A SM (subject-matter) is composed of
- -(claim = subject = demand for compensation or restitution)
- -(coa =cause of action = matter) = the set of PLF (points of law and fact) that justify the right to claim
RES JUDICATA (RJ)
RJ ONLY PRECLUDES (FOC) BETWEEN THE SAME PARTIES (AND THEIR PRIVIES) …Doctrine of Privity: eg. heirs, successors, agents, subsidiaries, majority shs, or the state wrt stateownedcos.
DIFFERENT PARTIES CAN FOC A RJ. THIS IS CALLED COLLATERAL CHALLENGES (CC) =SAME COA(matter), BUT DIFFERENT PARTIES(subject). THUS, CC CAN NEVER GIVE RISE TO RJ.
RJ requirements:
-court had competent and recognised jurisdiction, even if was a foreign court, or
-decision is final and conclusive on merits… (in usa, on merits and/or on process)
3 possible types of (FOC (followonclaim)=parallel proceedings)
A/by different parties, on the same coa (as the RJ). These are called collateral challenges (CC)
B/by a stranger (not a privy), (v a RJ party)…..Half CC: only 1 different subject [ 1 jr party + 1 non-jr party(stranger)] , can foc same coa…eg the RJ loser starts FOC v his lawyer for negligence. the lawyer is a stranger to the RJ decision, and not bound by it. Thus, the FOC is allowed).
<> SEE ANCHOR DEFENDANTS (BELOW)
C/by the same parties (to a RJ), with :
A/DIFFERENT COA:
A.1/ containing PLF/s non-(relevant/incidental/essential) to the RJ. DOCTRINE OF ISSUE ESTOPPEL (COLLATERAL ESTOPPEL)
A.2/ containing an (implied?) PLF non-(relevant/incidental/essential) to the RJ, which was raised in the RJ. THE HENDERSON RULE
B/SAME COA:
B.1/ Containing new facts that came (after RJ) to light, that fundamentally change the complexion of the case, which could not have been ascertained before by reasonable due diligence. Phosphate Sewage case. DOCTRINE OF COA ESTOPPEL
B.2/ Containing the application to set aside the RJ judgment on the ground that it was obtained fraudulently Zurich v Hayward. DOCTRINE OF COA ESTOPPEL
B.3/ Containing only coa ‘on the judgment’ and the FOC is by the winning claimant. Doctrine of Merger.
B.4/ containing non-binding PLFs (of RJ) = Doctrine of RJ… eg. a RJ can be FOC’s (by losing party) only via appeal…. But the winning party can, in a different jurisdiction, on non-binding PLFs (non-RJ PLFs) (case: the victims of the truckmanufacturers won in EC, so there was no point in them appealing to ECJ, but they FOC’d in CAT (to also claim damages under the UK jurisdiction). CAT held that some EC decision points were binding (RJ), so precluded from FOC, but allowed the FOC on the non-binding EC decision points. truckmanufacturers tried to contest these non-binding EC decision points, but CAT ruled that, since truckmanufacturers had accepted the EC Settlement procedure (and confirmed in a Consent Award), (on both binding and non-binding points), it would be AOP (abuse of process) to contest the non-binding points. Thus, CAT precluded their defence, and awarded damages to the victims…. However trucksmanufacturers appeled to the CA, which dismissed their appeal on the same grounds as the CAT.
B.5/The RJ court had NO competent or recognised jurisdiction, in the UK. Ground: RJ never arised.
B.6/The RJ judgment is non final, or not conclusive on merits… (in usa, on merits and/or on process). Ground: RJ never arised.
-same subject (same 2 jr parties), same coa….can foc on grounds that lost because of inadequate counsel, or personal reasons?: neither jr party can FOC
RJ DEFENCES [TO STRIKE OUT]
A court can preclude (struck out, and perhaps also SRA disciplinary action) a proposed claim. The preclusion judgment can always be appealed. Can also be FOC’d in some cases (see types of FOC).
Possible Preclusion grounds :
a-Failure to disclose a reasonable arguable case
b-Erga Omnes [(where there is a factual erga omnes -in the original decision- ). erga omnes means ‘against all’. Thus, nobody can possibly have a coa -eg. hmlr states the property is in my name.]
c-AOP (abuse of process) tries to avoid duplications/inconsistencies between judgments. AOP can be on these grounds (non-exhaustive):
- private interest (eg. for the party not to be vexed twice)
- public interest (eg. for the state not to have issues repeatedly litigated)
- RJ (res judicata): binding court decisions, or PLF/s
*Settlements can only preclude (a FOC or Appeal) if confirmed in a Consent Award
RJ allows for 4 possible Defences, by raising a Tomlin or Consent Order (to have the claim struck out on RJ) :
a/ THE DOCTRINE OF COA ESTOPPEL
same coa. neither party can FOC the same coa…2 exceptions:
-Phosphate Sewage case: where new facts come to light that fundamentally change the complexion of the case, which could not have been ascertained before by reasonable due diligence.
-Zurich v Hayward: where a party applies to set aside the judgment because it was obtained fraudulently.
b/ THE DOCTRINE OF MERGER:
same coa. the winning claimant’s FOC only has coa on the judgment.
