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The Prevention of Abusive Cross-Border Re-Litigation*

Published online by Cambridge University Press:  17 January 2008

Peter Barnett
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Extract

The title for this paper poses a deceptively simple question, and it is this: How do we utilise an earlier obtained judgment from country X to prevent abusive re-litigation in country Y? To this question the answer might appear obvious: one reaches for the doctrine of res judicata, that arcane yet fundamental body of law which provides that an earlier judgment is conclusive in a second suit involving the same subject-matter and same legal bases. However, while the doctrine of res judicata is well understood in the domestic setting, it is not entirely obvious how the doctrine applies to foreign judgments to prevent abusive re-litigation before the English courts. Nor is it obvious how the various judgment recognition regimes—in particular the regime established by the Brussels Regulation1—pre-ordain the preclusive effects to which a foreign judgment can give rise if relied upon to prevent abusive cross-border re-litigation.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 51 , Issue 4 , October 2002 , pp. 943 - 957
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 Council Regulation (EC) No 44/2001 of 22 Dec 2000. This Regulation, known as the ‘Brussels 1 Regulation’, came into force on 1 Mar 2002. It largely replaces the 1968 Brussels Convention and will apply to all the Member States of the European Union except Denmark. Although the Regulation introduces some additions and changes, the general principles of the 1968 Convention—in particular, those relating to the recognition and enforcement of judgments, as discussed in this article—remain unaffected.

2 Nemo debet bis vexari una et eadem causa.

3 Interest reipublicae ut sit finis litium.

4 Marginson v Blackburn Borough Council [1939] 2 KB 426Google Scholar, CA. For authority in respect of arbitral bodies being ‘judicial’ for res judicata purposes, see: Doe d Davy v Haddon (1783) 3 Doug KB 310Google Scholar; Cummings v Heard (1869) LR 4 QB 669, 672Google Scholar (Lush J); Ayscough v Sheed Thomson and Co (1923) 129 LT 429Google Scholar, CA; Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630Google Scholar, CA (Diplock LJ).

5 A-G for Trinidad and Tobagao v Eriche [1893] AC 518, 522–3Google Scholar, PC: ‘It is hardly necessary to refer at length to authorities for the elementary principle that in order to establish a plea of res judicata the judgment relied on must have been pronounced by a Court having concurrent or exclusive jurisdiction directly on the point.’

6 In other words, there must be a decision or adjudication, judicial in character, which determines a question of law, fact or both fact and law. The ‘decision’ in question can be in express form or implicit in the command or prohibition constituting the judicial act. A judgment or order by consent or by default can, likewise, amount to a ‘decision’ for res judicata purposes.

7 Nouvion v Freeman (1889) 15 App Cas 1, 9Google Scholar, HL; Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853, 919, 936, 949, 971Google Scholar, HL. A judicial decision, otherwise final, is not less so because it is appealable: Nouvion v Freeman (1889) 15 App Cas 1Google Scholar, HL; Colt Industries Inc v Sarlie (No2) [1966] 1 WLR 1287Google Scholar, CA. Of course, a decision reversed on appeal is void ab initio.

8 The content of this constituent element is discussed in DSV Silo-und Verwaltungsgesellschaft mbH v Owners of The Senner and others [1985] 1 WLR 490Google Scholar, HL.

9 For the rules that settle who or what can enjoy the benefit, or suffer the burden, of a res judicata, see Barnett, PR, Res Judicata, Estoppel and Foreign Judgments, 1st edn (Oxford: Oxford University Press, 2001), ch 3.Google Scholar

10 Estoppel per rem judicatam.

11 Transit in rem judicatam.

12 (1843) 3 Hare 100; 67 ER 313.

13 See Dicey and Morris on The Conflict of Laws, 13th edn (London: Sweet & Maxwell, 2000), 468Google Scholar; Barnett, op cit, ch 2.

14 ie, the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933.

15 See text to n 4, to 8 above for the res judicata criteria. The same requirements provide the criteria by which foreign judgments are recognised under the traditional common law rules.

16 See Report on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (‘the Jenard Report’) [1979] OJ C59/1, 43–44: ‘It will be immediately noticed that … it is not necessary that the foreign judgment should have become res judicata …’.

17 In Desert Sun Loan Corp v Hill [1996] 2 All ER 847Google Scholar, CA, it was acknowledged that an issue estoppel can arise from a decision on a procedural (ie, non-substantive) issue, and thus independently of a claim.

