High Court of Justice in Northern Ireland Chancery Division Decisions

Ulster Bank Ltd v. Fisher & Fisher [1998] NICh 7; [1999] NI 68 (21st December, 1998)

1997 No 258






Delivered:
21 December 1998

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

GIRJ2657

CHANCERY DIVISION

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BETWEEN

ULSTER BANK LIMITED

Plaintiff;

AND

FERGUS HANNA BELL, JOHN H CAVAN, MICHAEL J GILFEDDER,

MARK KINKAID AND BRIAN IVESTON PRACTISING AS FISHER & FISHER

Defendants.

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GIRVAN J

JUDGMENT

INTRODUCTION

1. By order of Master Ellison made on consent on 7 September 1998 it was ordered that the following questions or issues be tried as preliminary issues in the action namely:

"(a) whether the matters raised in the Statement of Claim are Res Judicata between the parties; or

(b) whether as a matter of public policy the Plaintiff is estopped and precluded from relying on the claims referred to in the Statement of Claim which it had an opportunity of putting before the court in Action 1995 No 642 (sic) between the same parties and which it chose not to put forward."

2. The preliminary issue came on for hearing before me on 20 November 1998. On the hearing of the matter Mr Thompson QC appeared with Mr Marrinan on behalf of the defendants ("the Solicitors") who were in effect the moving party. Mr Horner QC appeared with Mr Devlin on behalf of the plaintiff ("the Bank"). I am indebted to counsel who presented their arguments with conspicuous clarity and succinctness and whose skeleton arguments were most helpful to the court.

BACKGROUND TO THE MATTER

3. The Bank in its Statement of Claim alleges that one Vincenzo di Brita ("the customer") was a customer of the Bank and a client of the Solicitors. He was substantially indebted to the Bank. He owned a house together with an adjoining site of land at 243, Bangor Road, Holywood, County Down. The house was mortgaged to a third party. On 22 February 1991 the Solicitors gave to the Bank an undertaking to hold the title documents in respect of the lands beside the house and if the sale thereof which appeared to be about to take place at that time did not proceed the Solicitors undertook to lodge the documents of title with the Bank. Subsequently on 26 July 1991 the Solicitors undertook to lodge the net proceeds of sale if and when the site was sold and pending finalisation of the sale of the proposed site to hold the documents of title on trust for the Bank. The Bank alleges that on foot of the undertakings and induced thereby it afforded substantial facilities to the customer and it alleges that there was a collateral contract between the Bank and Solicitors whereby the Solicitors agreed to lodge the net proceeds of sale of the lands if and when sold and in the meantime hold the documents of title in trust for the Bank in consideration of the Bank affording credit facilities to the customer. The Bank also asserts a claim in negligence against the Solicitors alleging that the Solicitors negligently handed over the documents of title to another firm of solicitors and that the lands were sold to another party without the sale proceeds being handed over to the Bank. By paragraph 15 of the Amended Defence the Solicitors made the following plea:

"The Defendants say that the matters raised in the Statement of Claim are res judicata between the parties and will, furthermore, object in point of law that as a matter of public policy the Plaintiff is estopped and precluded from relying on the claims referred to in the Statement of Claim which it had had an opportunity of putting before the Court in Action 1995 No 642 (Ulster Bank Ltd v Fergus Hanna Bell, John H Cavan, Michael J Gilfedder, Mark Kinkaid and Brian Iveston practising as Fisher & Fisher) and which it chose not to put forward.

In its reply the Bank denied that it was estopped or precluded from relying on the claims raised in the Statement of Claim and the Bank asserted in paragraph 8 of the Reply:

"Further and in the alternative the Plaintiff relies upon the special circumstances arising by virtue of the nature, function and purpose of the previous proceedings herein between the parties namely those constituted by Originating Notice of Motion 1995 No 642 which are sufficient to enable this action to proceed."

4. The reference in the pleadings to the previous proceedings is a reference to proceedings brought by way of Originating Notice of Motion in this Division in which the Bank sought an order against the Solicitors requiring the Solicitors to lodge the documents of title in respect of the site adjacent to 243 Bangor Road, Holywood, (being the land referred to in the statement of claim as the site adjoining the customer's house) and by additional claim added by way of amendment in the Notice of Motion an order requiring the Solicitors to lodge the net proceeds of sale of the said site with the Bank.

