BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW

PROJECT REFERENCE: JLS/2006/FPC/21 – 30-CE-00914760055 THE EFFECT IN THE EUROPEAN COMMUNITY OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS: RECOGNITION, RES JUDICATA AND ABUSE OF PROCESS

Project Advisory Board: The Rt Hon Sir Francis Jacobs KCMG QC (chair); Lord Mance; Mr David Anderson QC; Dr Peter Barnett; Mr Peter Beaton; Professor Adrian Briggs; Professor Burkhard Hess; Mr Adam Johnson; Mr Alex Layton QC; Professor Paul Oberhammer; Professor Rolf Stürner; Ms Mona Vaswani; Professor Rhonda Wasserman

Project National Rapporteurs: Mr Peter Beaton (); Professor Alegría Borrás (Spain); Mr Andrew Dickinson ( and Wales); Mr Javier Areste Gonzalez (Spain – Assistant Rapporteur); Mr Christian Heinze (Germany); Professor Lars Heuman (Sweden); Mr Urs Hoffmann-Nowotny (Switzerland – Assistant Rapporteur); Professor Emmanuel Jeuland (France); Professor Paul Oberhammer (Switzerland); Mr Jonas Olsson (Sweden – Assistant Rapporteur); Mr Mikael Pauli (Sweden – Assistant Rapporteur); Dr Norel Rosner (Romania); Ms Justine Stefanelli (United States); Mr Jacob van de Velden (Netherlands)

Project Director: Jacob van de Velden

Project Research Fellow: Justine Stefanelli

Project Consultant: Andrew Dickinson

Project Research Assistants: Elina Konstantinidou and Daniel Vasbeck

1

QUESTIONNAIRE

The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process

Instructions to National Rapporteurs ƒ Please use the following questions to describe the current position in the country for which you have been appointed as National Rapporteur. ƒ Please respond to the following questions as fully as possible, with appropriate reference to, and quotation of, supporting authority (e.g. case law and, where appropriate, the views of legal writers). Please give full citations to supporting authority using the Oxford Standard for Citation of Legal Authorities (OSCOLA) guidelines, a copy of which will be provided by the Institute. ƒ Please begin your typed responses directly below each question. ƒ Please indicate the name of your country and your official title(s) at the top of the answer sheet under “Questionnaire”. ƒ It is recommended that you read through the entire questionnaire and its accompanying guidelines before you begin to draft your responses. This applies equally when you start answering a question that is part of a specific section. ƒ Please quote and translate into English the rules of the civil procedure code (and a summary of any travaux préparatoires) that deal with judgments and which you refer to for the purpose of your answer, as well as indicate and translate the legal terminology used to describe the elements of judgments.

Timetable The National Rapporteurs have a period of two months to produce a first full draft of their respective national reports (a consultancy and copy right licensing agreement will be sent to the rapporteurs separately). At the meeting of 4 and 5 October it was agreed that the National Rapporteurs will submit their national reports in due time before the second meeting of the rapporteurs that will take place in London on 17 and 18 January (dates to be confirmed). All rapporteurs further agreed to submit draft answers on the first part of the questionnaire one month after the questionnaire has been sent out to allow for discussion and feedback through the project extranet and email.

2

I. Judgments...... 5

A. The concept, form, structure and terminology of judgments...... 8 B. The final determination and findings on issues of fact and law ...... 10 C. The binding character of a ...... 12 D. Judgments that are capable of having preclusive effects...... 15

II. Preclusive effects...... 16

A. Claim preclusion...... 16 1. Existence and nature of claim preclusive effects...... 29 2. Policies underlying claim preclusive effects ...... 29 3. Conditions for claim preclusive effects ...... 29 4. Invoking claim preclusive effects...... 29 5. Exceptions to claim preclusive effects...... 29 6. Claimant and Defendant ...... 30 7. Other participants ...... 30 8. Represented persons ...... 30 9. Persons connected to the Claimant, Defendant, and other participants ...... 30 10. Strangers ...... 30 B. Issue preclusion...... 30 1. The existence and nature of issue preclusive effects ...... 30 2. Policies underlying issue preclusive effects ...... 30 3. Conditions for issue preclusive effects ...... 30 4. Invoking issue preclusive effects...... 30 5. Exceptions to issue preclusive effects ...... 30 6. Claimant and Defendant ...... 31 7. Other participants ...... 31 8. Represented persons ...... 31 9. Persons connected to the Claimant, Defendant, and other participants ...... 31 10. Strangers ...... 31 C. Wider preclusive effects ...... 31 1. The existence and nature of wider preclusive effects ...... 31 2. Policies underlying wider preclusive effects ...... 31 3. Conditions for wider preclusive effects...... 31 4. Invoking wider preclusive effects...... 32 5. Exceptions to wider preclusive effects ...... 32 6. Claimant and Defendant ...... 32 7. Other participants ...... 32 8. Represented persons ...... 32 9. Persons connected to the Claimant, Defendant, and other participants ...... 32 10. Strangers ...... 32

III. Preclusive effects of judgments within the Brussels/Lugano Regime ...... 33

A. Recognition...... 33 1. Judgments recognised...... 33 2. Procedural aspects of recognition...... 33 3. Exceptions to the rule (grounds for non-recognition)...... 33 4. Effects of recognition ...... 33

3 B. Claim preclusion within the Brussels/Lugano Regime...... 33 1. Existence and nature of claim preclusive effects...... 33 2. Policies underlying claim preclusive effects ...... 33 3. Law applicable to claim preclusive effects...... 33 4. Conditions for claim preclusive effects ...... 34 5. The identity of claims in the Brussels/Lugano Regime ...... 34 6. The identity of parties in the Brussels/Lugano Regime...... 34 7. Invoking claim preclusive effects under the Brussels/Lugano Regime...... 34 8. Exceptions to claim preclusive effects under the Brussels/Lugano Regime...... 34 9. Persons affected by claim preclusive effects ...... 34 C. Issue preclusion...... 34 1. Existence and nature of issue preclusive effects...... 34 2. Policies underlying issue preclusive effects ...... 34 3. Law applicable to issue preclusive effects...... 34 4. Conditions for issue preclusive effects ...... 34 5. Invoking issue preclusive effects...... 35 6. Exceptions to issue preclusive effects ...... 35 7. Persons affected by issue preclusive effects...... 35 D. Wider preclusion (abuse of process/claims and issues that could or should have been raised)...... 35 1. The existence and nature of wider preclusive effects ...... 35 2. Policies underlying wider preclusive effects ...... 35 3. The law applicable to wider preclusive effects...... 35 4. Conditions for wider preclusive effects...... 35 5. Invoking wider preclusive effects...... 35 6. Exceptions to wider preclusive effects ...... 35 7. Persons affected by wider preclusive effects...... 35 E. Authentic instruments/court approved settlements...... 36

IV. Preclusive effects of third state judgments...... 37

4 I. Judgments

General Background:-

For the purposes of this study there follows a brief introductory description of the structure and functioning of the Scottish courts which is relevant to this study and, because of the integrated theory and practice applicable to Res Judicata under Scottish law and procedures, to later sections of the Questionnaire. 1

The principal civil courts in Scotland are the and the Court. Each has first instance and appellate jurisdictional competences and the functions and distribution of the two courts whilst rather different are to an extent both complementary and overlapping. They also share some procedural features notably the use of written pleadings as the basis of formal procedure. The , the Judicial Committee of the Privy Council and the future UK have competencies in relation to from the Scottish Courts in Civil and constitutional including Human Rights matters.

In addition to the and the Court of Session other courts and Tribunals which function in Scotland are relevant for the purposes of this study since the doctrine of Res Judicata is applied by them also. These include the which has jurisdictional competence in matters of Land Tenure and and the Lands Tribunal for Scotland as also other Tribunals with purely Scottish or UK functions. However the main concentration of civil court activity in Scotland is in the Court of Session and the Sheriff Court.

The Court of Session sits only in Parliament House in and forms a part of the Supreme . The of the Court of Session both first instance in the and in the divisions of the are known collectively as the Senators of the College of or the Lords of Council and Session2. At first instance cases are heard by single judges in what is known, for historical reasons, as the Outer House. There is unlimited upper jurisdictional competence to the Court of Session and some, but limited, privative . In reality the bulk of first instance business is in the Sheriff Courts of which there are forty nine located throughout the country.

For civil business at first instance the Sheriff sits alone as does, in the main, each Outer House in the Court of Session. In that court however there is the possibility for delictual cases for damages for personal injuries or defamation to be heard before a jury sitting with a single judge at first instance.

In each court there are several procedures at first instance. In the Court of Session cases are commenced either by summons or by Petition. In the former procedure which applies to most inter partes litigation, the Pursuer raises the action by presenting a summons to the court where it passes the Signet before service on the defender. The subsequent procedure can involve a legal debate on the preliminary pleas of the parties

1 For a general description of the Scottish legal system see 2 The Court of Session was originally established by Act of the Scots Parliament in 1532. For a description and History of the Court of Session see 5 and it is common for the court to allow a proof before answering legal points or points which if upheld would result in an action being dismissed for example for want of relevancy or competency.

