Res judicata and Henderson abuse
Produced in partnership with Jack Mitchell of Old Square Chambers
Res judicata and Henderson abuse

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

  • Res judicata and Henderson abuse
  • What is res judicata?
  • What is Henderson abuse?
  • Henderson abuse—scope of the principle
  • General considerations
  • Application of Henderson abuse within the same proceedings
  • Timing of claimant’s knowledge
  • Where the prior proceedings were an arbitration
  • Where the second claim is between different parties
  • Where the related proceedings are in different jurisdictions
  • More...

There is a degree of overlap between the doctrine of res judicata and the principle of Henderson abuse, as considered below.

Note also that these two concepts also overlap with the procedural basis for striking out a claim as an abuse of the court’s process under CPR 3.4(2)(b), see below and Practice Note: Strike out for abuse of process (civil) (CPR 3.4(2)(b))—second proceedings, collateral attack—Johnson v Gore Wood and beyond.

What is 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.

For further guidance on the purpose of and when you can establish a res judicata, see Practice Notes:

  1. The doctrine of res judicata

  2. Key requirements to establish a res judicata

What is Henderson abuse?

In a legal context abuse of process occurs where the court’s process is used for a purpose or in a way that is significantly different from its ordinary and proper use (Att General v Barker).

Res judicata and Henderson abuse, while distinct concepts (see below are often considered together in applications to strike out made under CPR 3.4(2)(b), on which, see Practice Note: Strike out for abuse of process (civil) (CPR 3.4(2)(b)).

Henderson v Henderson established the principle that

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