Dear Jason; As far as I can tell, reading the judgment and the passage in Fleming 9th ed, the court is not saying that Fleming got it wrong- at any rate, Fleming does not really address this question of whether the tort action for abuse of process can be brought by someone other than a party to the allegedly abusive litigation. (The closest he comes is where he says that "an action on the case will lie at the suit of the injured party" but does not say that this party has to be a party to the previous litigation.) The court simply points out that this issue had not been a live issue in a previous case where Fleming's other criteria were adopted. In Australia the HCA has said we should call the tort action "collateral abuse of process"- Willams v Spautz (1992) 174 CLR 509 (a case involving events at my University though well before I arrived, I hasten to add), to make it clear that the tort action is different to the remedy of terminating proceedings which are currently on foot. While it seems to me that GSK were arguably engaged in doing something wrong and reprehensible in a general sense, it does seem that this was a course that the law allowed them to take, and since the obtaining of a commercial profit was clearly their predominant motive, it would seem to be right that there was no success on "lawful means conspiracy". (Indeed, it looks to me doubtful as to whether there was more than one party involved anyway, which I would have thought was necessary for conspiracy. But I see from footnote 1 that the actions were taken by a group of affiliated companies and that GSK conceded this element.)  At the moment my feeling is that a claim by X that a case brought by A against B has harmed their interests should probably be dealt with as a claim for "causing loss by unlawful means" (OBG v Allan etc); this would of course then involve showing that A's action was "unlawful", but I think that would include a case where X can demonstrate that A's action was an actionable "collateral abuse of process". Here, though, even if the class action had relied on OBG, I think the claimants would have had the same problem showing that GSK were doing anything unlawful. Regards Neil On 11/11/2011, at 7:11 AM, Jason Neyers wrote: Dear Colleagues:   Those of you interested in abuse of process, conspiracy or waiver of tort, might be interested in the decision of the Ontario Court of Appeal in Harris v. Glaxosmithkline Inc., 2010 ONCA 872 (http://www.ontariocourts.on.ca/decisions/2010/december/2010ONCA0872.htm). The allegation of the class plaintiff was that GSK had opportunistically launched baseless NOC proceedings against generic drug manufacturers to take advantage of the mandatory stay provisions of the federal legislation. These provisions in effect extended the life of GSK’s patents on one of its drugs (Paxil) by four years and allowed it (so the plaintiff claimed) to charge consumers “supra-competitive” prices that we significantly higher than those that would have been charged by generic drug manufacturers.   The Court found that the tort of abuse of process was not made out since the plaintiff was not a party to the legal process initiated by GSK (the generic drug manufacturers were) and this was a requirement of the tort (despite claims made by Fleming to the contrary).  The court found that conspiracy to injure was not made out since GSK had not acted with the predominant purpose of injuring consumers but rather with the motive of commercial profit.  Finally, the court found that there could be no waiver of tort claim since “waiver of tort requires some form of [predicate] wrongdoing” (at [58]).   I, for one, have doubts as to the requirement of mutuality insisted upon by the Court in relation to abuse of process but would, as always, be interested in the views of others.   Cheers, -- Jason Neyers Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435  Neil Foster Senior Lecturer Newcastle Law School Faculty of Business & Law MC158, McMullin Building University of Newcastle Callaghan NSW 2308 AUSTRALIA  ph 02 4921 7430 fax 02 4921 6931 http://www.newcastle.edu.au/staff/profile/neil.foster.html http://works.bepress.com/neil_foster/