The petition procedure is used for ex parte matters and also where the discretion of the court is sought to make an order of clarification by declarator or where judicial review within the inherent jurisdiction – the nobile officium - of the court is requested. In Petition procedure the Petitioner is required to serve on those parties interested in the subject matter and in many respects thereafter the procedure is similar to that in ordinary procedure. There are variants of these procedures for certain classes of litigation of which the most significant for present purposes is the procedure for Commercial actions where the Outer House judges at first instance are given very wide discretion in the procedural of the case to try to seek early and speedy resolution of issues between parties.3

In the Sheriff Court at first instance there are several procedures. The ordinary procedure of the Sheriff Court for cases of a monetary value of more than 5000 pounds applies to most inter party litigation including family and consistorial matters as well as to the normal financial claims at contract and . There is no upper financial limit to the competence of the Sheriff in civil matters so the Sheriff Court and the Court of Session largely overlap in terms of competence. For cases below that value there are two procedures of a summary nature – the Summary Cause for actions of a value from above 3000 to 5000 pounds and the Small Claim for actions up to 3000 pounds.4

The Small Claim and Summary Cause procedures are essentially simplified form based and expedited but some of the normal rules of civil procedure apply to these as to Ordinary Cause actions apart form those related to written pleading which are modified and more flexible than in the other procedures. For completeness it should be noted that there is also in the Sheriff Court a form of action known as the Summary Application which is in a way equivalent to the Court of Session petition procedure in that it deals with a large number of very often statutory applications where the discretion of the court is sought to be applied.

Sheriff Court cases in general commence with service on the relevant opposing party or parties following the granting of a warrant to this effect by the court. Before granting the warrant the court, usually in the person of the Sheriff Clerk, will examine the initiating document for competence jurisdictional and otherwise though in questionable cases the sheriff clerk may place it before a Sheriff for consideration. In general however it is for the parties to take any pleas to jurisdiction or otherwise open to them.

The important point about all of these procedures, as with the Court of Session procedures at first instance, is that preliminary matters can be raised at the outset on matters of jurisdiction of law or indeed of procedure such as for example the preliminary pleas as to relevancy or competency of the case set out or, where appropriate, as to the sufficiency of the specification in the pleadings as well as pleas of lis alibi pendens, no jurisdiction or, where competent, of forum non conveniens . It is in this way, mostly, that the preliminary plea of Res Judicata comes before the court.5

3 For a general description of Court of Session procedure see 4 The values of the Summary Cause and Small Claim were raised recently; see 5 For a general description of Sheriff Court procedure see 6

The appellate jurisdiction of the Sheriff Court has two forms. Under the Summary Application procedure a single Sheriff can entertain appeals in certain administrative or quasi-administrative matters such as for example the issue of certain licences or certificates.

The other appellate competence which is rather more significant for this study is the appellate jurisdiction of the Sheriffs Principal. The Sheriff Courts of Scotland are grouped in six Regions or . Each has a with administrative and judicial duties in respect of the courts in the Sheriffdom as a whole. The Sheriff Principal role in the past was rather more ceremonial than judicial 6 but nowadays the holders of the office tend to be drawn from the ranks of the more senior and experienced Sheriffs most of whom are 7. The Sheriffs Principal exercise appellate jurisdiction from the Sheriffs as regards civil appeals in parallel with the Inner house of the Court of Session.

The Sheriffdoms vary in size both geographically and in the number of courts of which they comprise ranging from that of and Strathkelvin, which consists only of the Sheriff Court in Glasgow and is far and away the busiest in the country, to the Sheriffdom of Grampian, Highland and Islands in the North and West where the Sheriff Principal has responsibility for some sixteen courts extending from Lerwick and Kirkwall in the Northern Islands to Fort William and including courts in Skye the Western Isles and the North East.8

The Sheriffs Principal have an appellate jurisdiction as regards matters decided by the Sheriffs at first instance. In this the procedures vary; in relation for example to Small Claims the is by way of a stated case on matters of law only whereas in the ordinary cause it is by appeal which can be on matters of fact and law mixed or on matters of law only.

There are time limits for appeal which can only be departed from in exceptional circumstances one of which is where a party against whom a decree has passed in absentia seeks to be ‘reponed’ in the case subsequent to the days of appeal having expired the existence of the decree often having come to light only at the onset of execution thereupon. Reponing is a discretional remedy and may be allowed, subject to certain conditions, even if execution has taken place if the party concerned can show that he/she was not aware of the action and has a good defence or answer to the matters for which the decree was awarded. This is not without significance in relation to res judicata.

In the Court of Session, apart from a relatively small number of mostly statutory appeals, the appellate jurisdiction is exercised by the senior judges in the Inner House.

6 The role of the Sheriffs Principal was substantially reformed and increased following the implementation of the Sheriff Courts (Scotland) Act 1971. 7 One recent exception is the appointment of Sheriff James Taylor as Sheriff Principal of Glasgow and Strathkelvin. Sheriff Principal Taylor was a senior partner with one of the largest commercial law practices in Scotland when appointed to the Shrieval bench where he introduced a number of highly innovative, procedures for commercial cases in Glasgow Sheriff Court, many of them involving the use of IT applications. 8 The Sheriff Courts comprised in the Sheriffdom of Grampian, Highland and Islands are to be found at Lerwick, Kirkwall, Wick, Dornoch, Tain, Dingwall, Portree, Stornoway, Lochmaddy, Fort William, Inverness, Elgin, Banff, Peterhead and Aberdeen. 7 The structure is for there to be two Divisions each with five judges, of which the quorum is three, presided over respectively by the Lord President of the Court of Session and the . The two divisions are equal in status as regards the binding effect of their judgments but they cannot bind each other and in case of conflict there has to be established a full bench to resolve matters.9

Due to the volume of business which occupies the Supreme Courts as a whole, and the two senior judges in particular 10, a civil case may be heard on appeal by what is known as an ‘extra’ division of the Inner House consisting of three senior and experienced judges of whom one may be a recently retired experienced judge11 sitting as a part-time or temporary judge. This in no way diminishes the authority or competence of the court and it is especially notable that the extra divisions often contain judges with particular knowledge or expertise in particular areas.

One very important feature of the Court of Session in exercise of its appellate jurisdiction is the ability of the court to constitute itself as what is known as a ‘full bench’ in order to review the law and judicial decisions. A full bench will always be presided by one of the two senior judges, mostly but not always the Lord President, and will be comprised of any odd number of senators from five upwards depending on the status and significance of the decision or decisions to be reviewed.12 In this way the Court of Session exercises its inherent competence to review and indeed to make the law and hence to question reverse and build upon its own decisions.

A. The concept, form, structure and terminology of judgments Please describe the typical concept, form, structure and terminology of judgments in your legal system. An order of a Scottish Court in a Civil matter is referred to characteristically as a decree of that court or of the judge sitting therein. A decree in terms is simply the finding of the court as regards the matters which the parties request of the court such as an order for payment or performance, an order declaring rights or obligations or an order which brings a case to an end.

9 See below on the constitution and significance of a full bench. 10 The judges of the Court of Session at first instance and at appellate level, and the Sheriffs at first instance, but not the Sheriffs Principal in exercise of their appellate jurisdiction, sit also in criminal matters. [DN the position of the Sheriffs Principal vis a vis the JP Court] The Criminal component of the Supreme Courts is called the and at first instance sits in Edinburgh and on circuit. The Supreme Court judges when sitting on criminal matters are known as of Justiciary and the Lord President is known as The Lord Justice General. 11 Currently one of the judges sitting part time is Sir David Edward former Director of the Europa Institute of the and until recently the UK judge at the European Court of Justice. 12 See for examples Scottish Discount Co -v- Blin 1985 S.C. p.216 and Morgan Guaranty Trust –v- Lothian Regional Council 1995 S.C. p. 151. 8

The expression ‘decree’ is supplemented for certain types of procedure or substituted for others. For purposes of execution of judgments what is required is an ‘extract’ of the decree or an ‘extract decree’. Effectively this is a document which gives succinct details of the court’s order. In the procedures which are the most formal, those in the Court of Session and the ordinary cause in the Sheriff Court, the extract of the decree is drawn form the proceedings recorded in the Minutes of procedure and mostly from the interlocutors pronounced by the judge or Sheriff. In the Court of Session for example the party in right of and wishing to enforce an order must apply to the Court for an extract of the decree for this purpose. That extract is in fact a typed version of the order recorded usually in long-hand in the record of proceedings and is in the form of the final interlocutor signed by the Judge, The interlocutor merely announces the decision on the basis of what was sought from the court. In cases where the court has heard legal debate or and has deliberated on the issues the final interlocutor will be accompanied by a written judgment which will set out the reasoning of the court on matters of fact and law on the basis of which the court made its decision. In appeal cases in the Court of Session each of the appeal judges will usually pronounce a written judgement but the decision itself and the interlocutor recording that will be from the court as a whole. In those procedures where forms are used notably in Summary Cause and Small Claim cases, the extract is in a form which is prescribed as a part of the Procedure Rules and that is also the case for the ordinary cause though that procedure is otherwise based on the same use of written pleadings setting out propositions of fact and law as the Court of Session procedures 13. Interlocutor under the Scottish procedures refers generally to any order or decision of the court as recorded in the minutes of the proceedings. In the formal procedures in the Court of Session and the Sheriff Court the court papers are grouped together in a bundle known collectively as the ‘process’. This contains the principle and copy of the Initiating document, be it Summons or Petition (in the Court of Session) or Initial writ or Application (in the Sheriff Court) and in due course the productions of written evidence and the minutes of process are recorded in the Interlocutors written on the interlocutor sheets. The process may also include Minutes of Proceedings which can also include procedural and other issues relevant to the case other than the decisions of the court.14 The interlocutors therefore deal with the issues before the court where a judicial decision or order is made and record these decisions. These will range from all the procedural orders to matters of substance and ultimately the final decisions on the merits of the case where this happens. In this way the history of the case is disclosed and the various judicial pronouncements can be followed including any of those which have a bearing on significant matters of fact or law, such as orders on preliminary pleas of law or questions of .

