Judgment in personam definition

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Res judicata and foreign judgments

This Practice Note considers res judicata and provides an introduction as to whether it can be raised in respect of a foreign judgment. It is necessary to determine whether the foreign judgment will be recognised and whether it is res judicata. The Practice Note considers specific issues regarding foreign judgments and the doctrine of merger in judgment, issue estoppel and abuse of process as well as defences to a res judicata in respect of a foreign judgment and res judicata in respect of foreign arbitral awards.This Practice Note assumes a general understanding of the common law doctrine of res judicata. For guidance, see Practice Note The doctrine of res judicata.Relevance of res judicata for foreign judgmentsThe relevance of res judicata is that the foreign judgment operates as a defence to proceedings in the courts of England and Wales. Where a foreign court has delivered a judgment in a civil or commercial matter, a defendant to proceedings in the courts of England and Wales may rely on two forms of estoppel:•cause of action estoppel—the claimant is prevented from pursuing the same claim as that determined by the foreign judgment. For guidance on the general principles, see Practice Note: Cause of action estoppel•issue estoppel—the cause of action is different from that determined by the foreign judgment but the claimant is prevented

Comity and the court's inherent jurisdiction—application and effects

Comity and the court's inherent jurisdiction—application and effects Comity Comity is the general common law principle that courts will recognise and enforce foreign proceedings, provided that they are not: • contrary to public policy • contravening fundamental standards of procedural fairness • based on fraud/unfairness • giving effect to foreign penal laws (eg the US Securities Exchange Act 1934 had civil and criminal sanctions and its purpose was to prevent and punish specific acts and omissions) (Schemmer v Property Resources) In practice, it will only be used as a last resort in England where the following do not apply to assist a foreign office-holder making an inbound request for help from English courts: • Regulation (EU) 2015/848 (OJ L141 5.6.2015 p 19), Recast Regulation on Insolvency [EU Recast Regulation on Insolvency]. For example, if the foreign insolvency/restructuring proceedings were commenced after 11pm on 31 December 2020 (see Practice Note: Brexit—impact on Recast Regulation on Insolvency) • the UNCITRAL Model Law as implemented by the Cross-Border Insolvency Regulations 2006 (CBIR 2006), SI 2006/1030 (see Practice Note: When does UNCITRAL (implemented by the Cross-Border Insolvency Regulations) apply and what are the effects?). For example, if the office-holder is not a foreign representative (eg a receiver) or the debtor’s centre of main interests (COMI) or establishment is not in the right place (see Kireeva (as bankruptcy trustee of Georgy Ivanovich Bedzhamov) v Bedzhamov; Vneshprombank LLC v Bedzhamov

The doctrine of res judicata

The doctrine of res judicata What is a res judicata? A res judicata is a decision given by a judge or tribunal with jurisdiction over the cause of action and the parties, which disposes, with finality, of a matter decided so that it cannot be re-litigated by those bound by the judgment, except on appeal. Final judgments by default or consent are included within this definition, but not decisions on procedural grounds and decisions which are not final in any sense. The purpose of the doctrine is to provide finality to litigation and to protect parties from being vexed by the same matter twice. A judgment: • in personam—binds the parties and their privies • in rem—binds anyone, privy or otherwise (ie it is a judgment which binds 'the whole world') A party may wish to set up a res judicata: • as an estoppel against their opponent’s claim or defence; and/or • as the foundation of their own claim or defence For guidance on the key requirements for establishing a res judicata, see Practice Note: Key requirements to establish a res judicata. Res Judicata—Lord Sumption’s six general principles (Virgin Atlantic) In Virgin Atlantic, Lord Sumption identified six general principles that fall within the doctrine of res judicata, they are: • cause of action estoppel—this precludes a party from bringing a cause of action in a second case that involves the same subject matter and is identical to a

Res judicata and foreign judgments

Res judicata and foreign judgments This Practice Note considers res judicata and provides an introduction as to whether it can be raised in respect of a foreign judgment. It is necessary to determine whether the foreign judgment will be recognised and whether it is res judicata. The Practice Note considers specific issues regarding foreign judgments and the doctrine of merger in judgment, issue estoppel and abuse of process as well as defences to a res judicata in respect of a foreign judgment and res judicata in respect of foreign arbitral awards. This Practice Note assumes a general understanding of the common law doctrine of res judicata. For guidance, see Practice Note The doctrine of res judicata. Relevance of res judicata for foreign judgments The relevance of res judicata is that the foreign judgment operates as a defence to proceedings in the courts of England and Wales. Where a foreign court has delivered a judgment in a civil or commercial matter, a defendant to proceedings in the courts of England and Wales may rely on two forms of estoppel: • cause of action estoppel—the claimant is prevented from pursuing the same claim as that determined by the foreign judgment. For guidance on the general principles, see Practice Note: Cause of action estoppel • issue estoppel—the cause of action is different from that determined by the foreign judgment but the claimant is prevented

Enforcing foreign judgments—common law principles

Enforcing foreign judgments—common law principles This Practice Note considers the recognition and enforcement of foreign judgments applying common law. It explains the requirement for new enforcement proceedings in England and Wales with the foreign judgment as the cause of action. The Practice Note sets out the conditions need to be met and the common defences that may be raised in relation to a claim to recognise and enforce a foreign judgment. The Practice Note also considers the issue of whether security for costs is available and whether the court should grant a stay pending further court hearings in the foreign court. It is important to check whether a different enforcement regime applies in preference to the common law. For guidance, see: Which regime applies to enforce a foreign judgment?—checklist. When is the common law used? When seeking to enforce a foreign court judgment in England and Wales, it is first necessary to identify which regime applies. There are a number of different statutory regimes which apply variously to specified countries. However, where a judgment creditor wants to enforce a judgment from a country not falling within any of the statutory regimes it is necessary to rely on the common law. Examples of foreign court judgments that need to be enforced by the application of the common law include judgments from China, Hong Kong, Japan, Mexico, Russia, South Africa, the US

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1164. Interim injunctions.

1164.     Interim injunctions. In exercising its jurisdiction by way of interim injunction1, the court acts upon the principle of preventing irreparable injury2. In a strong case, where serious injury is likely to arise from the act complained of, the court will interfere by injunction before the hearing; but if otherwise, the question becomes one of comparative injury, and the court will consider whether injury will be done by granting or withholding the injunction3.