UK: The Prevention of Abusive Cross-Border Re-Litigation

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.

In this context, therefore, the primary purpose of this paper is to consider how foreign judgments can be relied upon to prevent abusive cross-border re-litigation, and this by reference to how the doctrine of res judicata applies to foreign judgments in English private international law. It is proposed, first of all, that we look briefly, and by way of background, at the doctrine of res judicata and the difficulties that arise in the cross-border context. We will then look more closely at two areas: one, the various preclusive pleas that can be used to prevent abusive cross-border re-litigation in England; and two, how to prevent abusive cross-border re-litigation by relying upon judgments recognised under the Brussels Regulation.

A res judicata is a judicial decision of special character because, being pronounced by a court or tribunal having jurisdiction over the subject-matter of the parties, it disposes finally and conclusively of the matters in controversy, such that – other than on appeal – that subject matter cannot be re-litigated between the same parties or their privies. Instead, the subject-matter becomes (as the Latin attests) ‘a thing adjudicated’, with the res judicata thereafter standing as the final and conclusive resolution of the parties’ dispute. The resultant doctrine of res judicata therefore encapsulates a principle inherent in all judicial systems, namely that an earlier adjudication is conclusive in a second suit involving the same subject-matter and same legal bases. As such, the doctrine reflects two fundamental maxims of justice: that no person should be proceeded against twice in respect of the same subject matter,² and that it is in the interest of the state that repetitious and wasteful re-litigation be avoided.³

In order for a decision to qualify as a res judicata, it must be pronounced by a judicial tribunal^{4 o}f competent jurisdiction,⁵ and the decision itself must be a judicial decision⁶ that is final and conclusive⁷ and on the merits.⁸ Where these constituent elements are satisfied, the res judicata status of the decision can then be pleaded, in various ways, in order to prevent or preclude subsequent proceedings between the same parties (or their privies) involving the same (or similar) subject-matter.⁹ These preclusive pleas can be classified in three main ways. First, there are the estoppel-based¹⁰ pleas which prevent contradiction of previously determined subject matter: cause of action (or claim) estoppel and issue estoppel. Secondly, there is the plea that prevents reassertion by a successful claimant of a claim upon which he has obtained recovery: the plea of former recovery, or merger in judgment.¹¹ And, thirdly, there is the abuse of process plea that prevents a party from litigating subject matter that properly belonged to earlier proceedings, and which could and should have been litigated there and then: the rule in Henderson v Henderson.¹²

But how do these preclusive pleas prevent cross-border re-litigation? Or, in other words: to what extent do English courts acknowledge foreign judgments as giving rise to these pleas? As with many questions in the conflict of laws, complexity intrudes simply because of the cross-border element. Most obvious is the requirement that a foreign judgment (unlike a local judgment) must be recognised before it can have enforcement and / or preclusive effect in the local forum.¹³ Recognition of a foreign judgment may be achieved in accordance with either the traditional common law rules, the rules for registration under certain reciprocal statutory regimes,¹⁴ or the rules of the Brussels Regulation. However, recognition is only half the battle: the foreign judgment must also qualify as a valid res judicata if it is to have preclusive effect.

At this point an anomaly emerges as a consequence of the different regimes for recognising foreign judgments. The criteria for recognising foreign judgments under the common law (and related statutory) rules are co-extensive with the criteria by which an English court assesses whether a judgment qualifies as a res judicata.¹⁵ This ostensibly means the common law rules automatically recognise those foreign judgments that satisfy the in-built English law conception of a res judicata. By contrast, judgments recognised under the Brussels Regulation do not have to satisfy any criteria that verifies their res judicata status.¹⁶ Indeed, it is immaterial whether the judgment is final and conclusive, let alone a res judicata, for the purposes of recognition. This means recognising courts applying the Brussels Regulation need have no res judicata conception in mind at the recognition stage, and so the res judicata status of the foreign judgment must fall to be determined at a later stage, leaving open the possibility of deferring to the law of (perhaps) the judgment-rendering court to supply the criteria by which the res judicata status can be ascertained.