5. The originating Notice of Motion came on for hearing before Campbell J (as he then was) who held that the Solicitors had fulfilled their undertaking as to the documents of title but the undertaking contained in the letter of 26 July 1991 to lodge the net proceeds of sale had not been complied with. He held that while failure to implement a solicitor's undertaking was prima facie to be regarded as misconduct on the part of the solicitor even though he had been guilty of no dishonourable conduct, in the circumstances of this case there was room for a misunderstanding on the part of the solicitors and he declined to exercise his discretion to make an order for compensation against the Solicitors being an order of a disciplinary nature.

THE PARTIES' ARGUMENTS

6. Mr Thompson on behalf of the Solicitors contended that the new claim in the present proceedings was one which could and should have been raised in the earlier proceedings. Relying on the "principle" stated by Wigram VC in Henderson v Henderson (1843) Hare 100 ("Henderson") the party who could have raised a point at earlier proceedings is precluded from raising that point in later proceedings unless it was a special case. He argued that the present case was not a special case. He relied on Talbot v Berkshire County Council [1993] 4 All ER 9 in which Stuart-Smith LJ gave examples of special cases (ignorance of the plaintiff or unconscionable conduct of the defendant). It was open to the Bank to have issued a writ and pleaded breach of collateral contract and negligence and claimed an order for compensation under the inherent jurisdiction of the court as an alternative head of claim. This would have put the Bank's full case before the court and avoided duplication of proceedings and double litigation over effectively the same subject matter namely the Solicitors' obligations arising on foot of the undertakings. The result of Campbell J's ruling was to create a partial issue estoppel (on the issue that the Solicitors had complied with their undertaking to hold and deliver the documents of title and on the issue that the passing of the copy title deeds by the Solicitors to the Bank's Solicitors did not discharge the obligation to lodge the net proceeds of sale of land if and when sold). The Solicitors would wish to reargue the latter point and the Bank might wish to reargue the former but, Mr Thompson argued, it would make a mockery of the principle that there should be an end to litigation if either course were to be permitted. That consideration underpinned the fact that the plaintiff had had its chance on identical facts and could not now re-litigate the same matters. Mr Horner on behalf of the Bank argued that Campbell J had decided that there had been a breach of the July 1991 undertaking by not handing over the net proceeds of sale and that in the circumstances the court would not exercise its discretion to award compensation because the Solicitors had not been guilty of conduct meriting such an order. In coming to the latter decision the court was exercising its inherent supervisory jurisdiction over Solicitors as officers of the court and the court was not deciding, and in such proceedings could not decide, any issue to relating to breach of contract, negligence or misrepresentation on the part of the Solicitors. There was a finding of a breach of the undertaking of July 1991 but that was the only issue which had been decided between the parties.

7. When a plaintiff has a separate cause of action (even if it arises out of the same transaction) as distinct from separate remedies for one cause of action the plaintiff is under no duty to join all causes of action in the first proceedings Mr Horner referred to Thompson v Ross [1943] NZLR 712, Duedue v Yiboe [1961] 1 WLR 1040 and Re Koenigsberg [1949] 1 All ER 804.

8. Mr Horner referred to Yat Tun Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 481 ("Yat Tun") and argued that Lord Kilbrandon's dictum that it is an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings was wider than appropriate and wider than the authorities relied upon by Lord Kilbrandon in support of proposition. The true basis of the doctrine was abuse of process (see Lord Wilberforce in Brisbane City Council v Attorney General for Queensland [1978] 3 All ER 30). The decision in Talbot v Berkshire County Council [1993] 4 All ER 9, in so far as it relied on Lord Kilbrandon's dictum, conflicted with Shaw v Sloan [1982] NI 393 and Davidson v North Down Quarries Ltd [1988] 8 NIJB 54. Mr Horner also relied on the Australian case of Port of Melbourne Authority v Anshun Property Ltd [1981] 147 CLR 589 ("Anshun") in which the High Court of Australia based the abuse of process principle in this context on the need to avoid conflicting decisions. A decision that the Solicitors were in breach of contract or negligent would not be in conflict with the decision of Campbell J since in the summary procedure, properly adopted by the Bank, the court could not, should not and did not decide issues of breach of contract or negligence. If Mr Thompson's argument were correct Mr Horner argued it would destroy a quick and inexpensive summary procedure since the plaintiff would effectively have to issue a writ to make all possible alternative claims.

