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BCL Law Notes Principles of Civil Procedure Notes

Finality Notes

Updated Finality Notes

Principles of Civil Procedure Notes

Principles of Civil Procedure

Approximately 184 pages

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(4) Finality

KEY QUESTIONS
What is the relationship between res judicata and abuse of process? In each, what is the exception (if any) and why? To what circumstances does and should each apply?
Which approach should be preferred: RBS graduated approach or Lord Sumption Virgin Atlantic approach?
PROVISIONS
CPR 52.30 (formerly 52.17)

Re-opening a Final Appeal — (1) A final determination of any appeal will not be re-opened unless:

  • (a) necessary to avoid real injustice;

  • (b) circumstances are exceptional and make it appropriate to re-open the appeal; and

  • (c) no alternative effective remedy.

RES JUDICATA

Taylor v Lawrence

  • Re Uddin; R (Nicholas); Goring-On-Thames

ABUSE OF PROCESS
(a) Cause of Action Estoppel

Arnold v Natwest

  • Virgin Atlantic; RBS v TT

Issue not decided in previous proceeding but should have been raised

Henderson v Henderson

  • Johnson v Gore Wood; Ali Stores

Application of Ali Stores:

  • Henley v Bloom; Booth v Booth; Otkritie Capital; Clutterbuck v Cleghorn

(b) Issue Estoppel Issue decided in previous proceedings between different parties but unjust to re-litigate (collateral attack)

Hunter v Chief Constable

  • Secretary of State v Bairstow

GENERAL (Higgins and Zuckerman)

Court adjudication provides ultimate means of enforcing rights — mainstay of a system governed by the rule of law

  • Citizens need rights that are certain — if rights susceptible to challenge, uncertainty about outcome of challenge, and thus about rights themselves

    • Uncertainty weakens rule of law strong public interest in ensuring that possibility of litigation is not open-ended

      • Implications of public interest in finality: strict limitations on possibility of reopening issues already or should have been resolved by court adjudication

Acknowledge tension between (i) imperatives of timely resolution and (ii) deciding disputes according to true merits:

  • Ampthill Peerage case: Law does its best to reduce gap between justice and truth — but cases where certainty of justice prevails over possibility of truth

    • HOWEVER: For policy of closure to be compatible with justice, need safeguards (ie. appeals, including appeals out of time; application to set aside judgements) — safeguards are exceptions to “general rule of high public importance”

General Approach — Taylor v Lawrence:

  • (1) Fundamental principle of common law that outcome of litigation should be final;

  • (2) The law exceptionally allows appeals out of time;

  • (3) This (and fraud exception) are exception to a general rule of high public importance — reserved for rare cases

Re-opening Final Appeals: Taylor v Lawrence now embodied in CPR52.30 (previously 52.17):

  • Meaning of “exceptional circumstances”Taylor v Lawrence jurisdiction:

    • properly engaged where integrity of earlier litigation “critically undermined” / process corrupted (Re Uddin; Goring-on-Thames)

    • never engaged simply because it might plausibly be suggested that first decision was wrong (Goring-on-Thames) — mistakes are not exceptional (Nicholas; Otuo)

English law employs two doctrines to avoid re-litigation:

  • (1) RES JUDICATA: Once the res (thing in dispute) has been decided, parties cannot re-litigate it again

    • NOTE: “Party relative” — ie. only applies to attempts to re-litigate the same cause of issues between the same parties

    • General doctrine consists of two distinct rules with common justification: limiting abusive and duplicative litigation:

    • (1a) Cause of action estoppel: Once cause of action adjudicated, parties estopped from asserting/denying cause in subsequent proceedings between them

      • Arises when cause of action in later proceedings is identical to that in earlier proceedings

      • NOTE: Thought to be an absolute bar, subject only to fraud — HOWEVER: Must be read in light of Virgin Atlantic:

        • Lord Sumption: Cause of action estoppel only absolute bar in relation to matters actually decided [see full case notes]

    • (1b) Issue estoppel: Parties to legal proceedings bound by court’s findings on particular issues in subsequent proceedings between them if they were essential to final resolution of the proceedings and even if the subsequent proceedings involve a separate cause of action;

      • HOWEVER: Exceptions: ‘special circumstances’ that would justify re-litigating it:

        • (i) new evidence relevant to correctness of outcome which could not have been adduced in previous proceedings with reasonable diligence

        • (ii) material change in the law (Arnold)

HOWEVER: Public interest in finality of litigation has implications considerably wider than doctrine of res judicata

  • Justice may require that party should not only be prevented from re-litigating matters already decided but also issues that should have been raised in earlier proceedings

    • English law deals with such situations not by means of substantive rules but through court’s inherent jurisdiction to prevent abuse of process discretionary jurisdiction invoked to prevent litigation of matters that do not fall under cause of action or issue estoppel

  • (2) ABUSE OF PROCESS:

    • Arises where there has been no earlier decision capable of amounting to res judicata (either or both because parties or issues are different)

    • Used to address two different situations — Court can decline to hear a case where:

      • (a) party seeks to raise a cause of action or issues that was not decided but could and should have been raised decided in earlier litigation OR

      • (b) findings in earlier proceedings are relied upon by or against a person who was not a party in the first proceedings (eg. collateral attack)

    • Justifications — inter alia:

      • Public interest: sparing court resources by forbidding re-litigating of disputes which court has already given time/attention and removes risk of conflicting court decision (ensure that administration of justice not brought into disrepute)

      • Private interest: sparing litigant vexation of repeated proceedings for the same reasons

    • ...

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