Inevitably, this anomaly underscores a further set of complex (and more fundamental, because normative) questions. Which law ought to supply the criteria by which the res judicata of a foreign judgment is verified? Must the judgment be acknowledged as a res judicata if the preclusive doctrines of the foreign law would say as much, or is this a question to be determined by the law of the recognising court? Given that res judicata criteria (albeit criteria developed according to English law) are intrinsic to the traditional common law rules for foreign judgment recognition, how is the res judicata status of a judgment to be determined when it falls to be recognised under the Brussels Regulation, where the res judicata status of the judgment is not relevant at the recognition stage? And, even supposing a foreign judgment qualifies in England as a valid res judicata (regardless the recognition regime), how do we assess whether the subject-matter is the same, or determine whether the parties, or their privies, before the subsequent proceedings should be bound by the foreign judgment? Indeed, are the preclusive pleas that prevent abusive cross-border re-litigation to be supplied by the law of the original judgment-rendering court, as "effects" which are attached to the judgment, or is it for the recognising court to decide, according to its own law, how the foreign judgment will operate to prevent the abusive cross-border re-litigation?

These complex questions have not been answered in the English case law because they have rarely, if at all, been addressed. Rather, the cases involving the preclusive effects of foreign judgments have proceeded on the (deceptively simple) assumption that the English doctrine of res judicata applies, and hence English law supplies both the criteria by which to verify the res judicata status of the judgment and the preclusive pleas to which such judgments give rise. For this reason, it is helpful to examine how the English courts have traditionally viewed the operation of the various preclusive pleas by foreign judgments in cases of abusive cross-border re-litigation.

Cause of action estoppel is the simplest preclusive plea. Whereas issue estoppel precludes the contradiction of issues that might arise in separate claims (or independently of a claim¹⁷), cause of action estoppel is ‘confined to cases where the cause of action and the parties are the same in the second suit as they are in the first’.¹⁸ It is a plea that prevents a party in subsequent litigation from asserting or denying the existence of a particular cause of action (or claim) in circumstances where the non-existence or existence has been determined by a court of competent jurisdiction in previous litigation between the same parties or their privies.¹⁹

It is not disputed that the plea can be maintained in reliance upon a foreign res judicata, provided the foreign judgment is capable of recognition in England.²⁰ Certainly an action on the judgment will enliven such an estoppel.²¹ But the judgment can also be pleaded as a defence (or counterclaim) to any claim (or defence) that challenges the existence or non-existence of the claim.²² In this way the estoppel is used defensively – that is, in response to the contradiction. Thus, where a claimant, having litigated a claim abroad and lost, attempts to litigate afresh the same claim in England, the defendant may rely on the foreign judgment in its favour to estop the claimant from again litigating that which has been disposed. In such circumstances, the defendant pleads the foreign judgment as a defence to any claim that challenges the correctness of the earlier decision. As such, the important thing to note about cause of action estoppel is that it responds to that type of abusive re-litigation in which contradiction of the earlier foreign judgment is what describes the claimant’s cross-border action.

But what if the claimant in the subsequent proceedings is not contradicting the earlier judgment upon the cause of action, but re-asserting the claim in order to obtain further recovery for the same relief? This brings us to our second plea – that which prevents a successful claimant from again recovering a judgment by reasserting the same claim having already recovered against the same party.

Like cause of action estoppel, the plea of former recovery presupposes a judgment upon a claim or cause of action. But unlike the estoppel plea, former recovery only operates against the party in whose favour a judicial tribunal of competent jurisdiction has pronounced a final and conclusive judgment granting recovery or relief. The party that recovers the judgment in their favour is precluded from afterwards recovering a second judgment against the same party on the same claim for the same relief. In the domestic setting, this plea is known as merger in judgment because, in the words of Sir Owen Dixon, "the very right or cause of action claimed or put in suit has in the first proceedings passed into judgment, so that it merged and has no longer an independent existence".²³

But the doctrine of merger does not apply where the judgment is a foreign one.²⁴ This means a foreign judgment at common law does not merge with the underlying claim, and so a successful claimant abroad may elect either to enforce the judgment²⁵ or, if the judgment remains unsatisfied, sue again in England for further relief upon the same claim.²⁶

To counter this "illogical"²⁷ rule, Section 34 of the Civil Jurisdiction and Judgments Act 1982 was enacted. This provides that: "No proceedings may be brought by a person in England and Wales or Northern Ireland on a cause of action in respect of which a judgment has been given in his favour in proceedings between the same parties, or their privies, in a court in another part of the United Kingdom or in a court of an overseas country, unless that judgment is not enforceable or entitled to recognition in England and Wales or, as the case may be, in Northern Ireland."