RES JUDICATA

9. English and Northern Ireland law in common with many other legal systems, including Roman law, recognise the importance of ensuring finality litigation (rei publicae interest ut sit finis litium), of protecting parties from multiple claims in relation to the same dispute (nemo debet bis vexari) and of avoiding conflicting decisions between courts. While the general body of law giving effect to these principles in English law is generally and loosely referred to as the doctrine of "Res Judicata" there are in fact a number of different doctrines in play which it is important on occasions to distinguish. Firstly, there is the doctrine of res judicata estoppel which includes cause of action estoppel and issue estoppel. Secondly, there is the doctrine of former recovery or merger in judgment. Thirdly, there is a principle sometimes called the "extended doctrine of res judicata" and sometimes referred to as "implied issue estoppel" based upon the court's inherent jurisdiction to control its own proceedings.

RES JUDICATA ESTOPPEL

10. As pointed out in Spencer Bower Turner and Handley "The Doctrine of Res Judicata" 3rd Edition ("Spencer Bower") at paragraph 176:

"It is of the essence of all estoppels that there be two statements exhibiting an essential contradiction and the result of the doctrine is that the earlier is taken as truth. There can be no res judicata estoppel unless a substantial discrepancy exists between the res judicata and the case set up in the subsequent proceedings and no such discrepancy can exist unless they relate to the same subject matter."

11. The party relying on the estoppel must prove identity of subject matter, that is that his opponent is seeking to reargue some question of law or fact which has been the subject of a final decision between the same parties in a court of competent jurisdiction.

"Cause of action estoppel" is an estoppel which "prevents a party from asserting or denying as against the other party the existence of a particular cause of action the existence or non-existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties" (per Diplock LJ in Thoday v Thoday [1964] P 181.)

12. The classic statement of the principle of issue estoppel which has never been bettered in subsequent cases is to be found in the judgment of Coleridge J in R v Hartington, Middle Quarter Inhabitants (1855) 4 E&B 780 at 794:

"The judgment concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision itself, though not then directly the point at issue" and is "conclusive evidence not merely of the facts directly decided, but of those facts which are ... necessary steps in the decision", in the sense that they are "so cardinal to it that, without them, it cannot stand."

13. Unless they are necessary steps the rule fails and they are collateral facts.

14. In the present case, as Mr Thompson recognised, it could not be said that the decision of Campbell J gives rise to any cause of action estoppel or issue estoppel precluding the Bank from asserting a claim based on breach of contract, negligence or misrepresentation. Campbell J was in the earlier proceedings asked to determine the question whether the court in the exercise of its disciplinary supervisory jurisdiction over the solicitor should make an order for the payment of compensation. As Campbell J pointed out:

"The compensatory jurisdiction retains a disciplinary slant and the cases show that it is not available in cases of mistake, error of judgment or mere negligence. It is only available where the conduct of the solicitor is inexcusable and such as to merit reproof. In Myers v Elman [1940] AC 280, 292 Lord Maugham put it as "serious dereliction of duty". Lord Atkin spoke of "gross negligence" and Lord Wright said that "gross neglect or inaccuracy" may suffice."

15. As is clear from this passage the court was not be concerned with the issue whether the Solicitors were guilty of negligence or in breach of contract and finding that the solicitors were not guilty of inexcusable conduct does not in any way determine the question whether or not there was a collateral contract between the Solicitors and the Bank or a breach of it.

