UKPC 11
Privy Council Appeal No 0013 of 2011
Rukhmin Balgobin v South West Regional Health Authority
From the Court of Appeal of the Republic of Trinidad and Tobago
JUDGMENT DELIVERED BY
10 May 2012
Heard on 12 January 2012
(Instructed by Forsters)
Alan Newman QC
(Instructed by Simons Muirhead & Burton)
Merger and alternative liability
"If there be a breach of contract, or wrong done, or any other cause of action by one against another, and judgment be recovered in a court of record, the judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result. Hence the legal maxim, 'transit in rem judicatam,' - the cause of action is changed into matter of record, which is of a higher nature, and the inferior remedy is merged in the higher. This appears to be equally true where there is but one cause of action, whether it be against a single person or many. The judgment of a court of record changes the nature of that cause of action, and prevents its being the subject of another suit, and the cause of action, being single, cannot afterwards be divided into two. Thus it has been held, that if two commit a joint tort, the judgment against one is, of itself, without execution, a sufficient bar to an action against the other …
We do not think that the case of a joint contract can, in this respect, be distinguished from a joint tort. There is but one cause of action in each case. The party injured may sue all the joint tortfeasors or contractors, or he may sue one, subject to the right of pleading in abatement in the one case, not in the other; but, for the purpose of this decision, they stand on the same footing. Whether the action is brought against one or two, it is for the same cause of action."
"The two principles are not capable of being brought into play together: you cannot at once rely upon estoppel and set up the facts; and if the estoppel makes A and B liable, and the facts make B and C liable, neither the estoppel nor the facts, nor any combination of the two can possibly make A, B, and C all liable jointly."
Did the obtaining of the default judgment amount to an election?
"In the context of this case the first defendant's reliance on an election by the claimants is the barest technicality. If the doctrine of election threatens to work injustice it must be applied rigorously, with great care, and as narrowly as may be consistent with legal principle."
"19. The ratio of Pendleton is that on the facts of that case when the application for the default judgment was made against the backdrop of the features of the case, it could not be said that there was an unequivocal election. Pendleton must be taken as saying that a court faced with the instant problem must look at the default judgment against the backdrop of the features of the case including the way the case was advanced evidentially, to see whether the entry of the judgment was a conclusive, unequivocal election."
"The principle, I take it, running through all the cases as to what is an election is this, that where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act—I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way—the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election."
"if a man is entitled to one of two inconsistent rights it is fitting that when with full knowledge he has done an unequivocal act showing that he has chosen the one he cannot afterwards pursue the other, which after the first choice is by reason of the inconsistency no longer his to choose."
"a default judgment is capable of giving rise to an estoppel per rem judicatam. The question is not whether there can be such an estoppel, but rather what the judgment prayed in aid should be treated as concluding and for what conclusion it is to stand. For, while from one point of view a default judgment can be looked upon as only another form of a judgment by consent (see In re South American & Mexican Co  1 Ch 37) and, as such, capable of giving rise to all the consequences of a judgment obtained in a contested action or with the consent or acquiescence of the parties, from another a judgment by default speaks for nothing but the fact that a defendant for unascertained reasons, negligence, ignorance or indifference, has suffered judgment to go against him in the particular suit in question. There is obvious and, indeed, grave danger in permitting such a judgment to preclude the parties from ever reopening before the court on another occasion, perhaps of very different significance, whatever issues can be discerned as having been involved in the judgment so obtained by default."
"No defence having been served on behalf of the seventh defendant, a judgment in default was entered on 22 August 1989. By then I had reached the conclusion that there was little if any prospect of the seventh defendant satisfying any judgment, and that it would not take part in the proceedings. Accordingly I obtained the judgment not with a view to executing it but for convenience and to save the costs which would be involved in having to continue to serve it with all relevant summonses, etc. No steps have been taken to assess damages pursuant to the judgment and to enforce the same."
"It is evident, therefore, that the judgment, which was for damages to be assessed, was taken, in effect, merely to simplify the conduct of the proceedings. There was no intention of pursuing the inquiry to final judgment. Thus Westminster were not seeking remedies at all."