13 See, for Summary Cause, Form XX and, for the Small Claim, Form XX. See also, for the ordinary cause, the various extract decree forms set out in Appendix 2 to the Rules and to be found at http://www.scotsourts.gov.uk/library/rules/ordinarycause/forms.asp#extract 14 See for court rules on the composition of a process Rule 4.4 of the Rules of Court of the Court of Session and Chapter 11 of the Sheriff Court Ordinary Cause Rules. 9 An interlocutor may, and in certain circumstances is required to, be accompanied by a note setting out the reasons for the decision. 15 This is particularly the case where evidence has been led, where there has been legal debate say on a preliminary matter or where a p[arty has requested a note on a particular decision. Where the plea of Res Judicata has been tendered, therefore, and a judicial decision follows thereupon it will almost invariably be the case that there will be issued a note by the court setting out the reasons for the disposal following use of the plea. 16 The information contained in a judgment in a case will depend on the subject matter as to the specifics of the order made. There are therefore various forms of interlocutor for final decisions and these will have a standard layout and wording even if they are not prescribed by procedure rules or otherwise.17 Even where, as in the Sheriff Court procedures forms of Extract decree are prescribed it is still competent to pronounce an order in some other form. In the Scottish land Court no form is prescribed as such and the procedure is rather more flexible by virtue of the subject matters treated 18. In all procedures the judgment will contain details of the Court before which the case is heard, the parties and their designations , the agents and counsel of the parties where appointed, of the date of the decision with references to any earlier decisions where the case is on appeal. In cases in foro contentioso it is invariable for the court to append a note to the decision in which the various points of fact and law will be noted and the reasons for the decision will be provided. This is the case also in those procedures where forms of extract decree are prescribed as well as in those where that is not the case.

B. The final determination and findings on issues of fact and law How does the court's determination of a matter in your legal system relate to the findings on issues of fact and law on which this determination is based? The starting point for an analysis of Scottish Civil procedures is conventionally the technique and theory of written pleadings since these determine the subject matter of the case, the arguments deployed at fact and law, the extent to which proof of fact is necessary or allowable to establish the basis of the arguments and the nature of the legal basis of the case which would enable the court to deal with the actual request of the parties as contained in their pleas – in –law. It would be somewhat excessive for this study to rehearse the history and theory of written pleadings however, there are plenty of good texts on the subject. 19

15 See and Rule 12.2(3)(b) of the Ordinary cause rules of the Sheriff Court. 16 For examples of Notes appended to judgments in various procedures see Taylor v. Yorkshire Building Society, 2007 S.L.T. (Sh Ct) p. 117 (Small Claim Appeal), Stuart v. Stuart (no 2), 2004 S.L.T. (Sh Ct) p. 44 (Sheriff Court first instance) and British Airways plc v. Boyce, 2001 S.L.T. p. 275 (Court of Session Inner House on Appeal from Employment Appeal Tribunal). 17 In general there are no prescribed forms for decisions or orders of the Court of Session; see however Rules in Chapter 11 as to extracts and official certified copy interlocutors. Sheriff Court Extract Decrees are generally in a form prescribed under the relevant procedure rules; so, for example, see Appendix 2 to the Ordinary Cause Rules (SI 1993 No 1956 (S. 223) for forms of extract decree in ordinary cause procedure, Rule 23.6 and Forms 28 and 28 a to k in Appendix 1 to the Summary Cause Rules ( 2002 No 132 as amended) and Rule 21.5 and Forms 18 and 18 a to I in Appendix 1 to the Small Claim Rules (Act of Sederunt 2002 No. 133 as amended). 18 The Scottish Land Court has as its subject matter chiefly matters relating to land tenure in the Agricultural and rural communities of Scotland including the Crofting areas. See on this the Rules of the Scottish Land Court and in particular rules 101 to 106. 19 See for example 10 For the purposes of this study and for this question in particular the following are the key points which arise as regards the links between the procedure as such and the determination of matters of fact and law which found the decision in any particular case. Most judgments written by Scottish Courts contain findings in fact and law. In the formal procedures these proceed firstly on the written pleadings of the parties. These have the main purposes of founding the case in fact and in law on which the parties base their conclusions or craves 20 an dof giving adequate notice to the other party/ies of the case pled. The pleadings set out the statements of fact and law on which the Pursuer/Petitioner bases the remedies sought. In particular it is on the basis of the pleadings that the court decides firstly if the action is competent, namely that the leadings if sustained can found a legal remedy under the law, secondly if it is relevant, namely that the pleadings are such as to create a link between the averments of fact sufficient to allow the remedy sought to be granted and the legal arguments stated, thirdly if there is sufficient specification of the factual matters which are sought to be established by the party/ies in the case and finally as to the evidence which may be led if proof of fact is required. The evidential significance of the pleadings is as important as the legal significance in that an admission in the pleadings is probative of the matters admitted and so proof thereon ids not necessary. It follows that every point of fact made in the pleadings needs to be either admitted or denied or explained. There needs to be adequate statement of the factual basis of the case and to the extent that this is not the case the court may accept a plea to the relevancy of the case or that certain issues should not be admitted to probation for lack of pleading. The same result can follow if a plea as to lack of specification is upheld. The final significant element in the pleadings are the pleas in law. The first category of these is that of the preliminary pleas. Such pleas are those which if sustained will lead the court to stop the procedure and dismiss the case or grant a decree of absolvitor with no procedure on the evidence. They include pleas such as ‘no jurisdiction’, ‘no title to sue‘, ‘mora, taciturnity and acquiescence’ (though this is often, and perhaps usually, a peremptory plea), and pleas to the relevancy and competency of the action. Included among the preliminary pleas are the parallel proceedings pleas of forum non conveniens and lis alibi pendens though these, especially the former, may require enquiry. The other pleas are those peremptory pleas which go rather to the merits or to the facts and circumstances of the substance in each case. They include the general pleas on the merits to the fact that there is no basis in fact to support the crave/conclusion 21plus such matters as compensation (anglice set- off), mora, a plea that a claim has prescribed or, in actions, is time-barred and res judicata. This plea will require supporting averments of fact and law notably as to the issues dealt with in the earlier litigation. 22 Detailed description of the founding of the plea in Scottish courts follows later.

20 The terminological differences between the Court of Session and the Sheriff Court in civil procedure are extensive and many of them relate to differences in procedure, approach and intent. In relation to the demands of the parties in the Sheriff Court a request/demand of a party is referred to as a ‘crave’ because the standard wording is to the effect that the pursuer ‘craves’ the court to grant the remedy sought. There are usually several craves including standard requests for expenses of the cause, interest on any sums claimed and for warrant for (the Scottish term for enforcement) on the dependence of the action and service all quite apart from the craves on the substance of the action. See for the Sheriff Court ordinary cause OCR 3.1(1) and Forms G1 and G1A. In the ordinary procedure in the Court of Session the conclusions which form the final part of the first part of the document contain the pursuer’s requests to the Court. Although the language used in the Form of Summons indicates that the Pursuer, as in the Sheriff Court, ‘craves’ the court to grant the remedies sought referred to in the conclusions the remedies requested are referred to in this procedure as the ‘conclusions’. In petition procedure in the Court of Session the application concludes with a ‘prayer’ to the Court to grant the remedy sought. See, for the Court of Session, RCS 13.2 and forms 13.2 - A (form of summons) and 13.2 - B (principal forms of conclusion) in ordinary procedure and in Petition procedure RCS 14.4 and Form 14.4 in Petition procedure. 21 An example of such a plea would be - “The pursuer’s averments, in so far as material, being unfounded in fact, the defender should be assoilzied”. 22 A relatively elaborate example of a plea of res judicata can be found in the case of Forrest v. Hendry reported at 2000 S.C. at p. 110 in the following terms:- “In respect that the respective rights and liabilities of the parties arising out of the dissolution of the former partnership have been determined by the decree pronounced on 18 June 1999 in favour of the defender in the previous action between them (CA5/14/1999), the liability of the Defender to the Pursuer for the sum sued for I the present action is res judicata, and the defender should be assoilzied.” 11 It should be noted that the arguments on personal bar in Scottish practice would not in fact be pled as a preliminary plea but where appropriate be founded on in a peremptory plea, especially if it relates to matters already settled by agreement between the parties.23 Mora however is very close to being a plea based on personal bar or tacit acquiescence but in this sense these remain matters of substance to be proved rather than matters of law to pled in a preliminary plea. 24

C. The binding character of a judgment Please describe the prerequisites for a judgment to have binding character so as to be capable of having preclusive effects in your legal system.

