Views on Re-litigation/Strike Outs/Judgments ?

[andydd]

Perhaps people could comment on my viewpoint:-

 

 

A strike out or judgment is the final word in a claim and can only be overturned by a set a set aside or an appeal. (As its final this is why there is nothing in CPR about permission to re-litigate, unlike discontinuance).

 

A discontinuance is not a final judgment and therefore can in theory be re-litigated, but this may be unfair hence why CPR 38.7 exists.

 

 

 

My situation is I made a claim relating to service charges, defendant made counterclaim, he didnt pay fee - CC was struck out, he put in set aside application - also struck out. Final judgment was made in my favour (although didnt mention the already struck out counterclaim).

 

Year later, he has put identical claim (to original CC) in. Ive put in Summary Judgment/Strike out of statement of case application - this is in June.

 

Thanks

 

Andy

[clayts]

This topic may help - essentially, my understanding is that if the claim is identical to the one already dismissed then Res judicata applies - but I'm no legal expert, so don't take my word for it.

[clayts]

Andyorch posted this in my topic about Wescot/MBNA if it's any help

 

Res judicata refers to a decision in English law which has been decided once and for all by a judicial tribunal, such that the decision may only be challenged on appeal by another judicial tribunal higher in the court hierarchy. For example, a decision made at first instance by a High Court judge at a hearing may only be challenged by appealing to the Court of Appeal, and then to the House of Lords. Other than this procedure through the court hierarchy, the subject matter of the decision may not be relitigated by the parties at a later date.

The principle prevents the same claim from being raised again between the parties to the litigation (for example, the claimant raising the same claim for recovery or damages or other relief) or calling into question the correctness of the earlier decision (for example, where the defendant argues that a damages award is excessive). The principle applies to matters of fact and law, and mixed questions of fact and law. When a judgment is entered in respect to the facts, the cause of action and legal rights of the parties are extinguished and said to 'merge in the judgment'. The correctness of the decision is irrelevant, other than on appeal. A final decision must be appealed in order to be set aside the judgment or have it varied.

As such, the judgment operates as an estoppel to further litigation and extinguishes the legal rights that gave rise to the litigation in the first place.

[andydd]

Thanks both, im aware of Res Judicata (thanks to Andy's posts on CAG) and used it in my Statement of Case, it then dawned on me that this may be incorrect as RJ refers only to JUDGED cases, and therefore would not apply to struck out ones as there had been no judgment. Then it dawned on me that the case (of which the counterclaim had been a part) HAD been finally judged, so perhaps RJ does indeed apply (although the judgment made no mention of the counterclaim but then again, why would it ?).

 

Interestingly the original judge has now sent me (a year later) the final judgment from the original case (It was judged at the time but I cant recall actually receiving the judgment papers), perhaps the judge has sent it now to underline that the original case WAS judged !..and this will help me in my SJ hearing.

 

I'd still be interested if anyone has views on my original viewpoint :-

A strike out or judgment is the final word in a claim and can only be overturned by a set a set aside or an appeal. (As its final this is why there is nothing in CPR about permission to re-litigate, unlike discontinuance). - There is a big full stop here and it prevents re-litigation

 

A discontinuance is not a final judgment and therefore can in theory be re-litigated. - There is no big full stop unlike above, but to stop endless re-litigation CPR 38.7 exists to stop such abuse.

 

 

Andy

Edited April 7, 2012 by andydd