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Finality Notes

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(4) Finality
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?


52.30 (formerly


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.


Taylor v Lawrence
- Re Uddin; R (Nicholas); Goring-OnThames


(a) Cause of Action

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

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

Hunter v Chief Constable
- Secretary of State v

(b) Issue Estoppel

Application of Ali Stores:
- Henley v Bloom; Booth v
Clutterbuck v Cleghorn

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

1 o

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:
o properly engaged where integrity of earlier litigation "critically undermined" / process corrupted (Re Uddin; Goring-on-Thames)
o 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 estoppel2

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

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


(2a) Disallowing matters (cause of action or issue) that could have been raised in previous proceedings
 General principle: Henderson v Henderson: In the absence of special circumstances, parties cannot return to Court to advance arguments or claims which they should have put forward for decision in earlier proceedings
 Johnson v Gore Wood (explaining court approach to exercise of this jurisdiction):
 Party who wishes to raise such matters must persuade court that it would be unjust to prevent him from doing so

 Court must engage in broad, merits-based judgment
 NOTE: No simple test for determining whether proceedings are an abuse of process
 Problem: Recent EWCA decisions create impression that Court "less committed" and reluctance to applying Henderson v Henderson principle —
Aldi Stores — Booth v Booth; Henley v Bloom


(2b) Disallowing collateral attacks on court decisions
 Court may prevent party advancing against a stranger if and only if it would be unjust to allow the party to do so
 Leading authority: Hunter v Chief Constable of West Midlands:
 Hunter principle regarded as matter of high public policy despite fact that accused suffered grave miscarriage of justice: Notwithstanding
"diminution in the moral legitimacy of the decision", conflicting court decisions on identical issues bound to corrode public trust i
 When considering objection on ground of collateral attack:
 (i) Does the party advance an argument inconsistent with adverse finding in earlier proceedings (ie. is there a collateral attack)?
 (ii) If so, is it unfair to a party to later proceedings that the same issues be re-litigated?
 (iii) Or, would permitting such re-litigation bring administration of justice into disrepute?
  If yes to (i) and yes to (ii) or (iii) — struck out for abuse of process

NOTE: Considerable overlap between res judicata and abuse of process jurisdiction HOWEVER important to keep clear distinction between substantive rule-based jurisdiction and discretionary procedural jurisdiction:
- Cause of action estoppel: absolute bar to re-litigation — no discretion
- Issue estoppel: absolute bar to re-litigation except in "special circumstances"
- Cf. Abuse of process: balance between conflict interests of parties and public, and reach fact-based conclusion — discretionary
- HOWEVER: Higgins: Dividing line between principles "far from clear": Good work begun in Johnson v Gore Wood to untangle Henderson v Henderson (abuse of process)
rule from (cause of action and issue) estoppel complicated by Lord Sumption's analysis in Virgin Atlantic of the decision in Arnold v Natwest
 Now appears that cause of action estoppel not absolute — and dividing line between cause of action and issue estoppel "arguably indistinguishable"
o Suggests that Singapore decision on scope of issue estoppel (RBS) provides better interpretation of Arnold and more coherent framework for rules of res judicata

(1) The Graduated Approach to Res Judicata and Abuse of Process (accepted in RBS — Singapore)
Cause of Action

To the same cause of action in litigation involving same parties (or their privies) [issues decided and not decided to determine the cause of action]


Basis for exceptions (or discretion)

Issue Estoppel

To all issues (ie. points) decided if it was essential to (non)existence of the cause of action in litigation involving the same parties but different cause of action


Special circumstances (Arnold):
- Material change in law
- New evidence which could not have been obtained with reasonable diligence in earlier litigation

Abuse of

To different issues involving same parties OR same issue involving different parties


Broad merits-based assessment (Johnson)


Basis for exceptions
*Fraud? (Original judgment set aside)


Exceptional circumstances that would cause injustice — typically, two situations:
- (i) fresh evidence which could not with reasonable diligence have been brought forward
- (ii) material change in law

Litigation involving different parties is less likely to be abusive (Dexter)

(2) The Sumption approach Virgin Atlantic (explaining Arnold)
Cause of action estoppel:
First Limb
Cause of action estoppel:
Second Limb

To all points decided in order to establish the (non)existence of a cause of action in earlier litigation involving the same parties.

Issue estoppel

To all points which (i) were raised but unsuccessfully or (ii) were not raised in the earlier proceedings IF points could and should with reasonable diligence has been raised

Abuse of

No direct analysis but claimed res judicata and abuse are juridically very different yet share common purpose of limiting abusive and duplicative litigation.

4 To all points essential to (non)existence of a cause of action which were not decided (because not raised) in earlier litigation involving the same parties IF points could and should with reasonable diligence have been raised

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