Cause of action estoppel
Produced in partnership with Jack Mitchell of Old Square Chambers
Cause of action estoppel

The following Dispute Resolution guidance note Produced in partnership with Jack Mitchell of Old Square Chambers provides comprehensive and up to date legal information covering:

  • Cause of action estoppel
  • What is cause of action estoppel?
  • Cause of action estoppel—identity of causes of action required
  • Cause of action estoppel—what materials can the court take into account?

Cause of action estoppel is a sub-species of the res judicata doctrine (see Practice Note: The doctrine of res judicata). In addition to the general key requirements for establishing a res judicata (see Practice Note: Key requirements to establish a res judicata) this Practice Note considers the specific requirements when seeking to establish a cause of action estoppel.

For guidance on issue estoppel see Practice Note: Issue estoppel.

What is cause of action estoppel?

Cause of action estoppel arises where:

  1. the same parties, or their privies

  2. involved in the same subject matter

bring a cause of action in a second action that is identical to a cause of action the first action (Arnold v National Westminster).

Per Diplock LJ in Thoday v Thoday:

‘… cause of action estoppel … prevents a party from asserting or denying as against the other party, the existence of a particular cause of action, the existence or non–existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties...’

Sir Terence Etherton MR in R (Gray) v Police Appeals Tribunal summarised that:

‘… the constituent elements of cause of action estoppel [are] the following six matters specified by Lord Clarke JSC in [R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales para 34, endorsing para 1.02 of Spencer Bower & Handley, Res Judicata , 4th

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