The plaintiff commenced proceedings for damages for libel and an injunction against the publishers, the editors and the main distributors of Private Eye. In addition, he issued writs against a large number of other wholesale and retail distributors . .
CitedPitman Training Ltd and Another v Nominet UK and Another ChD 22-May-1997
The defendant had received a request to register the domain name ‘’ from the claimants, who held the trade mark. The domain was not activated, and was de-registered by the defendants and then re-registered by another company. Action was . .
CitedLand Securities Plc and Others v Fladgate Fielder (A Firm) ChD 25-Mar-2009
The claimants sought damages, alleging that the defendants had abused the litigation process by issuing proceedings to challenge a grant of planning permission to the claimants not so as to defeat the grant, but by causing the claimants . .
CitedLand Securities Plc and Others v Fladgate Fielder (A Firm) CA 18-Dec-2009
The claimants wanted planning permission to redevelop land. The defendant firm of solicitors, their tenants, had challenged the planning permission. The claimants alleged that that opposition was a tortious abuse because its true purpose was to . .
CitedBroxton v McClelland CA 31-Jan-1995
The defendants issued various applications to strike out the claim, including a claim of abuse of process. The action was being financially maintained by a third party. The defendants contended that the maintainer’s purpose was to oppress and . .
CitedMakudi v Baron Triesman of Tottenham In London Borough of Haringey QBD 1-Feb-2013
The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the . .
CitedWilliamson v The Attorney General of Trinidad and Tobago PC 3-Sep-2014
(Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal . .
CitedJalloh, Regina (on the application of) v Secretary of State for the Home Department SC 12-Feb-2020
Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Litigation Practice

Leading Case

Updated: 05 June 2022; Ref: scu.186025