18 North West Water Ltd v Binnie and Partners [1990] 3 All ER 547, 551Google Scholar (Drake J).

19 Thoday v Thoday [1964] P 181, 197, CA (Diplock LJ).

20 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853, HL.Google Scholar

21 Hamilton v Dutch East India Co [1732] 8 Bro PC 264, although this case deals with the Scots law of res judicata.

22 Ricardo v Garcias (1845) 12 Cl & F 368.Google Scholar

23 Blair v Curran (1939) 62 CLR 464, 532, HCA.Google Scholar

24 Hall v Odber (1809) 11 East 118Google Scholar; Smith v Nicolls (1839) 5 Bing NC 208Google Scholar; Bank of Australasia v Harding (1850) 9 CB 661Google Scholar; Barber v Lamb (1860) 8 CB(NS) 95Google Scholar; Taylor v Hollard [1902] 1 KB 676Google Scholar; Republic of India v India Steamship Co Ltd; The Indian Steamship and the Indian Grace [1993] AC 410, HL. The non-merger rule was criticised in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 966Google Scholar (Lord Wilberforce). It does not apply in Scotland; although the status of the rule in other common law jurisdictions is unclear: Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332, 346, HCA.Google Scholar

25 If the successful party elects to bring an action for enforcement of the foreign judgment, he waives his right to proceed afresh upon the same claim: Taylor v Hollard [1902] 1 KB 676.Google Scholar

26 King v Hoare (1844) 13 M&W 494Google Scholar; Kendall v Hamilton (1879) 4 App Cas 504, HL.Google Scholar

27 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853, 966Google Scholar (Lord Wilberforce).

28 See, eg, Black vYates [1992] 1 QB 526, 546Google Scholar (Potter J).

29 Republic of India v India Steamship Co Ltd; The Indian Steamship and the Indian Grace QB (Admiralty Court) 12 Dec 1990 (Sheen J); [1992] 1 Lloyd's Rep 124, CA; [1993] AC 410, HL; [1994] 2 Lloyd's Rep 331, QB (Admiralty Court) (Clarke J); [1996] 2 Lloyd's Rep 12, CA; [1998] AC 878, HL.

30 Collins, L, ‘Illogical survivals and astonishing results’ (1992) 108 LQR 393.Google Scholar

31 Republic of India v India Steamship Co Ltd; The Indian Steamship and the Indian Grace [1993] AC 410, 423–4, HL.Google Scholar

32 [1998] AC 878, 912, HL (Lord Steyn).

33 (1843) 3 Hare 100; 67 ER 313.

34 (1843) 3 Hare 100; 67 ER 313.

35 New Brunswick Ry Co Ltd v British and French Trust Corp Ltd [1939] AC 1, 19–20Google Scholar, HL (Lord Maugham LC).

36 Thoday v Thoday [1964] P 181, 197, CA (Diplock LJ).

37 Ibid, 198.

38 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853,Google Scholar HL.

39 The action in West Germany was begun by the Council of Gera on behalf of the foundation. Even though the Council had not interest in the subject-matter of the action, it maintained that it was required to act to enforce the rights of the foundation. However, the West German court concluded that the proper legal representative was a body other than the Council of Gera. The action in England was also, supposedly, an action by the foundation, but there suing by their solicitors, who likewise had no interest in the subject-matter of the action. The Council of Gera was not before the English court. Nonetheless, the issue was whether the solicitors were bringing the English action on account of the Council of Gera or acting on behalf of the foundation. If the latter, the judgment given in the West German court against the Council of Gera on their claim to represent the foundation would not raise an issue estoppel against the solicitors acting in the English action. But if the solicitors were bringing the proceedings in England as privies of the Council of Gera—would they be estopped because of the earlier determination of this issue by the West German court? On the facts, an estoppel was not made out. But their Lordships' decision is significant because they acknowledged for the first time the possibility of an issue estoppel arising from a foreign judgment.

40 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853, 967Google Scholar, HL (Lord Wilberforce).

41 DSV Silo-und Verwaltungsgesellschaft mbH v Owners of The Senner and others [1985] 1 WLR 490Google Scholar, HL.

42 [1996] 2 All ER 847, CA.

43 (1843) 3 Hare 100; 67 ER 313.

44 [2001] 2 WLR 72, HL.

45 [2001] 2 WLR 72, HL.

46 (1843) 3 Hare 100; 67 ER 313.

47 [1999] 1 All ER (Comm) 365, CA.

48 (1843) 3 Hare 100; 67 ER 313.

49 Formerly, Art 26 of the Brussels Convention.

50 Report on the Convention on the Convention on the Accession of the King of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and to the Protocol on its interpretation by the Court of Justice (‘the Schlosser Report’) [1979] OJ C59/71, 127, para 189.

51 The Jenard Report, 43.

52 [1995] ILPr 201, CA.

53 Ibid 221.

54 Case 42/76 De Wolfv Cox BV [1976] ECR 1759.

55 See, eg, Stone, PA, ‘The recognition and enforcement in England of foreign personal and proprietary judgments’ [1983] 1 LMCLQ 1, 26Google Scholar; Stone, P, The Conflict of Laws, 1st edn (London: Longman Group Ltd, 1995), 307.Google Scholar

56 See, eg, Getschow, GS, ‘If at first you do succeed: recognition of state preclusive laws in subsequent multi-state actions’ (1990) 35 Villanova L Rev 253Google Scholar; Casad, RC, ‘Issue preclusion and foreign country judgments: whose law?’ (1984) 70 Iowa L Rev 53.Google Scholar

57 [1999] 1 All ER (Comm) 365, CA.

58 [2001] 2WLR72, HL.