Judgement Finality

In Rem

Judgements may be divided into two classes.  Judgements in rem bind all persons.

Judgements in rem exist only in a narrow number of categories relating to property, admiralty and the status of persons and things. A judgement in rem determines the status of a person or thing or the disposition of a thing, as opposed to the relative interests or rights of the parties to the litigation.

A judgment in rem may declare status or title, forfeiture, condemnation or sale. They are a particular feature in admiralty matters, which might, for example, involve the establishment of a lien or the condemnation of a vessel as prize. It may declare the status of a person, such as probate, divorce or nullity. Further examples include adjudication of bankruptcy and similar declarations of status.

Some types of orders are not judgements in rem, although they may appear to have some of the requisite characteristics. These include an order to wind up a company, a coroner’s inquisition and a decree of legitimacy.

In Personam

A judgment in personam is a judgment between the parties to litigation which determines the rights in respect of a matter in dispute. Judgements in personam bind the parties to the litigation only.

It does not declare status or interests except as between the parties.  Judgements in personam include all judgements which are not in rem. They do not affect the rights of a third party.

Estoppel by Record

Estoppel by record  supports the principle that judgements which are unappealed are final.  Where a judgement determines rights between parties and has not been reversed on appeal or has not been appealed, it creates and estoppel between  the parties.  In the absence of the this principle, cases could be re-opened and re-litigated on multiple occasions.

The proceedings must have resulted in a final court order or judgement.  The record of the court’s decision in the matter  must be available or proof must be given of its absence and secondary evidence given of its content. The fact that a judgement was obtained by consent or default does not affect its finality, provided that the parties had legal capacity.

The previous judgement may be raised as an estoppel.  It is necessary to show the subject matter in dispute was the same and the matters in controversy in  the second suit were also in controversy or open the controversy and determined in the previous proceeding.

The principle of estoppel is wider than that of res judicata.  Where an issue is determined with certainty, an estoppel may arise even if the circumstances are not sufficient to meet the test for res judicata.

A person may be precluded from litigating  contrary to the position which has put in the previous dispute and was found against him.  Estoppel may apply even if the matters in dispute and  the objects of litigation differ. Where facts were directly in issue in the first case, the findings in that  case are conclusive in the second action. This matter may be one of  fact or one of law or one of mixed fact and law.

Res Judicata (Already Decided)

The party to proceedings may raise the defence of res judicata where there has been  proceedings in the same matter by the same parties, which has resulted in a decree or judgement in his favour. In the absence of the principle, the defendant could be sued twice in relation to the same matter.

Res judicata covers the entire claim. The defence alleges in effect that the relevant rights and obligations were concluded by the earlier decision.

The court may strike out a claim or defence which has been previously litigated and decided.The court is entitled to look at the judge’s judgement and reasoning and beyond the bare order and record.  The judge’s reasons cannot be examined for the purpose of excluding from the scope, matters which according to the issues set out in the pleadings and the order, are in dispute therein.

Application

Res judicata is narrower than estoppel and is in sense, a type of estoppel.  The parties are estopped by the specific findings of fact and determinations of law in the previous matter.

In order for res judicata to apply, the claim must be the same and the claimant must had the opportunity to claim, (including where he could have done so, but for his own fault.)  that which he claims in the second case.

Res judicata arises where the matter has been adjudicated on its merits, rather than on a collateral or a technical ground.  The atter must have been raised or capable of being raised in the earlier proceedings.

The principle of res judicata reflects the  general principle that litigation should be final. Matters which were raised or could have been raised in earlier proceedings, cannot be raised again in later proceedings.

The fact that fresh evidence has come to light is insufficient to avoid res judicata.  There are a very limited number of other procedures whereby orders may be set aside due to entirely fresh evidence or circumstances.  There must be something in the nature of fraud or collusion before the courts will set aside an earlier order.

The principle of res judicata applies in all courts that are competent to deal with the matter.

Merger in Judgment

A related principle prevents the claimant obtaining a  second judgement on the same matter.  This is not based on estoppel, but on the principle that his claim has merged in the judgement.  Similarly, where the plaintiff’s claim, if adjudicated later might have been more extensive and awarded greater damages (e.g  personal injuries have taken and unforeseen turn for the worst) , the matter may not be reopened, as the order has concluded it.

