Finality Notes

Finality

See also Appeals (reopening) & Collective redress notes (opt-out / binding opt-in)

The value of certainty

Ampthill Peerage Case (1977) per Lord Wilberforce

• the need for justice, including certainty & finality, can prevail over need for truth

• if rights can always be unwound, then are less valuable & creates uncertainty

• Exceptions

  • Appeals, including out of time

  • Judgments to be attacked on grounds of fraud (at least of a party, if not of witnesses)

  • Extensions of limitation periods for mistake, fraud etc

• Interests

  • Certainty of rights — favours finality, unless claim based on rights frustrated by factors beyond claimant’s control

  • Access to justice

  • Proportionate use of public & private resources — proportionality can cut both ways, so fact sensitive

  • For defendants, peace from litigation & vexation

  • Public interest in correct outcomes — but time erodes value of evidence

  • Avoiding inconsistent judgments

Rules for avoiding re-litigation

Time limits

Res judicata

• Same parties cannot relitigate same issue — including (a) cause of action estoppel and (b) issue estoppel

• Arises only in relation to final judgments — include default & consent judgments

• Possibly only adversarial litigation — eg child welfare proceedings excluded

• Can be waived — subject to public interest in overriding objective re fair allocation of resources

• Applies only to same parties or their privies: Resolution Chemicals

  • Whether new party had interest in subject matter of previous litigation

  • Whether new party was in reality the party to the original proceeding

  • Whether it was just that the new party should be bound by the outcome of the previous litigation

• Policy

  • Protects due process rights of strangers

  • Judgments inadmissible as evidence in other proceedings: Bairstow

  • Where one party is the same — eg should defendant to several actions on same issue be bound / permitted to relitigate losses or be able to invoke wins against strangers —

    • But parties invest resources in litigation based on value of dispute — not based on prospective claims

    • <> uses court resources, risk of inconsistent judgments

    • Taylor v Nugent — claimant outside group litigation bound by findings

—Cause of action estoppel

• Once cause has been adjudicated, estopped from asserting or denying the cause in subsequent proceedings

  • Even if new argument, new evidence, or change in the law

• Was considered to be an absolute bar — until Virgin Atlantic (claimant ordered to pay damages for infringement of patent — patent later revoked by EUPO with retrospective effect on grounds of prior use CA: damages still due for cause of action estoppel — SC: damages could be overturned)

  • Dilutes difference with issue estoppel

  • Consequence of concurrent jurisdictions

  • If had happened between two English proceedings?

  • Sumption — validity of patent was decided, but consequences of revocation by EUPO hadn’t been decided

    • But clearly, because EUPO was not in issue — would mean that any subsequent change in law could reopen

  • Neuberger — effect of revocation is retrospective so people are entitled to conduct themselves as though it never existed

—Issue estoppel

• Parties are bound by findings in subsequent proceedings for separate cause of action between them—

  • If findings essential to final resolution to those proceedings

    • Based in proportionality analysis — if issue wasn’t necessary to resolution for dispute, may not have been fully argued & best evidence presented — so needn’t bar reargument

    • If issues are alternatives and only one succeeds, then may not be blocked by issue estoppel

  • Unless there are ‘special circumstances’, including if —

    • Fresh evidence could not have been obtained without reasonable diligence

    • There has been a material change in the law

Abuse of process — enlarged res judicata

• Applies if—

  • issue has not been decided but could & should have been decided in earlier proceeding; or

  • Issue...

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