The doctrine and application of res judicata in is unified and the distinctions drawn in other systems between for example claim and issue preclusion have little place. A general description of the effect of the doctrine in Scots Law is given later 25. In this part of the Report, which deals with the questions in this section and in section D following, regard is had to the purely procedural aspects of the application of Res Judicata in the Scottish Courts. Res Judicata is applied in Scotland essentially where there has been a judgment on the merits in foro contentioso26 between parties and that judgment was or has become final. What is a judgment in foro contentioso is the subject of judicial decision, legal writings and is also dealt with partly in civil procedure rules.27 A final judgment of a court following the hearing of evidence will be able to support the plea of res judicata provided the subject matter is identical, the parties are the same and the media concludendi 28are

23 A recent analysis of the use of Personal Bar in Scottish pleadings can be found in William Grant v. Glen Catrine Bonded Warehouse, 2001 S.C. 901. 24 As regards personal bar generally see further discussion in Elspeth Reid, ‘ Protecting legitimate expectations and estoppel in Scots Law ’, vol. 10.3 Electronic Journal of Comparative Law, (December 2006) which brings focus notably on the use of personal bar in Scots Law of voluntary obligations and more generally E C Reid and J W G Blackie, Personal Bar, (Scottish Universities’ Law Institute, W. Green, 2006). See also, on the differences between personal bar and estoppel, the opinion of Lord Keith in Armia v. Dejan 1979 S.C.(HL) 56. 25 See response to Part II infra. 26 The meaning of foro contentioso emerges from a consideration of the judicial and other writings on res judicata in Scotland; in principle a judgment is in foro contentioso provided that litis contestatio has been joined and the subsequent procedure is sufficient to resolve or decide the legal or factual issues raised in the case. It has been held that what is required for litis contestation to be joined is for defences to be lodged – see Esso Petroleum Co v. Law , 1956 S.C. 33. Further discussion of when a judgment is given in foro contentioso can be found below – see footnote 42 - where the difference between a decree by default and a decree in absence is explained. See also, inter alios, Miller & Son v. Oliver & Boyd (1906) 8 F 390, per Lord Kinnear at 404—405, Farrans v. Roxburgh County Council 1969 S.L.T. 35 and Crudens v. Tayside Helath Board, 1979 S.C. 142. For an interesting literary use of the term see the following passage in Chapter 27 of ‘The Bride of Lammermoor’ by Walter Scott – “Sir William [Ashton] spoke at length of his high value and regard for his dear young friend, the Master of Ravenswood, and of his very high value and regard for the Marquis of A….., his very dear old friend; he trusted that any measures which they might adopt, in which he was concerned, would be carried on with due regard to the sanctity of decreets and judgments obtained in foro contentioso; protesting before men and angels that, if the law of Scotland, as declared in her supreme courts, were to undergo a reversal in the English House of Lords, the evils which would thence arise to the public would inflict a greater wound upon his heart than any loss he might himself sustain through such irregular proceedings.” 27 For a relatively recent and succinct analysis of res judicata, where nonetheless the plea was not upheld, see Sheriff Principal Dunlop’s judgment in Taylor v. Yorkshire Building Society cited above at Note 17. See also R.C.S 19.1 (7) and O.C.R. Chapter 30 Rule 7.5 as to the situations where a decree in absentia will be treated as a decree in foro contentioso after the elapse of a period of time. 28‘ Media Concludendi’ refers to the grounds of the action in fact and law; so a in a criminal case has been held not to found the plea of res judicata in subsequent proceedings of a disciplinary nature; see Robert Thomas v. the Council of the 2006 S.L.T. 184. It has also been held on the other hand that 12 identical with the issues raised in a subsequent case. What amounts to a final judgment for this purpose depends on what is actually decided and at what stage of the procedure. 29 In general the plea only applies if all questions raised in the earlier case have been dealt with by a proper judicial determination of the subject matter, usually after proof of evidence30. Another procedural factor in determining whether a judgment is final relates to the expiry of the days of appeal and this can also relate to the time within which a decree can normally be extracted, that is the formal order of the court for enforcement purposes is issued. 31 In the Court of Session an application for extract of a decision, order or interlocutor can precede the expiry of the reclaiming days 32 whereas in the Sheriff Court, in ordinary cause procedure, extracting can only take place after the days of appeal have expired 33. The determining date is therefore the expiry of the time for lodging an appeal since after that date in normal circumstances the decree is final and binding.34 Where a judgment, on which the plea of res judicata is sought to be based, deals with preliminary matters through pleas to the relevancy or competency and as a result the court upholds a plea that the action should not proceed in general or to the hearing of evidence, whether or not such a judgment shall have preclusive effect depends ultimately on what precisely was decided between the parties and what issues are raised subsequently in a following action. Therefore, whilst the plea of res judicata, in theory, is also capable of being applied where in the earlier action no proof was heard but matters were disposed of finally after a debate which effectively dealt with the legal basis of the case as pled in the action, in reality the plea of res judicata is rarely if ever sustained in such circumstances. For that to be so it would be necessary for the subsequent action to raise no new legal issues such that the ‘media concludendi’ in the first action on examination could be construed to have exhausted all matters including those raised in the subsequent action. There are many decisions on this point because the themes which emerge are variable depending on the precise circumstances of the case. 35 Where an earlier action dealt with all the issues raised, the plea will be applied even if it did so by settlement through agreement, such as through a minute of tender and acceptance, unless in a subsequent action new issues not dealt with in the earlier action were raised. 36 An agreement to go to arbitration will not elide the application of a plea of res judicata in relation to the arbitration of matters where these are the same as in an earlier litigation in which a final decree of absolvitor 37has been

a criminal conviction may be res judicata of certain matters of fact – see Wilson v. Murphy, 1936 S.L.T. 564. The Media Concludendi in any case emerge from an analysis of the issues raised and decided. See on this point further discussion infra. at Para. II.3.4 et seq. 29 See Edinburgh and District Water Trs. V. Clippens Oil Co Ltd. (1899) 1 F 899 per Lord Kinnnear at p. 909 as cited by Lord President Hope in Margrie Holdings v. City of Edinburgh District Council 1994, S.L.T. 971 at p. 974 et seq. 30 See for example, amongst the many cases on this point, Esso Petroleum Co. Ltd. v. Law cited supra at footnote 26. 31 See OCR Chapter 30 generally on decrees granted in Ordinary Cause Procedure in the Sheriff Court and R.C.S. Chapter 7 as regards the Court of Session 32 ‘The reclaiming days’ refers to the period within which appeal by way of a reclaiming motion needs to be lodged in the Court of Session; this period is normally twenty one days for interlocutors disposing of the merits – see R.C.S. 7.2 (1) and 38.3 (2)(b) – whereas application for an extract may be made after seven days and the fact that an extract has been issued does not preclude the reclaiming motion proceeding – see R.C.S. 7.1 (1) and 38.9. 33 See O.C.R. Rule 30.4. 34 See below as to circumstances where a final decree may be later subject to procedures whereby it ceases to be binding. 35 For an example of a case as to the situation where an earlier action is disposed of by a decree of dismissal on a preliminary plea see, amongst others, Stewart v. Greenock Harbour Trustees, (1868) 6 M 954. 36 See, for a recent description of the procedural implications of such a situation, the case of Forrest v. Hendry, 2000 S.C. 110 37 The procedural concept of Absolvitor is central to Scottish Civil cases; for a straightforward definition of the term in its juridical, as opposed to ecclesiastical, sense reference may be made to ‘ Scots Law Terms and Expressions’ 2nd. Edn. by J A Beaton, pub. by W. Green & Son, 1982; “A decree of absolvitor is one granted to the defender in a civil action. By pronouncing such a judgment the court absolves or decides finally in favour of the defender.” This is linked to the meaning of the Scottish technical term ‘Assoilzie’ defined to mean – “To free or decide finally in favour of the defender of a claim or charge”. Such an order will be granted generally after full and final consideration of the issues between parties where the court upholds the pleas of the defender or where an action settles and the parties are agreed that the court should grant a decree of absolvitor; and it can also be granted by 13 pronounced.38 Conversely where there has been a decision in an arbitration dealing with all questions submitted to an arbiter, this decision if complete and final may found the plea in subsequent court proceedings39 A binding and final order of the Sheriff Court may have the effect of res judicata in relation to a subsequent action in the Court of Session 40 and within the Sheriff Court a decree in a summary cause may have the effect of res judicata in a subsequent action 41. In the Scottish Land Court the plea of res judicata is applied generally in a specific context to preclude reconsideration by one divisional court of a decision by another. 42 The plea is also applied in tribunals in Scotland 43, but may be inapplicable by virtue of certain statutory rules of procedure 44. Whilst it is clearly established that decrees which are not pronounced in foro contentioso are not capable of founding the plea of res judicata it is not always clear what is the exact meaning of that expression. It is certainly the case that a decree in absence can never found the plea45 though it can be construed as being in foro contentioso in certain circumstances after a period of time 46. The lodging of defences in an ordinary cause action is sufficient to render the matter contentious, or provoke litis contestation in that court 47 , as also in the Court of Session but where an order is pronounced dismissing a case with no determination of the issues raised res judicata will not be applied 48. For this purpose a decree in an undefended action of divorce has been construed as being in absence even though evidence was led 49 . As well as a decree of dismissal where no matters have been decided in the earlier action, such as where an action is dismissed of consent following settlement 50 in general any order of the court of a procedural nature which does not amount to a disposal on the merits will not found res judicata. However it is clear that a decree by default can do so. Such an order will be granted where a party fails to obtemper a procedural order such as to lodge particular documents or attend at particular callings of a case though, in the Court of Session, not all such situations will found the plea of res judicata.51 In the Sheriff Court a decree by default as founding a decree of absolvitor will, in general, found the plea as also will a decree of absolvitor in both Court of Session and Sheriff Court. 52

TO DO :- Summary and answers to individual questions. Completion of foot-notes.

