Determination of jurisdiction will not always give rise to issue estoppel (News, 1 December 2014)

Table of contents

• Impact of this case
• Relevant background law
• The facts and earlier decisions
• The Court of Appeal judgment

Article summary

The doctrine of res judicata does not apply in circumstances where there has been no actual adjudication of any issue and no action by a party which would justify treating him as having consented, either expressly or by implication, to having conceded the issue by choosing not to have the matter formally determined. The fact that there is a substantive hearing on the question of jurisdiction is not enough to bring res judicata into play. However, the principle of issue estoppel will be raised where, in the context of determining a jurisdictional issue, the court or tribunal has had to engage with the merits of the case. Court of Appeal: Nayif v The High Commission Of Brunei Darussalam.