Jack Mitchell
Jack Mitchell specialises only in employment law and advises on the entire spectrum of claims, but is best known for work on whistleblowing and discrimination claims. He advises on the commercial aspects of employment, providing advice to both corporate and individual clients on a broad range of commercial matters including breach of contract claims, shareholder disputes and partnership issues.
He is regularly instructed in large complex claims in all areas of employment law, from Tribunals to High Court claims and appeals at all levels.
Jack has been elected to ELBA (Employment Law Bar Association) and has been appointed its Treasurer.
Other publications:
Whistleblowing: Law and Practice
Fourth Edition (2022), Third Edition (2017), Second (2012) and First (2007), with Jeremy Lewis KC, John Bowers KC and Martin Fodder.
Published by Oxford University Press (This should include an outline of the most important points of your career. It should not exceed 250 words in length.)
Practice Area
Panel
- Contributing Author
Qualified Year
- 1994
Membership
- Employment Law Bar Association
6 Contributions by Jack Mitchell
PRACTICE NOTES
Cause of action estoppel: elements, merits requirement, identity of causes, absolute bar; relationship with issue estoppel and Henderson abuse; multi-party and interim issues; trade mark opposition; evidential materials considered
Cause of action estoppel is a sub-category of the doctrine of res judicata (see Practice Note: The doctrine of res judicata). Alongside the general key requirements for proving res judicata (see Practice Note: Key requirements to establish a res judicata), this Practice Note addresses the particular criteria for establishing a cause of action estoppel. For guidance on issue estoppel, see Practice Note: Issue estoppel.
What is cause of action estoppel?
the same parties, or those in privity with them; and
the dispute concerns the same subject matter, and a second claim advances a cause of action identical to that pursued in the first claim (Arnold v National Westminster)
...
Dispute Resolution
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
Merger in Judgment in England and Wales: Former Recovery, Distinction from res judicata, Elements, Pleading and Key Limits (including Declaratory Judgments)
What is merger in judgment and its relationship with res judicata?
A res judicata is a determination made by a judge or tribunal with authority over the cause of action and the parties, which brings the decided matter to a final conclusion so that it cannot be re-litigated by those bound by the judgment, save on appeal. For further guidance, see Practice Note: The doctrine of res judicata.
Merger in judgment is the doctrine that, once judgment is entered on a cause of action, the cause is extinguished and the claimant’s only entitlement is upon the judgment. It is a substantive rule concerning the legal effect of an English judgment, treated as ‘of a higher nature’, so that the lesser remedy is absorbed into the greater and thus the underlying cause of action is superseded (King v Hoare).
In the criminal sphere, autrefois acquit and autrefois convict give effect to the doctrine of merger in judgment (Rogers v R (1994) 181 CLR 251 (at pp 256, 279) (not reported by LexisNexis®), although discussed in: Spencer Bower and Handley: Res Judicata [14.31]). Res judicata has two branches: cause of action estoppel and issue...
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
If you expected to see yourself on this page, click here.
