The doctrine of res judicata

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • The doctrine of res judicata
  • What is a res judicata?
  • Res Judicata—Lord Sumption’s six general principles (Virgin Atlantic)
  • When can you use the res judicata doctrine?
  • The relationship between res judicata and abuse of process
  • When can you re-litigate notwithstanding a cause of action estoppel or issue estoppel?

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:

  1. in personam—binds the parties and their privies

  2. 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:

  1. as an estoppel against their opponent’s claim or defence; and/or

  2. 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:

  1. 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

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