Previous Litigation

Res Judicata

Where a court makes a final decision on the merits, deciding a matter or necessarily deciding the same issues, new proceedings between the same parties may be prohibited on the basis of res judicata /matter decided. In these circumstances, new proceedings would be struck out as an abuse of process.

Res judicata, in the strict sense of the expression, applies where the matter sought to be litigated has already been decided. It may relate to the claim or an individual issue (issue estoppel).

With Res Judicata,  the issue to be litigated must be identical. In contrast, the broader principle applies where a new issue is raised which was not decided in the previous proceedings but is one that the other party could and should have brought forward in the previous proceedings.

Henderson v Henderson

There is a wider principle than res judicata applies not only to points raised expressly the subject of litigation but also to every point which properly should have been the subject of litigation which the parties exercising reasonable diligence might have brought forward at the time. This is the principle in Henderson v Henderson. A person may be prohibited from re-litigating a matter that a previous case did not expressly decide but is one which would have could have been taken in the previous proceedings, but was not.

In the case of res judicata, in the absence of a defence to the application of the doctrine such as fraud, the availability of fresh evidence in respect of issue estoppel or other special cases, the plea will necessarily succeed. On the other hand, the broader principle in Henderson applies on the basis that it would be an abuse of process to allow the party to raise a  different that should have been raised before. The court adopts a more broad-based approach.

Bring Forward the Whole Case

The court requires parties to proceedings to bring forward their whole case. They will not generally allow a party to raise the same subject matter which could have been brought forward previously, even if they have not done so because of negligence, inadvertence, or accident.

Parties must bring their whole case before the court so that all aspects may be finally decided. In the absence of special circumstances,  they cannot rerun arguments claims and defences, they could have put forward on the first occasion but failed to raise.

This is based on a public policy consideration of the desirability that litigation should be concluded/conclusive.

Flexible

The principle is discretionary in nature. The jurisdiction is based on the notion of an abuse of process. It may involve a collateral attack on a previous decision. The mere fact that the matter could have been raised in the earlier proceedings would not be conclusive. It may not make the later proceedings necessarily abusive.

The approach is broad-based and merit-based, taking account of the public and private interests involved and all of the facts of the case. The key question is whether the circumstances are such that a party is misusing or abusing the process by seeking to raise an issue which could have been raised before.

The principle should not be rigidly applied. There may be special circumstances where its application may be unfair excessive or disproportionate. The point concerned must be one which could have been raised in the previous proceedings with due diligence. This may not be the case in particular circumstances.

The principle applies between the same parties. If a party could have been joined to earlier proceedings, it may also apply. This may be applicable between a person and a company he or she controls. Where there is a sufficient degree of identity between the parties and the original proceedings,  the principle may apply.

There may be instances where the court finds there is not an abuse of process. This may arise where previous results were procured by fraud.

Parallel Criminal Proceedings

If proceedings effectively seek to challenge and circumvent a criminal decision, they may be set aside as an abuse of process. They may seek to litigate manners that have been decided beyond reasonable doubt in earlier proceedings in a new trial on the balance of probabilities.

The principle applies when criminal proceedings have ended in the plaintiff’s conviction. Where the plaintiff was acquitted, civil proceedings may be brought in respect of the same matter. The standard of proof is different.

An acquittal in criminal proceedings is not necessarily determinative of the same issues in civil proceedings. When the civil proceedings seek to assert matters which were the subject of an acquittal they are not necessarily an abuse of process.