A judgment is only given when a coa is found to exist. A judgment has the effect of merging the coa within it. Now the claimant only has a right on the judgment (and no longer on the coa). Thus, a winning claimant who does not challenge the judgment (eg on quantum) on his original claim (RJ), cannot then bring a FOC (eg to claim more quantum) because that would involve exercising a right on the original coa, which no longer exists because it was merged with the judgment.
c/THE DOCTRINE OF ISSUE ESTOPPEL (COLLATERAL ESTOPPEL)
different coa, containing a particular PLF (point/s of law or fact) which is relevant (*incidental) and an essential ingredient (to the RJ). Thoday v Thoday.
* [‘Incidental’ = connected, but less important].
neither party can FOC a different coa if contains PLF/s relevant/incidental/essential to the RJ….thus, the same parties can FOC a different coa that contains PLF/s non-(relevant/incidental/essential) to the RJ.
d/ THE HENDERSON RULE
-same parties cannot FOC a different coa containing an (implied?) PLF, which is non-(relevant/incidental/essential) to the RJ, but was not (and could and should have) raised in the RJ…… Thus… same parties can FOC a different coa containing an (implied?) PLF non-relevant/incidental/essential) to the RJ, which was raised in the RJ.
-Applies, even if it was due to negligence, accident or inadvertence.
-To establish if the Henderson rule can apply to class actions, is necessary to consider the Aldi Requirement (Aldi v WSP Group) = parties, with possible related claims, did not, but could and should have, informed the court, rather than wait and litigate those related claims later. the RJ contained PLFs requiring that any possible related claims should be informed to the court. However Aldi did not, so Aldi cannot FOC on a different coa , on those PLFs, because Aldi failed to raise them (but could and should have) in the RJ.
1-where a coa involves claims against multiple parties, it is convenient for all of those claims to be tried together to avoid the risk of inconsistent results.
2-courts in different jurisdictions should seek to avoid holding concurrent trials relating to the same claims (this is the doctrine of lis alibi pendens), both to avoid inconsistent results and to avoid defendants having to respond to the same claims in different courts.
Article 6 of the Brussels I Regulation provides: “A person domiciled in a Contracting State may also be sued (as an anchor defendant), where he is one of a number of defendants, in the courts for the place where any one of them is domiciled;”
Similarly, the English CPR in RSC Order 11: “Rule 1 (1) a claim form may be served out of the jurisdiction with the permission of the Court if is brought against a person duly served within, or out of the jurisdiction, and a person out of the jurisdiction is a necessary and proper party;”
Limitations
ANCHOR DEFENDANTS
https://globalcompetitionreview.com/article/dutch-court-seeks-ecj-opinion-anchor-defendant-doctrine-in-power-cables-case
CAn claimants can bring a foc via an anchor defendant not named in an original cartel decision ?
The claimant public utility companies from Bahrein, Saudi Arabia, Kuwait and Oman initiated proceedings against various entities of the Prysmian, ABB and Nexans groups of companies, as well as against Pirelli and Goldman Sachs. The claimants argued that each of these defendants could be held responsible for an infringement of competition law on the market for high voltage power cables.
Their FOC was based on a Decision of the EC establishing an infringement of Article 101 TFEU and Article 53 of the EEA Agreement (the “Decision”). However, none of the anchor defendants were addressed by the Decision.
were the claims against the domestic (anchor) defendants and the foreign defendants, so closely connected that it is expedient to hear and determine them together, to avoid the risk of irreconcilable judgments resulting from separate proceedings?
It is standard case law that, in order for judgments to be regarded as irreconcilable, it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of both fact and law…. The Court ruled that there was no same situation of fact and law :
Firstly, the Court noted that the EC had not found any direct or indirect participation of the anchor defendants in the infringement. Furthermore, claimants barely submitted any facts to substantiate their assertion that the anchor defendants had infringed the prohibition of Article 101 TFEU.
Secondly, the Court ruled that it does not follow from the Decision – nor from evidence provided in the proceedings – that any of the foreign defendants exercised decisive influence over their Dutch group companies, or vice versa. The Court stressed that ECJ case law: liability for a cl infringement always requires that the infringer exerts effective decisive influence (on the cl infringement). The mere fact that the Dutch defendants are indirect subsidiaries or ‘sister companies’ of the addressees of the Decision does not imply they are involved in the cl infringement.
The Court also rejected the claimants’ argumentation that was based on the ECJ’s Skanska judgment 2019. Claimants: the Skanska judgment means that an infringement of the cartel prohibition can be attributed to any legal entity within the same group of companies. But this was wrong because the skanska judgment was whether a company could escape from their obligations through restructuring. this was not the case here.
the Court declined jurisdiction to hear the claims against the foreign defendants. This judgment puts a halt to unlimited forum shopping. The fact that the Dutch “anchor defendants” are subsidiaries or group companies of foreign corporate defendants who were found guilty of an infringement of Article 101 TFEU, is not sufficient for Dutch courts to assume jurisdiction over those foreign defendants.