default as for example where the pursuer in an action fails to appear at a calling of a case or to obtemper a procedural order. For further examination of the concept, notably in contradistinction to a decree of dismissal in the context of res judicata vide infra. at paragraph II.3.2 and the case of Waydale cited infra.at footnote 48. 38 See Glasgow and South Western Railway Company v. Boyd & Forrest, 1918 S.C (H.L.) 14 per Ld Dunedin at pp. 26 and 27. 39 See on this point Crudens v. Tayside Health Board, 1979 S.C 142. 40 See Pollock v. Thomson, (1858) 21 D. 173 and Hynds v. Hynds, 1966 S.C. 201. 41 See McPhee v. Heatherwick, 1977 S.L.T. (Sh. Ct.) 46 as followed in Irving v. Hiddleston, 1998 S. L. T. 912. 42 See Sutherland v. MacLeod, 2000 S.L.C.R. 18 (Land Ct.). The Scottish Land Court jurisdiction is applied in rural and agricultural situations such as Crofting Townships where it is frequently the case that one decision may have far reaching consequences for the township as a whole. 43 See, for example, British Airways v. Boyce, 2001 S.C. 510 a case before the Inner House arising form an employment appeal tribunal decision. 44 See Kennedy v. S, 1986 S.L.T. 679 concerning the Childrens’ Hearing system. 45 A decree in absence for this purpose is construed as being a decree in the Sheriff Court where defences are not lodged in Small Claim or Summary Cause procedure but in Ordinary Cause procedure where no notice of intention to defend has been lodged. In the Court of Session a decree in absence is one where no answers are lodged by the Defender. 46 See the reference to procedure rules in footnote 27 supra. 47 See Esso Petroleum v. Law cited supra. at footnote 27. 48 See Waydale v. D.H.L. Holdings (UK) Ltd. (No. 2), 2000 S.C. 172 and cases cited therein. 49 See Paterson v. Paterson, 1958 S.C. 141. 50 See Margrie cited supra at footnote 27. 51 See on this point RCS 20 and the annotations thereto by Sheriff Nigel Morrison .C. et al. in Green’s Annotated Rules of the Court of Session reprinted from the Parliament House Book. 52 See the discussion in Waydale cited supra. at footnote 48. 14 Judgments that are capable of having preclusive effects Please identify and describe (1) the types and characteristics of judgments in your legal system that are capable of having preclusive effect and (2) any types of judgments that are not capable of having preclusive effects.

15

II. Preclusive effects

This part of the questionnaire is concerned with the effects of a judgment (including, for this purpose, any statement of the reasons given for a judgment) insofar as it restricts the ability of the participants in the proceedings in which it was given, or related or non-related persons, to bring or conduct later proceedings (whether or not forming part of the same action) as they would wish. In particular, this section is concerned with so-called rules of "res judicata" or their equivalent. References to "Claimant" are to the person seeking a remedy from the court, and references to "Defendant" are to the person against whom a remedy is sought.53 The terminology used in this intended for guidance only and is not intended to exclude or restrict discussion of the legal concepts and terms which are relevant to your legal system. This section is not concerned with the evidential status of the record of judgment, nor with the value of judgments as a legal precedent for future cases (stare decisis), both of which fall outside the scope of this Project. For the purpose of drafting the questionnaire, a distinction has been drawn between "claim preclusive effects" (see Part II.A) and "issue preclusive effects" (see Part II.B). These are intended to be descriptive categories, the former (which might also be described as "same claim preclusion") embracing rules of preclusion affecting the raising of claims which a legal system considers to have been determined in earlier proceedings and the latter embracing rules of preclusion affecting attempts to re-open issues of law or fact which a legal system regards as having already been determined in earlier proceedings. A third category of "wider preclusive effects" has been used (see Part II.C) to accommodate rules of preclusion which are considered to fall into neither of these categories. Those co-ordinating the Project recognise, however, that different legal systems will approach the categorisation differently depending on how they define the concepts of “claim” and “issue”, and that terminology will vary (e.g. in England, reference is made to " estoppel", "issue estoppel" and to various other rules, including "abuse of process"). Rapporteurs are thus encouraged to be flexible and to fit their description of the law and practice of their legal system into the framework established below as they think most appropriate.

II.1 General Introduction:- II.1.1 As noted above 54 the Scottish doctrine of Res Judicata is unified in so far as concerns its application to what are described herein as ‘claim’ and ‘issue’ preclusion and the following description of the various applications of the doctrine in Scotland is therefore also unified. Regards has to be had also to other matters in considering in general the scope of what might be described as Res Judiciata in certain legal systems but which are dealt with in Scotland in other ways. II.1.2 It will be necessary therefore also to mention the theory and practice of the plea of ‘competent and omitted’ as regards matters not raised in earlier litigation by a defender which are sought to be raised subsequently since the policy background to the pea is similar to that for Res Judicata. II.1.3 Mention will also be made of the Scottish approach to abuse of process which concerns the existence or otherwise of an inherent power of the court to prevent litigation which may be clearly intended to re-raise issues which have already been decided by a competent court in a way which is abusive of the procedures of the Scottish courts. II.1.4 Finally in this section it is necessary to comment albeit briefly on statutory provisions for dealing with persons characterised as Vexatious Litigants.

II.2 Res Judicata:- Nature and Background Sources:- II.2.1 The doctrine of Res Judicata is of long duration in the Law of Scotland. Some early cases recorded in the collections note the existence of the plea 55 and it was developed progressively in the case law of

53 Thus, for example, a person named as Defendant in legal proceedings who advances a counterclaim should be treated as "Defendant" for the purposes of the main claim against him (including, for example, any true defence of set-off) and "Claimant" for the purposes of the counterclaim. 54 See the first paragraph in section I C 55 See, for example, the case of the king’s v. Morison, March 8 1623, reported in Haddington’s MS as No.2805 and in Morrison’s Dictionary Vol. XVI as No. 33. This case concerned an attempt by the defender to plead Res Judicata against prosecution for usury after he had successfully recovered an amount advanced to Douglas of 16 the Court of Session in the Seventeenth and Eighteenth centuries. Though it is beyond the scope of this Report to investigate the historical origins of the plea under the Law of Scotland, it seems clearly to derive from influences in the continental traditions. II.2.2 The first discussion of the plea in the literature comes in Stair’s Institutes where the plea is touched on both in the context of an outline of Procedure in ordinary actions 56 and in relation to the power and capacity of the Lords of Council and Session to reduce their own decrees 57 where the passages reflect substantial concerns that there should be no repetition of litigation endlessly and propound the virtues of finality in litigation 58. Stair describes the plea as an exception 59 and notes that it can apply to prevent a pursuer from re-raising an action where even in the absence of a defender a decree of absolvitor is pronounced in favour of the defender. 60 II.2.3 The plea is also discussed in Erskine’s Institutes 61 where it is linked into the right of superior courts to review the decrees of inferior courts 62 but the following discussion is recognisable in having quite a number of the central themes of the modern plea. 63 One major difference however is to be seen in the proposition that a decree in an inferior court can not operate res judicata as regards the Supreme Court to the effect of preventing a defender form pleading before the latter a defence which was not pled before the former. 64 II.2.4 However much the Institutional writers may have begun the discussion of the plea of Res Judicata and that there are various mentions of the plea over the years in various manuals and text-books, mainly relating to Civil procedure 65, there has never published in Scotland a comprehensive work focussing alone on Res Judicata as a subject in its own right. 66 The result is that the sources for a consideration of the doctrine and its related pleas are mainly in the reported cases and such academic and practitioner articles as are available. The subject has surprisingly attracted little academic interest over the years most notably in an international context.67 It is also remarkably free of statutory intervention apart from that

Mains subject to an interest rate of more than 10% which was illegal in Scotland at the time. Though not a typical case it shows the deployment of the plea and in an interesting juxtaposition between civil and criminal process. 56 See An Institute of the Laws of Scotland by Viscount Stair , Book IV.xxv.7 et seq. 57 See op. cit. Book IV.i.44 et seq. 58 See op. cit. Book IV.i.47 and the discussion round the maxim ‘Lis est sopita, lis est finita, res judicata pro veritate habetur, praesumptione juris et de jure’ which, though referring to the finality of process following reference to oath of the parties, sets ut clearly the policy behind the plea namely to prevent continuous and continuing litigations . The following paragraph, i.48, outlines the proposition, somewhat doubtful perhaps, that the Lords will not even reduce a decree if perjury is proved subsequently, though earlier at paragraph i.45 Stair discusses the need for finality in the hearing and testing of the veracity of witnesses in foro in the same context. 5959 See Book IV.xxv.7 – ‘This [Exceptio rei judicatae] …. lies, where the case was formerly judged between the parties, or their authors, is sought to be judged again, while that judgment remains unreversed; for it cannot be brought under cognizance again, the rule being, that Res judicata pro veritate habetur, the judgment of a court is held to be true and just.’ Almost immediately Stair draws attention to the difference in treatment between pursuers and defenders as regards the plea of competent and omitted which is discussed further later in this report. 60 See Book IV.25.9. This is of the utmost significance as shall be seen from the following discussion on the modern Scottish cases. 61 See an Institute of the Law of Scotland by John Erskine, esq.; of Carnock, Advocate , Book IV.iii, 1 et seq. There is an interesting passage at the beginning of the discussion which shows that the focus of the policy by Erskine’s time, around one hundred years after Stair’s Institutes were in preparation, had shifted from the power and authority of the court to the need for certainty in a more commercial world:- ‘ That property may not continue for ever fluctuating and precarious, which must have been the case if debatable points might, after receiving definitive judgment, be brought again into question at the pleasure of either of the parties, every state has affixed the character of final, or irreversible, to certain sentences or decrees, which in the Roman law are called res judicatae, and which exclude all rehearing or review, either of the court that hath pronounced the or of any other. 62 Op. cit. Book IV.iii.2. 63 Op. cit. Book IV.iii. to vi. So there is discussion as to the identity of the parties, the media concludendi, the need for the decree to have been pronounced in foro contradictorio and not in the absence of the defender. 64 Op. cit. Book IV.iii.7. This is not the current position. 65 See for examples of the most cited works, MacLaren, MacPhail, Lees, Encyclopedias, Gloag and Henderson etc DN work this footnote up with the references. 66 There is thus no equivalent in Scotland to the comprehensive work provided by Peter Barnett DN complete this footnote. 67 A major exception to this proposition is to be found in ‘Private International Law’ by Professor A.E. Anton the Second Edition of which, published by W. Green in 1990 and co-written with Paul Beaumont, contains useful and 17 influenced chiefly by the Brussels and Lugano Conventions and now the Regulation Brussels I 68 and the Foreign Judgments Reciprocal Enforcement Act 1933.