FORMER RECOVERY

16. The doctrine of former recovery or merger in judgment is based on the principle that any person in whose favour a judicial tribunal of competent jurisdiction has pronounced a final judgment civil or criminal is precluded from afterwards recovering before any tribunal a second judgment against the same party on the same cause of action or a second conviction for the same offence. A plea of this nature (former recovery in civil cases and autrefois acquit in criminal) differs from res judicata estoppel in two ways. Firstly, the latter prohibits contradiction, the former reassertion. Secondly, in the case of estoppel the proposition of law or finding of fact declared by or necessarily involved in the res judicata cannot be controverted. In the case of former recovery what is not allowed is a second action for relief previously granted or refused. In the case of former recovery the theory expounded in Coke's time was that any cause of action which results in a judgment is merged in the judgment and disappears as an independent entity, the judgment being of a higher nature than the cause of action (transit in rem judicatam).

17. It could not be said that the Bank by the present action is seeking to recover a second or inconsistent judgment against the Solicitors on the same cause of action. Thus the Solicitors could not set up a plea of former recovery as a bar to the present action.

THE EXTENDED DOCTRINE OF RES JUDICATA

18. The court as part of its inherent jurisdiction to control its own proceedings may strike out as an abuse of process proceedings which the court considers should not proceed on a wider view of res judicata and on occasions the court will strike out as an abuse of process proceedings where defences of former recovery (merger), cause of action estoppel and issue estoppel are not strictly available.

Henderson (1843) 3 Hare 100 at 114-5 is often cited by counsel and on occasions by courts as if it were the fons et origo of the extended doctrine of res judicata although it was in fact a case of cause of action estoppel, the court in that case concluding that a decree on further consideration of an account was final and covered all debit and credit items which could or should have been brought forward. The conclusion in this regard appears to be obvious it being axiomatic that when an account is being taken the accounting parties are bound to bring forward all points which they wish to be taken into account in arriving at the final balance due on the taking of the account. The relevant passage frequently relied upon is that of Wigram VC at 114-115:

"I believe I state the rule of the court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time."

19. This elegantly worded dictum calls to mind the comment of Benjamin Cardozo in "Law and Literature" (1931) "For quotable good things, for pregnant aphorisms, for touchstones of ready application, the opinions of the English judges are a mine of instruction and a treasury of joy."

20. There are obvious dangers in facile recourse to "quotable good things" for just as the devil may quote the scriptures by taking verses out of context, so in the law it is always necessary to take judicial dicta in their proper context. Dorothy Sayers' witticism "I always have a quotation for everything - it saves original thought" contains a truth that those who use quotations should bear in mind Wigram VC's apposite remarks in the context of Henderson have been loosely relied on in some subsequent decisions as the foundation for a wide-sweeping principle which Wigram VC is quite unlikely to ever had in mind. Subsequently and without reference to Henderson attempts to re-litigate issues determined in earlier proceedings which had not been res judicata were held to be an abuse of process. Thus, for example, in Montgomery v Russell (1894) 11 TLR 112 the plaintiff having failed in an action for libel in respect of comments on his book, brought subsequent proceedings against the defendants who republished articles from other papers commenting on the trial. The action for libel based on the republications was dismissed as an abuse of process. In Stevenson v Garnett [1898] 1 QB 677 the court considered that there was no res judicata because in that case the order in the County Court was interlocutory but nevertheless the proceedings in the High Court seeking an inconsistent order were held to be an abuse of process. A L Smith LJ stated:

"The court ought to be slow to strike out a statement of claim or defence and to dismiss the action as frivolous and vexatious, yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has already been decided by a competent court." (See also Collins LJ in the same case).

21. In those cases the court struck out proceedings in which the parties were seeking to re-litigate essentially the same point of law or question that had been previously decided. Similarly in Greenhalgh v Mallard [1947] 2 All ER 255 the plaintiff having failed in an action for conspiracy to injure (a conspiracy for an unlawful purpose) then brought an action on the same facts for conspiracy to injure by unlawful means. Somervell LJ held that a given set of facts gave rise to only one action for conspiracy and the second action was res judicata. Referring to Henderson he said:

"Res judicata for this purpose is not confined to the issues which the court has actually being asked to decide but ... covers issues ... which are so clearly part of the subject matter of the litigation, so clearly could have been raised that it would be an abuse of process for the court to allow a new proceeding to be started in respect of them."

