The preclusive effects of a foreign judgment in subsequent proceedings in England : a study of the res judicata andabuse of process doctrines as these apply to foreign judgments in English private international law

This thesis considers the preclusive effects generated in subsequent proceedings in England by a foreign civil and commercial judgment, once recognised as a res judicata according to either the common law rules of recognition (including the related statutory registration schemes), or the rules supplied by the Brussels and Lugano Conventions. In particular, this thesis examines four preclusive pleas which a foreign judgment might support: cause of action estoppel; the plea of former recovery under section 34 of the Civil Jurisdiction and Judgments Act 1982; issue estoppel; and, the abuse of process plea associated with the rule in Henderson v Henderson (1843) 3 Hare 100.
Chapter One introduces the four preclusive pleas and the schemes for the recognition (or registration) of foreign judgments. Chapter Two considers the pleas that preclude the contradiction or reassertion of a cause of action where the foreign judgment has been recognised at common law, and then examines the common law recognition process to ensure that it verifies the res judicata status of the judgment (including that process as reflected in the common-law-related statutory registration schemes). Chapter Two also examines the generic requirements for the res judicata preclusive pleas, namely: that the subject matter in the foreign and subsequent English proceedings must be identical, and that the parties (or their privies) must be the same. Much of the analysis of these requirements is useful for the discussion in Chapter Three of the issue preclusive effects of foreign judgments recognised at common law. Only relatively recently has the common law accepted that foreign judgments can support a plea of issue estoppel, and even more recently has issue preclusion by a final interlocutory issue decision of a foreign court been acknowledged. Thus, in light of these developments, adjustments in the recognition/res judicata requirements necessary to found the plea in subsequent English proceedings, are considered. In Chapter Four the traditional res judicata pleas so far discussed are contrasted with the Henderson abuse of process plea. If it applies at all in respect of earlier foreign proceedings, the Henderson rule precludes subsequent proceedings in England which seek to litigate subject matter that could and should have been litigated in the foreign proceedings, but which was not. Chapter Five examines the preclusive effects of judgments recognised in England according to the rules of the Brussels and Lugano Conventions. The underlying nature of the Conventions ensures that these judgments are effective as regards cause of action preclusion, since automatic recognition (which suggests full faith and credit) enables claim preclusive effects to result - the English court extending the law of the foreign rendering state in such cases. But it is argued that a different approach should be taken where issue preclusion and abuse of process preclusion are concerned. Finally, Chapter Six summarises the preclusive effect of a foreign judgment in subsequent proceedings in England, and conclusions are drawn.