Emily Skinner
Emily is an expert in employment law having practised as an employment-specialist solicitor at an international City law firm before transferring to the Bar and joining Old Square Chambers in 2021.
Practice Area
Panel
- Contributing Author
Qualified Year
- 2021
Experience
- Hogan Lovells (2014 - 2020)
Membership
- Employment Lawyers Association
Qualifications
- Graduate Diploma in Law (2013)
- MA (Cantab) History (2010)
Education
- BPP Law School (2012-2013)
- University of Cambridge (2007-2010)
4 Contributions by Emily Skinner
PRACTICE NOTES
Foreign judgments and arbitral awards: res judicata, estoppel, interim decisions, merger, state immunity and public policy defences in England and Wales
This Practice Note examines res judicata and introduces whether it can be invoked in relation to a foreign judgment. It is necessary to decide if the foreign judgment will be recognised and whether it is res judicata. The Practice Note addresses particular matters concerning foreign judgments and the doctrine of merger in judgment, issue estoppel and abuse of process, together with defences to res judicata in respect of a foreign judgment and res judicata concerning foreign arbitral awards. This Practice Note assumes a general understanding of the common law doctrine of res judicata. For guidance, see Practice Note The doctrine of res judicata.
Relevance of res judicata for foreign judgments
The relevance of res judicata is that a foreign judgment functions as a defence to proceedings in the courts of England and Wales. Where a foreign court has given a judgment in a civil or commercial matter, a defendant before the courts of England and Wales may rely on two forms of estoppel:
cause of action estoppel—the claimant is prevented from bringing the same claim as that determined by the foreign judgment. For guidance on the general principles, see
...
Dispute Resolution
PRACTICE NOTES
Res judicata and Henderson abuse: principles, scope, CPR 3.4(2)(b), and the Aldi guidelines (England and Wales)
There is some overlap between the doctrine of res judicata and the Henderson abuse principle, discussed below. Note too that these concepts intersect with the procedural basis for striking out a claim as an abuse of the court’s process under CPR 3.4(2)(b); see below and Practice Note: Strike out for abuse of process (civil) (CPR 3.4(2)(b))—Abuse of process by second proceedings.
What is res judicata?
A res judicata is a determination made by a judge or tribunal with jurisdiction over the cause of action and the parties, which disposes, with finality, of the matter decided so that those bound by the judgment cannot re-litigate it, save on appeal. Those bound by the ruling remain so unless and until altered on appeal.
For further guidance on the purpose of, and when you can establish, a res judicata, see Practice Notes:
The doctrine of res judicata
Key requirements to establish a res judicata
What is Henderson abuse?
In a legal context, abuse of process occurs where the court’s process is deployed for a purpose, or in a way, significantly different from its ordinary and proper use (Att General v Barker). While distinct concepts, see below, they are frequently considered together...
Dispute Resolution
PRACTICE NOTES
Res judicata in England and Wales: requirements, scope and limits: judicial decision, pronouncement, jurisdiction, finality, merits, privity, tribunals, consent/default judgments, foreign decisions, and examples of privies and non-privies
The elements of establishing a res judicata
To rely on res judicata, it must be shown that:
the underlying ruling, whether domestic or foreign, was a judicial determination in the relevant sense
it was actually pronounced
the tribunal possessed jurisdiction over the parties and the subject-matter
the decision was:
final
on the merits
it resolved an issue raised in the later proceedings, and
the parties are the same or in privity, or the earlier ruling was in rem (Marginson v Blackburn and Leong v Hock Hua Bank Bhd [2008] 3 MLJ 340 (not reported by LexisNexis®) and Chong v Leow [2008] 6 MLJ 781 (not reported by LexisNexis®))
Res judicata—what is a 'judicial decision'?
For these purposes, the ruling must originate from a tribunal exercising judicial functions under English law or, where foreign, under the law of that state...
Dispute Resolution
PRACTICE NOTES
Res judicata: doctrine, Lord Sumption’s six principles, merger and estoppel, Henderson abuse, application in public law and tribunals, and exceptions permitting re-litigation
What is a res judicata?
A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal.
Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice.
in personam—binds the parties and their privies
in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world)
A party may rely on res judicata:
as an estoppel to defeat an opponent’s claim or defence; and/or
as the basis of their own claim or defence
For guidance on the key requirements for establishing a res judicata, see Practice Note: Key requirements to establish a res judicata.
Res Judicata—Lord Sumption’s six general principles (Virgin Atlantic)
In Virgin Atlantic, Lord Sumption outlined six general principles that fall...
Dispute Resolution
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