22. He thus held that the test under Henderson whether a point which had not been raised properly belonged to the subject of litigation was whether it would be an abuse of process to raise it later. Formulated as a test this would appear to be circular and of little practical utility as pointed out by the majority decision in the Anshun decision at 602.

In Wright v Bennett [1948] 1 All ER 267 the plaintiff having failed in an action for fraud brought a second action alleging a fraudulent conspiracy Tucker LJ did not consider it necessary to express a view on res judicata, considering that the court should exercise its inherent jurisdiction to prevent the defendants being called on in substance and in reality to meet "the same old charge."

In Yat Tun [1975] AC 581 the Bank counterclaimed against the appellant in earlier litigation for $45,231.97 as a balance due under a mortgage and recovered practically the full amount. The counterclaim assumed the regularity of a sale of property which the Bank under its mortgage had effected. Subsequently the mortgagor issued fresh proceedings claiming a declaration that the sale was fraudulent and in breach of duty and sought compensation for the loss. Lord Kilbrandon delivering the advice of the Privy Counsel held that while the defence of res judicata was not available since there had not been any formal repudiation of the plea raised by the appellant and the purchaser had not been a party to the earlier proceedings, the new claim by the mortgagor was barred because it was clearly a matter necessary and proper to be litigated at the same time as the other issues. Lord Kilbrandon went on to state:

"There is a wider sense in which the (Henderson) doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings."

23. This wide dictum (which went beyond what was required for the decision in that case) built on the dictum of Henderson v Henderson and may appear to lay down a wide principle of general application. If it does, then the width of Lord Kilbrandon's dictum has been cogently criticised not least in Spencer Bower at 446. Firstly, Yat Tun was in fact a case of cause of action estoppel. The new proceedings claimed in substance an account to include the mortgagor's alleged loss as a result of wilful neglect and default by the Bank and the conduct of the sale was such that there was a balance due to the mortgagor of some $900,000, which would have been wholly inconsistent with the finding in the earlier proceedings. Secondly, the statement went beyond the previous authorities (see the majority judgment in Anshun at 601-602). Thirdly, Lord Kilbrandon appears to have relied on the judgment of first instance in Re Koenigsberg [1948] Ch 727 in which the judge at first instance had based his decision on the failure of the parties to an originating summons to challenge an assumption on the evidence of the trustees. The case in fact was reversed in the Court of Appeal on the ground that the evidence was not fundamental to the question propounded. Significantly Evershed LJ rejected the view that it was the duty of the parties to raise all points which appeared to emerge upon an examination of the application made and the evidence filed in support. In the context of that case Somervell LJ stated:

"When a trustee or anyone takes out an originating summons, he can make quite clear to those whom he has to bring before the court what point or points he wants decided and it is for the defendants to raise and take points and file evidence which deals with the points which in the originating summons are put before the court for decision. I do not think they are called on to raise or deal with other and quite different points."

24. In the Australian decision in Anshun to which reference has already been made the facts were that the appellant Authority hired a crane to the respondent on terms that the hirer indemnified it against any claims arising out of its use. A workman injured by the negligent operation of the crane sued the Authority and the hirer. Each sought contribution though the Authority did not rely on its indemnity agreement. Subsequently responsibility was apportioned 90% to the Authority and 10% to the hirer. The Authority then sought to bring proceedings claiming an indemnity. Gibbs CJ, Mason and Archer JJ found that neither cause of action or issue estoppel applied but the judgment sought would be inconsistent with the judgment in the former action since the indemnity would have been a defence to the hirer's claim for contribution.

25. Referring to Lord Kilbrandon's dictum in Yat Tun referring to Henderson the judges pointed out:

"However in Yat Tun the principle in Henderson was taken too far. Lord Kilbrandon spoke of it becoming an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. As we have seen the statement was not supported by authority. And if we are to discard the traditional statement of principle because it was linked to the rules of common law pleading, there is no reason for rejecting the powerful arguments based on considerations of convenience and justice which were associated with it."

They went on:

"The abuse of process test is not one of great utility and its utility is no more evident when it is applied to a plaintiff's new proceeding which is said to be estopped because the plaintiff omitted to plead a defence in an earlier action.