It was widely thought that this provision extended the principle of merger to foreign judgments.²⁸ But the Indian Grace litigation – six separate decisions, including twice to the House of Lords²⁹ – revealed, amongst other things, that section 34 was not as simple as that. It also revealed just how careful litigants (and their legal advisers) must be if involved in cross-border litigation in both England and abroad.

The Indian Grace was a cargo vessel, which was carrying 850 tons of ammunition from Sweden to India, when a fire broke out in her hold. Fifty-one shells were jettisoned en route, but on inspection upon arrival in India it appeared the remaining cargo – valued at £2.6 million – was also ruined. Although the claimants notified the defendant ship-owner that a claim for the full value of the cargo would be made, the claimants first commenced proceedings in India for non-delivery of the 51 shells – worth about £9000. A year later, but before judgment in India, proceedings in rem were issued in England claiming damages in the sum of £2.6 million. As soon as judgment in India was delivered, the defendant applied to strike out these English proceedings, arguing they constituted abusive cross-border re-litigation because the claim had now been rendered res judicata by the Indian judgment.

In the final (truly astonishing) result, this res judicata plea was successful: the claimants were barred from continuing their proceedings in England by section 34, and so (together with their advisers) had to live with the fact that because they had recovered a judgment in India awarding £9000 in respect of a tiny and discrete fraction of their true claim, their subsequent proceedings before the Admiralty Court in England in the sum of £2.6 million was barred. That said, a number of interesting points of analysis arose during ten years of litigation.

As mentioned already, section 34 does not enact a statutory rule of merger for foreign judgments, and does not operate to extinguish the underlying claim. The House of Lords, instead, adopted a view expressed by Mr Lawrence Collins (as he then was) in the Law Quarterly Review,³⁰ written in light of the first Court of Appeal decision and arguing that the intention of Parliament, in enacting Section 34, was to do no more than to create a defence, rather than to oust the jurisdiction of the court. Their Lordships observed³¹ that the wording of the section – No proceedings may be brought on a cause of action in respect of which a foreign judgment of the relevant kind has been given – provides a defence to proceedings by a claimant, and does not exclude the jurisdiction of the court in such circumstances. In other words, section 34 only provides an effective statutory defence to reassertion in circumstances where there has not been a waiver, estoppel or contrary agreement. But if section 34 has been the subject of a waiver, estoppel or contrary agreement in a given case, a successful claimant would be free to reassert the same cause of action notwithstanding the res judicata status of the foreign judgment. In these (exceptional) cases, the preclusive effect of the foreign res judicata is defeasible, obliging the court to decide whether a case is one in which no proceedings may be brought, or one in which the unsuccessful party has abandoned the protection afforded by the section.

In Indian Grace, the matter was remitted by the House of Lords to the Admiralty Court, where Clarke J concluded that the defendants had abandoned the protection afforded by section 34, so that the claimants’ proceedings could be brought. But this finding was overturned (both by the Court of Appeal and the House of Lords) such that, in the final result, the claimant did not succeed in showing that the parties had waived the operation of section 34, as by agreeing to bring part of the claim in India while reserving the bulk of the claim for trial in England.

Another point of interpretation given to section 34 by the Indian Grace litigation was that the words "No proceedings may be brought" are to be read as meaning "No proceedings may be brought or continued". The claimants had argued that the English proceedings had not been brought subsequent to the recovery of the judgment in India, but were already under way. The House of Lords held, however, that "where proceedings are continued one can quite naturally describe those proceedings as brought. That construction also gives a sensible and purposive meaning to section 34."³² Of course, that construction also has the effect of turning section 34 into a mechanism for controlling lis alibi pendens, and not simply for enhancing the effect in England of a foreign judgment. But it also makes some sense, in that it is a construction that regards the first res judicata in time as conclusive of any unresolved lis alibi pendens contest.

Perhaps one of the reasons why the litigation in the Indian Grace continued for so long was because of a fundamental misunderstanding as to the appropriate plea. At times the defendants pleaded issue estoppel and the plea in Henderson v Henderson³³ before finally founding their claim squarely on section 34. We shall turn, therefore, to consider the plea of issue estoppel, and then we shall look at the rule in Henderson v Henderson.³⁴

Issue estoppel – where brought about by recognising the judgment at common law and pleading issue estoppel thereon – prevents a party or privy in subsequent proceedings from contradicting an issue that has already been distinctly raised and decided between the same parties or privies. This is because a ‘judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot be raised [again] between the same parties’.³⁵ The rationale for issue estoppel is similar to cause of action estoppel: ‘it is unjust and unreasonable to permit the same issue to be litigated afresh’.³⁶ However, unlike cause of action estoppel, what is relied on with issue estoppel is not the mere fact of a judgement, nor a decision on the substantive cause of action or claim, but a decision on a particular issue.