II.3 Res Judicata:- Nature and effects in the current law :- the classic formulation II.3.1 Consideration of Res Judicata in the Law of Scotland is most conveniently based on an examination of the cases on the subject in order to extract the key propositions as to the conditions for deployment of and effects of the plea. Not surprisingly analysis of the doctrine is most frequently conducted on the basis of the use of the plea as a defence and in most of the cases the courts have considered it in the procedural context of an attempt to re-raise in subsequent proceedings issues argued to have been determined already in earlier proceedings. However use of the plea is not restricted to such situations and others will be noted as they occur.69 II.3.2 The classic formulation of the basis of the plea is to be found expressed and collated in a number of reference text books and cases. 70 For the plea to be upheld the following factors need to be present;- II.3.2.1 The prior determination must have been made by a competent tribunal. 71 A judgment of a foreign court 72, an ‘inferior’ court such as the Sheriff Court 73, and within the Sheriff Court a summary caiuse judgment may have the force of res judicata as regards a subsequent action under Ordinary Cause procedure in the Sheriff Court 74 or in the Court of Session 75. A tribunal decision can be res judicata of a subsequent case in the court 76, a plea of res judicata can be applied in the Scottish Land Court 77 and where the same parties are involved the ground of action and the remedy are the same a judgment in a

succinct passages on the subject in an international context at pp. 234 to 237. This book is cited hereinafter as ‘Anton with Beaumont’. See also the Articles by Paul Beaumont published in 1985 S.L.T. (news) at pp. 133 and 141 68 DN Footnote to cite the texts in question and the relevant part of the 1982 and 1933 Acts 69 A statement of the Scottish position on Res Judicata which has been adopted or commented on favourably in a number of judicial decisions is to be found in Maclaren on Court of Session Practice pp. 396 to 401. Res Judicata is also treated in MacPhail on Sheriff Court Practice, 3rd. Edn. 2006 T. Welsh Ed., hereafter cited as ‘MacPhail op.cit.’. A short but valuable note on the subject is to be found at p. C 161 in the Rules of the Court of Session 2007-2008 annotated by Sheriff Nigel Morrison Q.C. et al., commenting on R.C.S. 18.1 (Form and Lodging of defences). Other statements, whilst mostly historical, containing important background information and case references, can be found in Green’s Encyclopedia of the Laws of Scotland, 1931, at pp. 550 to 569, MacKay’s Practice of the Court of Session (T& T Clark 1877) at pp. 588/9. Also, as regards foreign judgments, see Anton with Beaumont op. cit at footnote 67 supra. 70 See variously, among the many cases where res judicata has been considered, Stewart v. Greenock Harbour Trustees (1868) 6 M 954, Edinburgh and District Water Trustees v. Clippens Oil Co. Ltd., 1899, 1 F. 899, Glasgow and South Western Railway Company v. Boyd & Forrest, 1918 S.C. (HL) 14, Graham v. Secretary of State for Scotland, 1951 S.C. 368, Esso Petroleum Co. v. Law 1956 S.C. 33, Margrie Holdings Ltd. V. City of Edinburgh District Council, 1994 S.C 1, Forrest v. Hendry 2000 S.C. 110 see also Waydale infra.at footnote 87. 71 MacPhail para. 2.105, Maclaren p. 396/7 – “ …….. a judgment by a court which has no jurisdiction is not res judicata.” See also Earl of Lauderdale v. Scrymgeour Wedderburn, 1910 S.C. (HL) 35. 72 An early example is the case of Hamilton v. the Dutch East India Co decided on 24th July 1731, and reported (1732) Morrison’s Dictionary, 4548 and 1 Paton’s Appeals 69. See also Anton with Beaumont p 234 et seq. 73 See Murray v. Seath 1939 S.L.T. 348, Hynds v. Hynds 1966 S.C. 201 and Anderson v. Wilson 1972 S.L.T. 170 per Lord Keith at p. 171 and 1972 S.C. 147 at p. 149. Anderson was a case which turned on the apportionment of liability for damages due to the pursuer in an action for personal injuries following a road traffic accident. In rejecting a plea of res judicata on behalf of the defender in the action, the driver of a mini-bus in which the pursuer had been travelling when the accident occurred, Lord Keith accepted, partly on the basis of and as a result of agreement between the parties, it to be settled law that a decision on the question of apportionment of liability in an action in the Sheriff Court arising out of the same accident at the instance of another passenger in the bus could have founded a plea of res judicata for the action before him in the Court of Session provided that the other conditions for the plea had been met. 74 See McPhee v. Heatherwick, 1977 1977 S.L.T. (Sh.Ct.) 46 75 See Irving v. Hiddleston, 1998 S.L.T. 912 per Lord Macfadyen at p. 919. 76 It is likely that that would be the case given the remarks of the court in British Airways plc v. Boyce (2) 2001 S.C. 510; see further on this case below DN ref to subsequ. para 77 Within the Scottish Land Court a plea of res judicata may be upheld in a divisional court as regards a decision of another divisional court ; see Sutherland v. MacLeod 2000 S.L. C.R. (Land Court) 18. 18 criminal court may be res judicata in a civil action. 78 The decision of an arbiter which is complete on the matters raised and final can found the plea in a subsequent court action 79 II.3.2.2 The prior determination must have been pronounced in foro contentioso 80 without fraud or collusion. What is to be construed as being a decision foro contentioso for this purpose is be determined on the basis of the pleas of the parties and the decision of the court. It has been decided authoritatively that a proper judicial decision on the merits is necessary to found the plea 81 so that a settlement agreed in an earlier case will not operate as res judicata in a subsequent action between the same parties based on a different ground. A decree in absence as noted above 82 will not found the plea 83 nor will an undefended divorce decree 84. II.3.2.2.1 Perhaps the most difficult and frequently discussed issue on this aspect of the plea is that of the precise order of the court in the earlier action on which the plea is founded. Here much of the recent case law has focussed on the distinction between decrees of dismissal for varying reasons and those of absolvitor on the proposition that in principle a decree of dismissal can not found the plea of res judicata whereas a decree of absolvitor usually can. 85 II.3.2.2.2 Among the many cases on this aspect of res judicata in Scotland, starting with those reported in the earliest collections of decisions 86 perhaps the most helpful of the recent leading cases on the subject in recent years is that of Waydale Ltd. V. DHL Holdings UK) Limited because the court took the opportunity, in considering the defenders’ plea on the matter, to review some of the recent history and case law applicable to the plea and so provide a reasonably comprehensive survey of the law and practice of res judicata under the Law of Scotland. 87 II.3.2.2.3 In summary the case was about an attempt by the owner and landlord of industrial premises at Uddingston, just to the South of Glasgow, to enforce a cautionary obligation in the form of a guarantee granted by the defender company in respect of the obligations of tenants of the premises. The subjects of the lease had previously been owned by a government agency, Scottish Development Agency, in whose favour the cautionary obligation had originally been granted and the tenants, subsequent to the disposal by SDA of the subjects to the Pursuers in 1993, became insolvent in 1994. II.3.2.2.4 The first action in the series was commenced shortly after the tenants had become insolvent and in it the pursuers sought to recover monies due and resting owing by the insolvent tenants on the basis of the cautionary obligation granted to SDA by the defenders. Unfortunately for the pursuers and for reasons not disclosed in the report of the case, the Pursuers had failed to obtain an assignation from SDA of the cautionary obligation and had also failed to intimate an assignation thereof to the defenders as they