In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence of the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect we would need to record that there are a variety of circumstances some referred to in the earlier cases why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings."

(Emphasis added).

26. Mr Thompson relied heavily on Talbot v Berkshire County Council [1993] 4 All ER 9. In that case the plaintiff and his passenger B were seriously injured when the car driven by the plaintiff hit a tree. B issued a writ against the plaintiff who joined the road authority alleging negligence and nuisance. The notice was confined to a contribution as between joint tortfeasors and did not include a claim for damages in respect of the plaintiff's injuries. B subsequently joined the highway authority as a second defendant. The primary limitation period expired on 27 October 1997 by which date no claim had been issued by the plaintiff in respect of the damages for personal injuries. At the trial of the action B succeeded in full and the court portioned the blame two-thirds against the plaintiff and one third against the road authority. Subsequently the plaintiff issued a writ against the highway authority. On the question whether the plaintiff was barred by the doctrine of res judicata or whether there were special circumstances to permit the action to be pursued it was held that the principle that the plaintiff was barred by cause of action estoppel from pursuing a claim which could have been litigated at the same time as proceedings brought by a co-plaintiff having the same cause of action against the same defendant applied to personal injuries litigation. On the facts the plaintiff's personal injury claim could have been brought at the time of B's action either by being included in the original third party notice issued against the highway authority or by being started by a separate Writ which could have been consolidated with or ordered to be tried with B's action or by the amendment of the third party proceedings at any time before or perhaps even during the trial to include the plaintiff's claim, notwithstanding that it was statute barred since it arose out of the same or substantially the same facts as the cause of action in respect of which relief was already claimed, namely contribution or indemnity in respect of the claim. The court held that there were no special circumstances justifying the bringing of fresh proceedings. Stuart-Smith LJ at 15 states:

"In my judgment there is no reason why the rule in Henderson v Henderson should not apply in personal injury actions. Indeed there is every reason why it should. It is the salutary rule. It avoids unnecessary proceedings involving expense to the parties and waste of court time which could be available to others; it prevents stale claims being brought long after the event, which is the bane of this type of litigation; it enables the defendant to know the extent of his potential liability in respect of any one event; this is important for insurance companies who have to make provision for claims and it may also effect their conduct of negotiations, the defence and any question of appeal.

(Counsel) submitted that the rule should be limited to those cases where part points could have been but were not, taken in relation to particular cause of action and defence. In my judgment there is no warrant for so limiting it. In Yat Tun Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 the cause of action in the second action was different from the plaintiff's claim in the first action but it could have been raised by way of defence to counterclaim to the bank's counterclaim in the first action. It was accordingly not maintainable. Such a limitation would substantially emasculate the rule. Moreover there is a safeguard to prevent injustice in that the court will not apply the rule in its full rigour if there are special circumstances why it should not do so."

27. The decision in Talbot v Berkshire County Council, if it goes so far as to decide a wide "rule" such as that stated by Stuart-Smith LJ rather than being a decision on its own particular facts, is not supported by earlier authorities such as Re Koenigsberg. There is indeed a substantial body of case law to the contrary. Thus, it has been held that a judgment in trespass is not a bar to an action in conversion (Lacon v Barnard (1626) Cro.Car 35.) Judgment for assault and false imprisonment is not a bar to an action for malicious prosecution (Guest v Warren (1854) 9 Exchequer 378 at 383.) Judgment for the plaintiff in replevin was no bar to an action for trespass to the land on which the goods were received (Gibbs v Crookshank [1873] LR 8 CP 454.) Judgment for damages to the plaintiff's cab did not bar an action for his personal injuries (Brunsden v Humphrey [1884] 14 QBD 141.) This latter decision has been the subject matter of criticism and has not been followed in Canada or the United States. It was approved by Lord Pearce in Cartledge v E Jopley and Sons Ltd [1963] AC 758. In Davidson v North Down Quarries Ltd [1988] 8 NIJB Nicholson J (as he then was) having analysed the authorities held that Brunsden v Humphrey had survived for over 100 years in this jurisdiction and was correctly decided in his view. In Talbot v Berkshire County Council Stuart-Smith J pointed out that Henderson v Henderson appeared to have been to have escaped attention in the field of personal injury litigation and that Brunsden v Humphrey might have been differently decided if Henderson had been cited. Having regard to the limited context in which Wigram VC was speaking I respectfully venture to doubt whether it would have led to a different outcome even if cited in Brunsden v Humphrey.

