United Kingdom House of Lords Decisions

But on the second point, I entertain a very clear opinion. Res judicata, by its very words, means a matter upon which the Court has exercised its judicial mind, and has come to the conclusion, that the one side or the other is right, and has pronounced a decision accordingly. But when an action of declarator is brought, and a verdict is obtained by the pursuers, and that is set aside, and then an arrangement takes place by which, in consideration of the payment of a sum of money, an interlocutor is pronounced for the defenders, and the Court simply registers that interlocutor without expressing any judicial opinion on the subject, I am of opinion, that it is contrary to all principle to consider, that that can be treated really as res judicata. It is to be observed, that it is to be admitted that it cannot be res judicata if it is done by collusion or fraud. It is argued, that in this case no fraud is alleged or proved. But it is very difficult, in a case of this description, to prove fraud; and if this were held to be a binding judgment by reason of res judicata, it would follow, that in every case where, in fact, one person had brought an action of declarator, and it had been compromised, the public would be bound, unless somebody could prove, that there had been fraudulent collusion between the parties. I am of opinion, that that is not the meaning of res judicata according to the law of any civilized country. I am also of opinion, that it was not fit for the Court to go into the question, whether this was a reasonable compromise or not. It was impossible that the Court could ascertain that. The Court exercised no judicial function upon the subject. It merely exercised an administrative function by recording the interlocutor which had been agreed to between the parties. For these reasons I concur with the Lord Chancellor in the opinion, that these interlocutors ought to be reversed.

Lord Colonsay.—My Lords, upon the first point which has been argued here, namely, whether, in a case of this kind, a verdict and judgment obtained on the question, whether a right of way is a public right of way, is or is not to be conclusive against another party attempting to try the same question, I confess I have a very distinct opinion. My opinion is, that when, in a case of this kind, an action of declarator to establish a public right of way is tried upon the issue, whether it is a public right of way or not, the verdict and judgment upon that point, when allowed to become final, is a conclusive settlement of that question.

I apprehend there is a material distinction between the law of Scotland and the law of England, upon this subject. I mean, as to the form of procedure. I am not aware that, in the law of England, there is any such thing as an action of declarator to establish a right of public way open to any individual in the community or in the world at large, who may choose to raise it; but if there is such a right open by the law of Scotland, then it comes to be a material question, whether there can be any conclusion put to such an inquiry. It is because the door is so widely open, that there must be a mode of shutting that door in due time; and I apprehend the dicta we have on this subject are very clear and conclusive. We have the dictum of a very eminent Judge, Lord Fullerton, indicated in two cases—( Greig v. Mags. of Kirkcaldy, and Maule v. Maule, 5th July 1831). And we have the doctrine enunciated, I think, by Lord St. Leonards in one case leading to the same result, that if the question is tried, say at the instance of the heritor, in order to have a declarator upon the question of a public right of way, and if that action has been instituted against parties who truly have an interest to maintain the public rights, a judgment in his favour in that action would be a conclusive judgment.

Now, in this particular case, the parties who raised the action of declarator were the parties who, perhaps of all others, had most interest in having this public right of way established. I mean the inhabitants of Elgin, or those who represented the inhabitants of Elgin, and some other persons who resided in the neighbourhood. If the case had gone on to a conclusion in the ordinary course by a verdict and judgment, and if, for instance, the judgment had been in favour of the heritor in this case, instead of against the heritor, I apprehend it would have been conclusive, because the interest of the public was fairly represented. If it has been fairly represented, then, that interest is for ever concluded by the verdict and judgment. But it is a different matter if, when, an action of this kind having been instituted, something is done which interferes with the ordinary course of justice, and limits the question which is tried.

I do not think there has been any case cited, and that there is any case to be found in the books, which is adverse to the decision, that has been pronounced upon the first point in the present case. The only case that has been at all relied on is one, in which a question was raised as to lis pendens. That was not a judgment on this point. The question there was, whether a second action, raised while the first was in dependence, was to be allowed to be proceeded with, or whether it was to stand over until it was seen whether the first action was proceeded with fairly. If the parties who brought the first action had sold the interest of the public, or had suddenly abandoned the case without cause, then there would have been no res judicata. But it was not decided, that if the first case were fairly tried out, the second case would be allowed to proceed further. It was no judgment upon that point. I think that all our authorities and the dicta of Judges go to this, that where a case is tried in reference to an interest, and that interest

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