This is exceptional , see Mc Phee cit. supra. at footnote 41. Theconverse is however not supported namely a finding of not guilty or in a criminal case is not res judicata of a subsequent civil action; see MacPhail op. cit.citing MacPhail, ‘Evidence’ at paras. 11.18 to 11.19A. The main reason is that the standard of proof in criminal cases in Scotland and the evidential requirements, notably on sufficiency, are higher in criminal than in civil cases. 79 See MacPhail op. cit. para 2.105 on p. 76 and cases cited there at footnote 91. 80 See MacPhail para. 2.106, Maclaren p.396 and supra. footnote 26. 81 See amongst others, Margrie Holdings Ltd. v. City of Edinburgh District Council 1994 S.C.1 where the Lord President (Hope) said, at p 7, - “It may seem strange that the pursuers, having settled the first action on receipt of the principal sum together with interest at the judicial rate, should now be seeking reimbursement of further amounts of interest on the same sum. But the pursuers have made it clear in their averments that their calculations are intended to give to the defenders full credit for the amounts which have already been paid. There is, therefore, no overlap between the two claims, and there is no suggestion that the pursuers are barred{sic}, either by the terms of the settlement or by words or conduct, from pursuing the further claims made in the present action. The issue is simply one of competency, and it is a sufficient answer to the plea [of res judicata] that the claims made in this action are based on an entirely separate ground……..”. 82 Note to previous treatment on foro contentioso 83 See Esso Petroleum Co v. Law 1956 S.C. 33. 84 See Paterson v. Paterson 1958 S.C. 141. 85 For an outline of the distinction from the procedural perspective vide supra. 86 See footnote 57 supra. Cases on res judicata appear in all the early collections of Scottish Decisions; DN give examples. 87 The decision was given by the Inner House in an extra division comprising Lords Coulsfield, who delivered the opinion, Osborne and Morison on an appeal from the Outer House (Lord Hamilton). The writer has also derived considerable benefit from reading the judgment of Sheriff Principal Dunlop (Tayside, Central and Fife) in the case of Taylor v. Yorkshire Building Society, 2007 S.L.T. (Sh.Ct.) 117, also cited above on another point at Footnote 16. 19 had to do to render it enforceable against the defenders. 88 It was also argued that the cautionary obligation was in any event not assignable without the consent of the defenders because of the element of delectus personae as regards the landlord 89and in any event no consent had been sought nor given. In these circumstances the action was dismissed by Lord Penrose sitting as a commercial judge. II.3.2.2.5 Following dismissal of the action by Lord Penrose the pursuers sought to appeal and indeed lodged a motion for review of Lord Penrose’ interlocutor in which he dismissed the action. Before the appeal could be heard however, the pursuers sought and obtained an assignation of the guarantee which they then intimated to the defenders. The pursuers dropped their Motion for review of the interlocutor and proceeded to raise another action which was immediately met by the plea of res judicata. The second action was dealt with at first instance by Lord Hamilton 90 who felt unable to dismiss the defenders’ plea of res judicata merely because the earlier action had been dismissed but went on to consider that that plea could not be upheld without further enquiry. 91 II.3.2.2.6 In the Inner House an extra Division heard the appeal by the defenders and also by the pursuers who also, in effect, appealed the decision of Lord Hamilton by seeking an order to the effect that the dismissal of an action could never found the plea of res judicata as he had left this point open. As a result the argument between the parties was polarised around this proposition and, conversely, as to whether a decree of absolvitor could always found the plea. Matters were argued rather more broadly however as within these prepositions were various points about the nature and effect of res judicata as well as substantive issues on the merits of the action itself. Lord Coulsfield, who delivered the opinion, took the trouble therefore to outline the principles of res judicata starting with consideration as to whether in the original action the court had given any consideration to the real matters in dispute concerning the assignability and enforceability of the guarantee. II.3.2.2.7 The essential question for the court as to whether a decree of dismissal could found a plea of res judicata arose from the very nature and principle of the plea, namely that where the substantial merits of the cause have already been decided in a competent court in an action between the same parties, or parties having a like interest, they should not be again adjudicated upon. 92 The policy behind the plea, he added, reflected public policy notably that a person should not be subjected to a second action upon the same grounds. Lord Coulsfield went on to quote the first test of the applicability of the plea as set out in MacLaren as follows:- 93 “In order that any previous judgment may found a plea of res judicata in a subsequent cause the following circumstances must concur: (1) there must be a proper judicial determination of the subject in question. Hence a decree in absence, or a decree founded on a compromise, or a decree of dismissal on the ground of incompetency or irrelevancy will not found the plea nor will the mere opinions of judges on questions not raised in the previous case or not concurred in by the majority of the court.” II.3.2.2.8 The opinion then goes on to examine the various authorities cited in MacLaren to support this proposition and reaches the conclusion, having regard to the circumstances of the case and to variouis judicial comments on the earlier cases that the plea should not be sustained. 94 In the end the Court in

88 Under the Law of Scotland for an obligation which is assigned from one creditor to another to be enforceable by the assignee against an obligant the assignation must be intimated to the latter before action is taken to secure any performance of the obligation. 89 Delectus personae under the Law of Scotland involves the idea that an obligation is entered into by a party in reliance to an extent on the personal qualities or identity of another party. It is particularly applicable in contracts for the tenancy of property or insurance and implies that the contract is not able to be assigned without the consent of that party who is reliant on the delectus personae of the other party. In Waydale the court held that whether or not there was an element of delectus personae which required the consent of the cautioner to the assignation of the cautionary obligation was a matter of substance in the dispute between the parties which had not been decided in the earlier action and was therefore at large for judicial decision hence indicating that the plea of res judicata should not be upheld. 90 Lord Hamilton is now the Lord President of the Court of Session but at the time was sitting as an Outer House judge an done of the nominated commercial judges. 91 Lord Hamilton’s judgment is reported at 1999 S.L.T. p. 631. 92 Lord Coulsfield adopted the first part of the description of the plea in MacLaren on Court of Session Practice at p. 396. He then went on to examine in detail the various cases founded on by MacLaren in formulating his propositions. 93 Quoted by Lord Coulsfield at p. 177. 94 See, notably, the passage in the report at pp. 179 I to 180 E in which Lord Coulsfield analyses various aspects of the earlier case of Menzies v. Menzies (1893) 20 R (HL) 108. In Menzies Lord Watson is reported as saying – “The 20 Waydale had little difficulty in re-asserting that a decree of dismissal did not found the plea of res judicata because the issues at large on the merits were not decided in the earlier case and endorsed strongly the rule expressed by Lord Deas in Stewart v. Greenock Harbour Trustees 95 .Lord Coulsfield summed the position up as follows:- 96 ‘It is easily possible also to figure a good plea of res judicata in the case of a fresh action containing what is in substance a mere repetition of the averments in an action disposed of by dismissal. But in the plain and ordinary case such as the present is, the rule of law prevents the duplication or multiplication of legal proceedings. That rule was thus expressed in the language of Lord Deas in Stewart v. Greenock Harbour Trustees when he said – “We have had this matter again and again before us, and if there be a distinction established in our practice, it is, that the word ‘dismiss’ is used when it is open to the party to bring another action and the word ‘assoilzie’ when it is not open” ‘. II.3.2.2.9 The central procedural proposition was stated by the court in the following terms:- 97 ‘The opportunity which our [that is Scottish] procedure affords of taking a plea to the relevancy enables a defender to have an action against him dismissed without the necessity of going to proof but it is not unreasonable that when advantage is taken of that opportunity, the decision should be subject to the possibility of a further action being raised’. In effect what the court was saying was to reiterate the earlier dicta to the effect that the Scottish courts will uphold the plea only where it is clear that the issues raised in a subsequent action were not the subject of a final judicial determination whether by court decision or by agreement ion an earlier action between the same parties. II.3.3 The subject-matter of the two actions must be the same. 98 II.3.3.1 MacLaren sets out this further test in the following terms:- ‘It is not sufficient that the same point has previously been determined in former proceedings between the same parties, but it is necessary that the same subject-matter should have been disposed of by the judgment’. The cases cited by Maclaren in support of this proposition reflect very particular situations and it is necessary in considering this point to have regard to the more recent decisions. II.3.3.2 So, for example, in Anderson v. Wilson 99 the circumstances were that there had been a road traffic accident between a car and a mini-bus in which six people travelling in the mini-bus were injured; the driver of the car was killed in the accident. Five of the injured raised an action of damages for personal injuries against the owner of the bus on the grounds of the fault of the driver of that vehicle and the vicarious responsibility of the owner by whom the driver had been employed. The owner as defender called as a third party in the action a person who had been appointed as judicial factor 100on the estate of the deceased car driver and the main issue which arose in the litigation was the apportionment of the liability of the defender and the judicial factor as representing the estate of the late driver. II.3.3.3 The defender took a plea of res judicata on this point on the basis of a decision of the Sheriff Court reached in an earlier action against the defender by the sixth paasener in the mini-bus ( a Mrs Morris) in which the court had apportioned liability between him and the late driver on the basis that each was at fault in certain measure and it was agreed in the subsequent action that the Sheriff court action had concluded with liability being shared one-third to the defender, owner of the bus, and two-thirds to the judicial factor for the late driver. The defender claimed that the Sheriff Court decision was res judicata on the matter. II.3.3.4 Lord Keith repelled the defender’s plea and allowed the matter to go to further procedure. The key parts of the analysis of the cases which lay the basis of his decision proceeded upon the analogical basis dismissal of an action upon relevancy, without any enquiry into the merits, can never be res judicata. Commenting on this Lord Coulsfield in Waydale states the following:- “The context of that remark is, in our view, very important. As the report shows, the very point on which the Second Division had held that the plea of res judicata could be maintained was that a decision to dismiss an action as irrelevant could be founded on as res judicata in a subsequent action in which the averments or the facts found were the same as the averments in the action which had been dismissed. That seems to us to be precisely the position which the defenders are adopting in the present case and it is precisely the position which Lord Watson was at pains to negative.” 95 (1868) 6 M 954. 96 At p. 182 G. 97 At p. 184 B. 98 See MacPhail op. cit at para. 2.107 and Maclaren op.cit. at p. 399, para. (iii.). 99 1972 S.C. 147. See footnote 73 supra. 100 A judicial factor is person appointed by the Court to manage the affairs of another person who may be deceased or insolvent or both. 21 that the defender would have had to raise a separate action against the judicial factor had he not brought the latter in as a third party and in such a situation it would certainly have been open to the judicial factor to open up the question of apportionment. 101 II.3.3.5 It is no surprise to find in the following passage of Lord Keith’s judgment a reference to the very well known dictum of Lord President Cooper in Grahame v. Secretary of State for Scotland 102:- “The plea [of res judicata] is common to most legal systems, and is based upon considerations of public policy, and common sense, which will not tolerate that the same issue should be litigated repeatedly between the same parties on substantially the same basis. I use the word ‘substantially’ advisedly; for a tendency which can be detected in earlier Scottish cases to concentrate too narrowly upon the precise terms of the conclusions of a summons or of pleas in law was corrected in the third Boyd & Forrest appeal 103, in which we were directed to look at the essence and reality of the matter rather than the technical form, and simply to inquire –‘What was litigated and what was decided?’” II.3.3.6 This formulation of the test as to identity of subject matter is to be found in many of the reports, 104 and is perhaps the central fulcrum round which the principles of res judicata are applied in Scotland. Another interesting formulation of this occurred recently in a Sheriff Court decision by Sheriff Principal Dunlop of the Sheriffdom of Tayside, Central and Fife in the case of Taylor v. Yorkshire Building Society 105 where the Sheriff Principal set out the four criteria succinctly as follows:- 106 “According to Maclaren, a previous judgment may found a plea of res judicata in a subsequent action if the following circumstances concur: (a) there must be a proper judicial determination of the subject in question; (b) the parties to the second cause must be identical with, or representative of, the parties to the first cause, or their interests must be the same; (c) there must be identity of subject matter; and (d) there must be identity of media concludendi...” In this the Sheriff Principal was following the passage in Maclaren on the subject of the criteria which must occur for the plea of res judicata to be established 107 and he then went on to note that the