In Barrow v Bankside Agency Ltd [1996] 1 All ER 981 in the context of the Lloyds litigation the court did not apply the approach adopted in Talbot in the circumstances of that case.

DRAWING CONCLUSIONS FROM THE AUTHORITIES

28. It cannot be said that the authorities on the question of the so-called wider principle of res judicata speak with one voice or that it is possible to distil an entirely coherent set of principles from the authorities. A number of conclusions can, however, be drawn with some confidence from the case law.

(1) The extended doctrine is based on the court's inherent jurisdiction to prevent abuse of its process (see in particular Lord Wilberforce in Brisbane City Council v Attorney General of Queensland [1979] AC 411 at 425 approving Somervell LJ in Greenhalgh v Mallard [1947] 2 All ER 255).

(2) As in any case of alleged abuse of process the court will not lightly strike out proceedings as an abuse of process in this field (see for example A L Smith LJ in Stevenson v Garnett [1898] 1 QB 677 cited above). Otherwise there would be a danger of a party being shut out from bringing forward a genuine subject of litigation.

(3) The categories of abuse of process are not closed and it is not possible or appropriate to definitively define the circumstances in which the court will strike out as an abuse of process (see Lord Diplock in Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536.)

(4) The requirements of issue estoppel proper are:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and

(3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies (see Lord Guest in Carl Zeiss Stiftung v Rayner v Keller Ltd No 2 [1967] 1 AC 853 at 935 A.

Lord Lowry in Shaw v Sloan [1982] NI 393 at 397 with his customary insight pointed out:

"The entire corpus of authority on issue estoppel is based on the theory that it is not an abuse of process to re-litigate a point where any of the three requirements of the doctrine is missing."

29. It is salutary to bear that comment in mind when approaching any question of whether proceedings should be struck out as an abuse of process in this field.

(5) The court will strike out proceedings as an abuse if the second set of proceedings are in effect an attempt to re-litigate the same or essentially the same issue that was decided in previous proceedings ("the same old charge" in the words of Tucker LJ). This will include issues which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be unjust to permit a new proceeding to be started in respect of the matter.

(6) Where the judgment sought by the party bringing the fresh proceedings would conflict with or be inconsistent with or involve a collateral attack on the correctness of the previous judgment then the second proceedings would be an abuse of process (see Anshun and Stevenson v Garnett [1898] 1 QB 672 and Hunter v Chief Constable of West Midlands Police [1982] AC 529.) Indeed Spencer Bower suggests that the extended doctrine does not prevent a party bringing forward in later litigation a cause of action not previously adjudicated upon provided it is not substantially the same as one that has been unless success in the new proceedings would result in inconsistent judgments. For my own part I am not convinced that the extended doctrine is quite so limited.

(7) If the later proceedings can be seen to be without merit in the light of an earlier decision a fortiori where the parties are the same, they will be struck out as an abuse of process (see Reichel v McGrath [1889] 14 AC 665, Montgomery v Russell [1894] 11 TLR 112.)

(8) Justice and fair play between the parties must represent an underlying principle of the extended doctrine of res judicata. While in seeking to prevent abuse of its process the court is exercising a form of discipline over the parties to litigation, the court's procedural rules and principles are themselves always aimed at the doing of justice between the parties.

30. In the present proceedings the judgment sought by the Bank in the Statement of Claim is in no way inconsistent with the judgment or order of Campbell J. The claim does not seek to re-litigate the same or essentially the same issue which fell to be and was determined in the earlier proceedings, the new proceedings raising distinct issues which could not be raised or determined in those earlier proceedings. Nothing in the previous decision would lead to the conclusion that the Bank's present claim is without merit.