A particular issue might be decided on a separate occasion as a free-standing issue independent from the main substantive proceedings on a claim. An example would be an issue determined at an interlocutory stage, perhaps on a jurisdictional or procedural matter. More obviously, however, a particular issue is rendered res judicata as part of a final decision on an entire claim:³⁷

In the context of cross-border re-litigation, the plea of issue estoppel was first recognised by the House of Lords in the Carl Zeiss decision in 1967.³⁸ That decision involved an attempt by the defendants in the English proceedings to rely upon an earlier West German judgment containing a conclusion upon a particular issue which the defendants sought to preclude the plaintiff from contradicting in England. That issue was whether the Carl Zeiss Foundation had proper standing to sue as the legal and administrative body that had succeeded the pre-war Carl Zeiss.³⁹

The case is seminal because, for the first time, the House of Lords acknowledged that there was no reason in principle to deny the possibility of an issue estoppel based on a foreign judgement. Lord Wilberforce said:⁴⁰

Three requirements are necessary for a foreign judgement to give rise to an issue estoppel. First, the judgement of the foreign court must be of a court of competent jurisdiction, final and conclusive and on the merits. Secondly, the parties to the English litigation must be the same parties (or the privies) as in the foreign litigation. Thirdly, the issues raised must be identical and must have been necessary for the decision of the foreign court, and not merely collateral. And over all these requirements was cast a general requirement that courts must exercise special caution when allowing a foreign judgment to give rise to a plea of issue estoppel.

It is not difficult to appreciate the reasons for such caution. For instance, it may not be easy to establish the identity of an issue decided by the foreign court: English courts are unlikely to be familiar with the practice and procedure of foreign countries, and the issue may have been determined incidentally or collaterally to the main decision. Similarly, it might be most unjust to prevent a litigant in England from putting forward his case because of a decision in an early case of a trivial character abroad – especially where it may have been difficult to make the case abroad. And, finally, caution should be exercised because how can an English court be sure a foreign court has rendered an issue final and conclusive and on the merits – not least where the issue has been determined separately from the decision on a substantive claim.

Two more recent decisions have considered this problem of foreign judgments giving rise to issue estoppels where the issue in question has been determined separately from the decision on the substantive claim. In The Sennar,⁴¹ a Dutch Court held that a claim against a shipowner for damages in tort could only be brought upon the contract contained in the bill of lading, and hence in accordance with the exclusive jurisdiction clause in favour of Khartoum. The claimants, locked out of the Netherlands and not minded to sue in Khartoum, brought proceedings in England. The House of Lords held that an issue estoppel arose because the Dutch court had decided that Khartoum had exclusive jurisdiction to hear the dispute. In effect, the Dutch Court’s decision on the issue of jurisdiction was successfully relied on to prevent the claimants from contradicting that issue in England, and hence the claimants were locked out of the English courts as well since Khartoum was the appropriate forum.

The decision in Desert Sun Loan Corporation v Hill⁴² completes the development begun in The Sennar. In Desert Sun the claimant sought to enforce an Arizonan judgment in England by way of summary judgment. The defendant, Hill, contended that he had not submitted to the jurisdiction of the Arizona Court and that, as a result, the claimants judgment could not be recognised for the purposes of enforcement. But the claimant fastened upon an earlier interlocutory judgment given against Hill in which the Arizona court had decided that Hill had submitted. The claimant thus argued that this interlocutory judgment gave rise to an issue estoppel, and therefore Hill was prevented from contradicting this finding.

On the facts, the estoppel was not made out. But the majority concluded that issue estoppel could arise from an interlocutory judgement of a foreign court on a procedural and non-substantive issue – provided the issue has been specifically raised before, and finally decided by, the court; and so long as the "special caution" referred to in the Carl Zeiss case has been borne in mind.

