Key requirements to establish a res judicata
Produced in partnership with Jack Mitchell of Old Square Chambers
Key requirements to establish a res judicata

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:

  • Key requirements to establish a res judicata
  • The elements of establishing a res judicata
  • Res judicata—what is a 'judicial decision'?
  • Res judicata—decision was in fact pronounced
  • Res judicata—tribunal had jurisdiction
  • Res judicata—decision was final
  • Res judicata—decision on the merits
  • Res judicata—who is a privy?

The elements of establishing a res judicata

In order to set up a res judicata, you must establish that:

  1. the decision on which your res judicata is based, whether domestic or foreign, was judicial in the relevant sense

  2. it was in fact pronounced

  3. the tribunal had jurisdiction over the parties and the subject matter

  4. the decision was:

    1. final

    2. on the merits

  5. it determined a question raised in the later litigation, and

  6. the parties are the same or their privies, or the earlier decision was in rem (Marginson v Blackburn and Leong v Hock Hua Bank Bhd [2008] 3 MLJ 340 and Chong v Leow [2008] 6 MLJ 781 (neither available in Lexis®Library))

Res judicata—what is a 'judicial decision'?

For this purpose, the decision must be given by a tribunal exercising judicial functions under the law of England or, in the case of a foreign tribunal, the law of the foreign state.

Thus decisions made by the following are 'judicial' in this sense:

  1. the Privy Council of the UK

  2. the Supreme Court, the Court of Appeal and all courts within all divisions of the High Court of England and Wales

  3. the County Court

  4. domestic and statutory tribunals, eg the Competition Appeals Tribunal, the Property First-Tier Tribunal, the General Medical Council. This also includes any arbitrator, or other person or body

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