31. As Mr Thompson demonstrated in his submissions it is possible from Lord Kilbrandon's dictum in Yat and from Talbot v Berkshire County Council to argue that the trend of modern authorities is towards the evolution of a wider principle namely that a litigant faced with a particular factual scenario giving rise to a claim to be asserted in litigation should address all the possible heads of claim and causes of action inherent in that scenario and and bring an exhaustive set of proceedings against all the potential defendants and thereby avoid the possibility of multiplication proceedings against those defendants. In the present case, thus, the Bank was asserting that the Solicitors had breached their undertaking and its claims against the Solicitors might have been formulated on the alternative grounds of reliance on the court's inherent to discipline a jurisdiction and/or on the grounds of breach of contract and/or negligence. Since the Bank could have foreseen the possible need to sue on the alternative grounds of contract and negligence, it is argued, it should have pleaded those claims in the alternative and this would have avoided the Solicitors facing two sets of proceedings when one action would have sufficed.

32. However, the summary procedure adopted in this case by the Bank followed commonly accepted practice. The case-law in this field has recognised the utility of proceeding in that way with the parties being left to their common law remedies if the court in the exercise of its supervisory discretion declines to make a compensation order. Thus as stated by Kerr LJ in Udall v Capri Lighting [1988] 1 QB 907 at 924:

"Since the purpose of the procedure is disciplinary, being designed to ensure a high standard of conduct on the part of solicitors, an order for enforcement of the undertaking or for compensation for its non-performance will not necessarily follow as a matter of course. Before making such an order the court will have to be satisfied that by failing to perform the undertaking the solicitor has been guilty of professional misconduct or a serious dereliction of professional duty. If it is not satisfied about this then it seems to me that it must still be open to the court to decline to make any order and to hold that the matter must proceed by action, if at all, on the ground that the circumstances do not warrant an order of a disciplinary nature against an officer of the court."

If Talbot is correctly decided (and I respectfully venture to doubt whether the width of decision can be supported) the present case is a legitimately recognised exception to the principle therein stated.

33. Wigram VC in his dictum recognised that there were special circumstances in which his dictum would not apply. Were it necessary for me to do so, I would hold that there would be special reason to permit the present proceedings to continue. The decision and order in the former proceedings did not address the main issues to be addressed in this present action, namely whether there had been negligence or breach of any collateral contract. The courts have recognised that proceedings under the disciplinary inherent jurisdiction of the court and common law proceedings are separate and distinct and can be pursued separately. Campbell J having quoted the relevant passage from Kerr LJ's judgment in Udall v Capri Lighting Company declined to exercise the court's discretion to make an order for compensation and by implication appears to have recognised that the plaintiff was entitled to proceed by action. Kerr LJ's judgment recognises the special nature of the summary procedure and recognised that there is nothing unjust or unfair in leaving parties to bring fresh proceedings where the court declines to exercise its jurisdiction on the summary application. The logic of Mr Thompson's argument would be to require either the bringing of parallel common law proceedings which would have to wait the outcome of the summary procedure (and one wonders what advantage flows from that) or the bringing of proceedings by plenary action including a claim for relief under the inherent jurisdiction of the court. Either way the advantage of the expeditious and cheap procedure involved in the summary application by originating notice of motion would be lost and the parties would in effect be drawn into more protracted and expensive litigation which would prove unnecessary if the court decided to exercise its disciplinary supervisory jurisdiction on the summary application.

RULING ON THE PRELIMINARY ISSUES

34. In the result in determining the points of law set down for trial as preliminary issues I hold that:

1. The matters raised in the statement of claim are not res judicata;

2. The plaintiff is not estopped or precluded from relying on the claims referred to in the Statement of Claim whether as a matter of public policy or otherwise. 1997 No 258

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

GIRJ2657

CHANCERY DIVISION

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BETWEEN

ULSTER BANK LIMITED

Plaintiff;

AND

FERGUS HANNAH BELL, JOHN H CAVAN, MICHAEL J GILFEDDER,

MARK KINKAID AND BRIAN IVESTON PRACTISING AS FISHER & FISHER

Defendants.

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J U D G M E N T O F

GIRVAN J

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