The tactical consequences of these more recent decisions may be significant, especially to litigants who wage jurisdictional battles over the venue for litigation. A determination by a foreign court of a jurisdictional issue may well have the effect of driving subsequent litigation to the forum judicially ordained by the former litigation. The tactical advantage gained by procuring a favourable decision as to jurisdiction is precisely that of enabling a litigant to wield the estoppel so as to dislocate other inconvenient proceedings pursued by an opponent. This means that preliminary skirmishes in foreign courts, especially upon jurisdictional issues, may have a greater force and effect outside the immediate context in which they arise.

The rule in Henderson v Henderson and foreign judgments

However, let us turn now to the fourth plea by which to prevent abusive cross-border re-litigation.

The rule in Henderson v Henderson⁴³ is very well known. It requires the parties to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal), once and for all. Except in special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise.

It is important to note that, while the three traditional res judicata pleas stop parties from again litigating previously determined subject-matter, the Henderson rule concerns subject-matter that has not been previously determined and rendered res judicata in the traditional sense. This means that the rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based upon the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits arising out of the same factual subject matter. As such, the mischief is not re-litigation but the bringing of successive actions arising from the same factual matter. For this reason the rule is more properly characterised as a species of the modern doctrine of abuse of process.

But when is it an abuse of process to bring successive actions? And, more particularly, is it ever an abuse of an English court when the first action has been brought before a foreign court?

The House of Lords recently answered the first of these questions in its decision in Johnson v Gore Wood.⁴⁴ Prior to that decision there often prevailed the view that it was an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. This expansive view of the rule had frequently been endorsed by the courts, but sometimes, it seems, without properly appreciating the potentially wide import of the words.

In Johnson v Gore Wood,45 their Lordships made it clear that it is too dogmatic to insist that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily an abuse of process. Rather, the approach should be a broad, merits based assessment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.

Their Lordships also referred to the "special circumstances" exception that is part of the traditional formulation of the Henderson rule, and noted that it is preferable to ask whether in all the circumstances a party’s conduct is an abuse, rather than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.

But what remains to be definitively clarified is how an earlier foreign judgment can be advanced to support a plea that a party is misusing or abusing the process of the English courts by seeking to raise before it a claim, defence or issue which could have been raised in the foreign court. This is not to say the rule does not apply to foreign judgments: indeed, the rule has often been applied to the cross-border context, and Henderson v Henderson⁴⁶ itself was a case in which the party was seeking to litigate in England a matter which was not part of the subject of litigation and adjudication in Newfoundland. But what is not clear is whether the "one bite at the cherry" principle (appropriate, perhaps, in the domestic setting) is qualified in foreign judgment circumstances where, by definition, the parties’ first trip to court was elsewhere than in England, and possibly where this principle may well have been inapplicable, or applied to different effect.

What this suggests is that in the cross-border context, it may be appropriate to have regard to how the foreign court would regard the successive action were it brought before it. Something of this can be seen in the recent Court of Appeal decision of Fennoscandia Ltd v Clarke.⁴⁷ In that case, the claimant (Clarke) brought proceedings against Fennoscandia Ltd in England, claiming a breach of a legal duty. However, Clarke had already brought and lost proceedings against the defendant company in Delaware. So the company defended the English action by arguing that Clarke was raising before the English court a claim that could and should have been raised in Delaware.

What is interesting about the case is that the claimant conceded that the issues raised in England could have been raised in Delaware. But the claimant did not accept that, if raised, those issues would necessarily have been struck out as an abuse of process by the Delaware court. So the claimant argued that unless it could be shown the Delaware court would not have dealt with the issues now being raised in England, it would be wrong to apply the rule in Henderson v Henderson.⁴⁸

Although the Court of Appeal dismissed the argument, what makes the decision striking is precisely the fact that the court simply assumed that a claim not raised abroad ought in principle be precluded in England if, under English law, the Henderson rule would have applied. There was no consideration of whether this result would have been achieved before the foreign court. And yet, the decision points to the need for a "choice-of-preclusive-law" analysis when applying the Henderson rule to the cross-border context. In other words, to what extent should an English court refer to the law of the place of the first set of proceedings to see what its attitude would be to subsequent proceedings in England.

This problem as to which preclusive law ought apply in cases involving foreign judgments – as, indeed, the problem as to whether there lurks a choice of law analysis – raises a myriad of questions. There has been little discussion in the English common law world, arguably due to the fact that the traditional common law judgment recognition rules pre-ordain the preclusive laws of the recognising court. However, there may prove to be greater scope for choice of law arguments in the context of judgments recognised under the Brussels Regulation.

