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Article Summary

This practice note provides guidance on the doctrine of res judicata. It explains that res judicata refers to a decision given by a judge or tribunal which disposes of a matter so it cannot be re-litigated by those bound by the judgment. The purpose is to provide finality and protect parties from being vexed twice on the same matter. The note outlines Lord Sumption's six principles in Virgin Atlantic that fall under res judicata: cause of action estoppel, estoppel against bringing a second action on the same cause, merger, issue estoppel, Henderson abuse, and the general rule against abusive proceedings. It confirms res judicata can apply in private and public law, provided relevant statutory provisions do not exclude it. When considering if res judicata arises, the court can examine various documents from the previous litigation. The difference between res judicata and abuse of process is explained - the former is substantive law and the latter is procedural. Cause of action estoppel should be considered before Henderson abuse. Guidance is given on when a party can re-litigate notwithstanding cause of action and issue estoppel. The challenges usually need to be made on appeal, with limited exceptions like fraud, collusion or exceptional circumstances.