Where persons are jointly liable without also being severally liable recovery against one will preclude the plaintiff from proceeding against the other persons who are also jointly liable. This is because  the single cause of action has merged in the judgement.

Merger will not take place unless the same claim or cause of action arises in both cases.  The claimant must have had the opportunity of recovering in the first matter what he seeks to recover in the second.

Where the  claim relates to different circumstances or where for whatever reason it was not possible to have sought the orders in the first proceedings, the principle does  not apply.

In the case of judgement in rem by a competent court, which is final, the matter is conclusive in respect of the subject matter concerned.  Third parties are bound by the result notwithstanding that they are not the party to the proceeding.  The judgement must be limited and in accordance to the jurisdiction of the court and the State within which it is situate.

In Rem and Privies

A case in rem is conclusive in relation to the matters decided. It does not extend to incidental or implied matters. An example of an order in rem is the grant of probate proving a will in solemn form (i.e., by court order). The essential parts of the judgement are only binding on third parties.

A judgement in rem given by consent is unlikely to  bind third parties. An act or agreement between third parties does not usually  not bind others.

A judgement between parties in personam raises an estoppel between the parties and their successors privies who derive title from them, only. In this context privies are ancestors and descendants (privies in blood),  privies in law (including persons and their legal representatives such as bankrupt and trustee in bankruptcy and privies in estate (being successive property owners, assignor and assignees).

It is not enough that the parties have similar interests. One must  derive title from the other.The succession in title of privies must arise after proceedings.

Judgements are binding on privies in the same capacity as their predecessor. Where they sue in a different capacity the principle does not apply. Trustees and their beneficiaries are privies.

Although not strictly privies, some parties’ interests are shown derivative from those of another that they are bound as quasi privies. An indemnifier and indemnified person are privies as regards a third party actions against the party indemnified.

Estoppel must be mutual.  Each party to the second proceedings must have been party or privy to the earlier proceedings.

Limits

Judgment for the defendant will may not necessarily create an estoppel to the same extent as a judgment for the plaintiff.  A judgment for the plaintiff generally implies that all issues raised by the plaintiff have succeeded and / or that issues raised by the defendant have failed.  In the case of a defence, there may be several distinct defences. The defendant may have to show that the defences turned on grounds which are the subject of the second action.

Judgement obtained by fraud or collusion does not create an estoppel. Where privies have taken as purchasers in good faith without notice of the matter, they may not be subject to the principle.  In order to avoid being estopped, it is  necessary to have the first judgement set aside.

A matter which is not inconsistent with the record does not create an estoppel. A party may allege something that is consistent with the record. A  matter which could have been raised by the defence but was not so raised, which may be the subject of the independent proceedings at the suit of the defendant does not create an estoppel. This raises the somewhat circular question of when matters can be raised independently in subsequent proceedings, where they could have been raised in earlier proceedings. It  applies to a defence or a counterclaim.

By definition, estoppel does not arise in matters that were not in dispute in the previous proceedings. It is not enough that they may have been decided impliedly. However, this does not apply to express or implied admissions in the pleadings. It applies only where full relief was not available in the earlier proceedings.

In pleading an estoppel, it is possible to give evidence in relation to the matters in dispute in the earlier proceedings.  The judgements will be looked together with the pleadings.

Judgments Covered

Where the judgement is by default, its effect is limited to what appears on the face of the judgement. Where the defendant consents to the judgement before pleadings, he is not precluded from claiming on and setting up matters that might have otherwise offered in a defence or counterclaim, as they have never been adjudicated and were not an issue. If, however, he pleads the matters concerned in his defence and then consents to judgment he is estopped in respect of such matters.

Facts which are admitted by the other party, or are indirectly admitted by contradicting some facts only, are conclusively determined between parties. Where there has been a judgement in default of defence, a person is not estopped from pleading in a manner which is not inconsistent with the claim.

In order to effect an estoppel, the judgement it must be final.  It must be on the merits.  It must not be merely interlocutory.

Tribunals and Arbitration

The principle applies by analogy to tribunals whether constituted by law or (contract) consent to which the parties have submitted. Where the parties have submitted voluntarily to a foreign jurisdiction, this estoppel is termed estoppel quasi of the record.

Certain tribunals formed by statute are equivalent to courts for this purpose, and their decisions have the same effect as a judgment.

Arbitration agreements are binding on parties and their privies in the absence of agreement to the contrary.