The doctrine of merger in judgment
Produced in partnership with Jack Mitchell of Old Square Chambers

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:

  • The doctrine of merger in judgment
  • What is merger in judgment and its relationship with res judicata?
  • Res judicata or merger of judgment—which applies to your given scenario?
  • Merger in judgment—the doctrine of former recovery
  • The elements for establishing former recovery as a defence to a claim
  • Establishing a defence of former recovery—the former judgment can, in law, support the plea
  • Establishing a defence of former recovery—the former judgment was in the terms alleged
  • Establishing a defence of former recovery—the tribunal giving the former judgment had jurisdiction
  • Establishing a defence of former recovery—the former judgment was final and remains in force
  • Establishing a defence of former recovery—the claimant is suing on the same cause of action
  • More...

The doctrine of merger in judgment

What is merger in judgment and its relationship with 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, see Practice Note: The doctrine of res judicata.

Merger in judgment is a doctrine that treats a cause of action as extinguished once judgment has been given on it so that the claimant's sole right is a right on the judgment. It is a substantive rule about the legal effect of an English judgment, which is regarded as 'of a higher nature' so that the inferior remedy is merged in the higher and therefore supersedes the underlying cause of action (King v Hoare).

Autrefois acquit and autrefois convict enforce the doctrine of merger in judgment in the criminal law (Rogers v R (1994) 181 CLR 251 (not reported by LexisNexis®)).

Res judicata has two branches: cause of action estoppel and issue estoppel. Cause of action estoppel applies where the existence or non-existence of a particular cause of action has been determined by a court of competent jurisdiction in previous litigation between the same parties. If that cause of action was found to exist, ie

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