It was mentioned earlier that the res judicata status of a foreign judgment recognised at common law is verified by the analysis that the common law recognition rules impose. This is because there is a correspondence between the common law recognition rules and the criteria by which judgments in English law are verified as res judicata.

However, the process of recognising foreign judgments at common law – precisely because of this correspondence with the English domestic criteria for res judicata – has the consequence of pre-disposing an English court to treat foreign judgments according to the preclusive rules that an English court applies to its own judgment.

By contrast, the process of recognising foreign judgments under the Brussels Regulation is fundamentally different. Foreign judgments thus recognised are not subject to any set of criteria at the recognition stage because recognition is automatic under Article 33.⁴⁹ Nor is it a condition that such judgments must qualify as a res judicata in order to be recognised. Indeed, the Regulation rules do not afford an English recognising court an opportunity to review the judgment at the recognition stage, still less satisfy itself that the judgment meets the English domestic criteria for a res judicata. Accordingly, any assessment of the res judicata status of the judgment by an English court must be made – if it is to be made by the English court at all – independently of the process of recognition under the Regulation and, crucially, after the obligation to give effect to the judgment has been assumed under Article 33.

This is not to say that recognition under the Regulation fails to respect the foreign judgment as res judicata, nor that all manner of judgments thus recognised will generate preclusive effects regardless of their status as res judicata. But because the Regulation severs the link between recognition and res judicata verification, an English recognising court may have greater freedom when considering the preclusive effects of such judgments in England, and the source of the law that determines those effects.

There are two approaches that an English court might take: one, equalisation of the Regulation judgment; the other, extension of the Regulation judgment.

The equalisation approach says that a Regulation judgment, once recognised, takes effect as if it were the equal of a judgment of the Court in which it is registered. This approach equalises the preclusive effects of the foreign judgment with the ‘effects’ that local, domestic judgments have before the recognising court. The traditional common law approach to recognition is to equalise foreign judgments with domestic judgments – indeed, that is why recognition at common law is simply a process of ensuring that the foreign judgment amounts to a res judicata as understood by English domestic law.

By contrast, the extension approach argues that recognition under Article 33 means not just recognition of the formal pronouncement but also recognition of the preclusive effects that the judgment has in the State in which it was delivered. Recognition involves, therefore, extending to the recognising court the greater or lesser effects which the judgment would have before the original Court in respect of claims or issues determined and persons affected.

It should be noted that the doctrine of extension of effects can be likened to the full faith and credit clause of the United States Constitution, which requires the judgments of each State to have the same force and effect throughout the other states of the Union as they have in their own State, regardless of whether that means giving greater effect to a sister-State judgment than a local judgment would have. The interesting question, therefore, is to ask whether the purpose of Article 33 is to give to full faith and credit to judgments recognised under the Brussels Regulation.

But on the question of which approach – equalisation or extension – ought to apply when considering the preclusive effects of foreign judgments recognised under the Regulation, there appears to be no clear answer. Certainly the rules themselves do not assist in this regard. And as for the Official Reports: Schlosser appears to suggest that this is a matter for the national law of the recognising Court⁵⁰ while Jenard more clearly favours the doctrine of extension of effects: "recognition must have the result of conferring on judgments the authority and effectiveness accorded to them in the State in which they were given."⁵¹

In the few reported English cases regarding the preclusive effects of such judgments once recognised in England, the unstated assumption has been that they have the same preclusive effect as an English judgment. In other words, English courts have continued to equalise these judgments in just the same way they equalise judgments recognised at common law. The result is that the preclusive pleas known to English law are activated by Brussels Regulation judgments in England irrespective of whether such judgments would have that effect at home.

As regards the plea of cause of action estoppel, equalisation was the approach taken by the Court of Appeal in Berkeley Administration Inc v McLellan.⁵² In that case, a French judgment was recognised under (what was then) Article 26 of the Brussels Convention. Lord Justice Hobhouse observed that Article 26 enabled recognition not only for the purpose of enforcement, but also for the purposes of cause of action estoppel and issue estoppel.⁵³ However, the court applied the English rules of cause of action estoppel, and made no reference to whether the French judgment, under French law, would have the effect which it was sought to give it in England.

Admittedly, with cause of action estoppel, little turns on this in practice because either the cause of action has been determined to exist or not, and the result is the same whether you equalise or extend that determination.

However, in the context of cause of action preclusion – and certainly in the context of the other cause of action preclusive plea, the plea of "former recovery" – the decision of the ECJ in De Wolf v Cox⁵⁴ appears implicitly to favour the extension of effects approach over the equalisation of effects approach. De Wolf stands for the sensible proposition that a Claimant who has obtained in one contracting State a judgment which is enforceable in another contracting State cannot bring an ordinary action in the latter State against the same Defendant in respect of the same cause of action.

All of this is to suggest that if Article 33 obliges anything, it is that a decision upon an entire cause of action ought to be recognised and given effect in accordance with the decision of the original judgment-rendering court – that is, the extension of effects approach. In which case, both cause of action estoppel and former recovery – the two sides to the one coin of cause of action preclusion – are effects which inure in a judgment according to the law of the place where the judgment was given, and are not effects to be attributed by the law of the place where the judgment is recognised.

But if, under Article 33, the preclusive effects of a judgment on an entire cause of action are to be determined by the law of the place where the judgment was given, what about judgments involving something less than an entire cause of action? What about issue estoppel?

If an extension approach were to apply to cases involving issue estoppel, an English Court would have to grapple with the perhaps complex issue preclusive laws that apply in the law of the place where the judgment was given. But if an equalisation approach were followed, an English court would be free to apply its own law of issue estoppel, and so accord to the Regulation judgment preclusive effects known to English law but not necessarily known to the law of the place where the judgment was given.

The point is not merely academic. Most countries outside of the Anglo-American legal tradition do not treat judgments as precluding the re-litigation of just any issue that happens to have been litigated and decided in an earlier action. For this reason, some commentators have argued that the effect of (what is now) Article 33 is to provide that a recognisable judgment must be given the same effect as regards issue estoppel as it would have in the original country.⁵⁵ They support their argument by suggesting that Article 33 is like the full faith and credit clause in the United States constitution.

But an analysis of the operation of the US full faith and credit clause does not support their argument.⁵⁶ True, the US full faith and credit clause and statute require every court to give a sister state judgment at least the claim preclusive effect that the judgment would have by the law of the place where the judgment was given. But this analysis does not apply to issue preclusion; for the jurisprudence on the point suggests that a recognising court ought to be free to apply its own rules of issue preclusion without referring to the law of the place where the judgment was given.

Accordingly – and since the Brussels Regulation is silent on the question – there is nothing to prevent an English Court applying its own principles of issue estoppel to a judgment which otherwise qualifies for recognition. All the more, since issue estoppel is a principle of English evidence or procedure and, as such, can be said to operate independently of the Brussels Regulation rules.

Just as the Regulation makes no provision for issue preclusion, so, too, the Regulation is silent as to abuse of process. The case of Fennoscandia Ltd v Clarke⁵⁷ – which we referred to earlier – serves as a useful example. Suppose the facts of the case involved not Delaware but France. The claimant, having suffered judgment against him in France, commences subsequent proceedings on related subject matter in England. Here we no longer have a lis alibi pendens situation so Articles 27 and 28 will not help the Defendant. Instead, the Defendant pleads the French judgment. Given that the English proceedings do not amount to re-litigation in the res judicata sense, the question is whether the English Court should dismiss the proceedings as an abuse of process. This requires, as we have seen, an analysis of whether the subject matter in England should properly have been determined by the French judgment, which has now been automatically recognised by virtue of Article 33. Should the English court refer to the French law of abuse of process (if there is one) in such circumstances? It would seem the recent decision in Johnson v Gore Wood⁵⁸ leaves it nicely as a matter of discretion for the English courts in the circumstances. But that said, it is arguable that part of that discretion ought to include an assessment of the preclusive law which would be applied by the foreign court were the subsequent proceedings before it.

So: How do we utilise an earlier obtained judgment from country X to prevent abusive re-litigation in country Y? The answer lies in that dusty part of the law – the doctrine of res judicata; and it requires more than just a passing acquaintance with the various pleas of estoppel per rem judicatam, former recovery and abuse of process. As more and more legal rights are being determined by foreign courts, and these judgments brought to England and claimed to have some effect here as a result, so too it will be increasingly necessary to appreciate how the res judicata status of the foreign judgment can be utilised to prevent the commencement or continuance of abusive re-litigation in England.

This article is based upon a public lecture given to the International Law Association (London Branch) on 5 December 2001.

© Herbert Smith 2002

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