101 Lord Keith, at p. 149, following the analysis presented in Maclaren op. cit at pp. 397 -400, argued on this point as follows:- “It may be of some assistance towards focussing the point if there is to be postulated a situation somewhat different from that which actually exists. Supposing that the defender had not called the third party into the present process, and the pursuers had obtained decrees of damages against the defender, and subsequently the defender had sued the third party for contribution in a separate action, would the third party have been barred by res judicata from maintaining in that action either that he was under no liability at all, or that his liability was for less than two-thirds of the damages awarded to the pursuers? Prima facie I would be inclined to answer that question in the negative, on the ground that, accepting that the parties litigating the issue were identical with those litigating the corresponding issue in Mrs Morris’s action [in the Sheriff Court], the subject-matter and also the medium concludendi in the two actions were different. The subject-matter of the second action would be the defender’s right to recover from the third party in respect of loss, damage and injury sustained not by Mrs Morris but by the present pursuers; and the medium concludendi in the second action would be that the third party had failed in a duty of care owed not to Mrs Morris but to the present pursuers.” In other words to establish whether the subject matters of the two actions is identical regard must be had to all the circumstances including the relative rights and liabilities of the parties as argued in law and not just to the basis in law on which the actions proceeded. 102 1951 S.C. 368 at p. 387. 103 Cited, inter alios, at footnote 70 supra. 104 See, for example, British Airways v. Boyce, 2001 S.C. 510, Short’s Trustee v. Chung (No. 2), 1999 S.C. 471 per Lord Prosser and Forrest v. Hendry, 2000 S.C. 110. See also the case of Esso Petroleum Co. v. Law, 1956 S.C. 33 where Lord Carmont, in characteristically trenchant mode, advocated a similar approach to res judicata, the principles of which, as he noted (at p. 37), ‘….are broadly based on common sense and equity….’ , to identify the essence of the state of the litigations in question and the issues involved:- “It is contrary to public policy, as has been said, that a man should be vexed twice for the same cause. All legal systems agree in this, and, although there may be nice questions presented in certain cases, the broad principles of res judicata are not in doubt. There must have been an antecedent judicial decree of a competent tribunal, pronounced in foro contentioso between the same parties (or their authors) relative to the same subject -matter and proceeding on the same grounds. I do not see how the defender in the present case can introduce the principle of res judicata by invoking the mere language of the Sheriff Court code and extracting therefrom the conclusion that a decision was in foro although it was plain that the antecedent case had never been met by the putting forward of defences.”. 105 Cited supra at footnotes 16 and 67. 106 At para. [8]. 107 Op. cit. at pp. 396 to 400. 22 approach in Maclaren is supported in Macphail, Sheriff Court Practice 108 and as did Lord Coulsfield in Waydale, recognised further that the approach in Maclaren had been judicially referred to with approval on a number of occasions.109 II.3.3.7The Sheriff Principal was obliged to consider whether there was identity of subject matter between the antecedent and present actions because of the circumstances of the case. This was an appeal from a small claim in which the pursuer, a customer of the defenders, had sought repetition of sums of money paid by him in charges which, he contended, amounted to a penalty or and therefore were not properly recoverable by the defenders under the law of Scotland. In an earlier small claim action the pursuer had succeeded in obtaining payment from the defenders of sums in respect of a particular period; that action ended in an order of the court being granted to the pursuer but only for the expenses of the claim. The pursuer in the present action now attempted to recover charges fro a different period and this action was met by a plea of res judicata from the defenders founding on the decree in the earlier action. This plea had been upheld at first instance by the Sheriff. II.3.3.8 In order to address the question as to whether the tees as to identity of subject matter was met the Sheriff Principal began by noting the statement in Clippens reiterated in Grahame and British Airways that the question to be asked was – ‘What was litigated and what was decided’ .110 The Sheriff Principal then continued – “Subject matter and media concludendi are both essential to the definition of what was litigated and in addressing that question therefore I think it is important that one should not lose sight of the distinction between them. That there is a distinction is amply vouched.” He added later 111 - “The position is perhaps summarised most clearly in Hynds v. Hynds, 1966 S.C.; 1966 S.L.T. 282 at p. 203 (p. 284), when the said: ‘There must be identity of subject-matter as well as identity of media concludendi and the two are obviously not the same nor do they refer to the same thing.’”. II.3.3.9 Based on this approach the Sheriff Principal analysed the nature of the contract between the parties and concluded that the subject matter of the two actions was different because each time the defenders at their own hands applied a charge to the pursuer’s account, which under the law they were not entitled to do in so far as these charges represented a penalty rather than a genuine pre-estimate of the damages incurred by the defenders through the pursuer’s breach of the terms of the contract between the parties , there arose a separate cause of action. 112 II.3.3.10 Although this was a Sheriff Court case it can be taken that the views expressed by the Sheriff Principal remain the settled position at the moment in Scotland as regards the test of identity of subject matter as also on the distinction between that test and the test of identity of medium concludendi. However there is another aspect of this debate which raises and has raised interesting points of comparison between the application of res judicata as between the Scottish and English . II.3.3.11 In Anderson 113 Lord Keith was invited by the defender’s counsel to adopt some of the reasoning on issue estoppel thought to be revealed in a number of cases referred to the court. 114 However he came to the following conclusion in declining to accept counsel’s invitation to follow any of these decisions; - “Having considered these diverging views from south of the Border, I have come to feel that that of Lawton, J. in Randolph v. Tuck appears most in consonance with the principles of res judicata as formulated in Scots law. I do not profess to have a full understanding of the English concept of estoppel, and it may be that the procedural system in England involves some significant specialities. In the circumstances I have concluded that I can derive no real assistance from the English decisions.

108 3rd. Edn., edited by Sheriff T. Welsh Q.C., paras. 2.104 to 2.108. 109 Amongst the cases in which the four tests set out in Maclaren had been approved judicially as representing the settled law of Scotland, noted Sheriff Principle Dunlop, included Anderson v. Wilson, and the earler case of Murray v. Seath, 1939 S.L.T. 348. 110 See para [16]. 111 At para. [18]. 112 The Sheriff Principal’s reasoning led him ultimately to the following conclusion:- “We are not dealing therefore with a single cause of action in respect of which the affected party ought to sue for damages in one action. Rather each deduction is a separate cause of action with the result that, provided none of the sums claimed in the present action were either claimed or recovered in the earlier action, the subject matter of each action was different. In that event the plea of res judicata is not available and should have been repelled.”. 113 Discussed above at paras. II.3.3.2 et seq. 114 The cases were Bell v. Holmes [1956] 1 W.L.R. 1359, Randolph v. Tuck [1962] 1Q.B. 175 and Wood v. Luscombe [1966] 1 Q.B. 169. It is not a function of this report to analyse these cases nor to place them in an appropriate context of the development of English doctrines of issue or claim estoppel. 23 I have come to be of opinion that to give effect to the defender’s argument in the present case would involve some departure from, or at least significant extension of, the principles which have hitherto governed res judicata in the law of Scotland. Further, I am not satisfied that there are considerations of public policy, equity and common sense such as to warrant making such a departure or extension, in the circumstances of this case.”. Lord Keith then went on to explain why in the circumstances of the case it would not be appropriate or indeed equitable to allow the plea to be sustained. II.3.3.12 It is a pity that his Lordship did not explain what he meant by ‘extension of the principles which have governed res judicata in the law of Scotland’. In the event it does seem that the question of identity of subject matter is not to be compared with issue estoppel 115. As far as this writer is aware there has only been one other decision reported in the Scottish cases which deals directly with the question as whether a doctrine equivalent to issue estoppel should be adopted in Scots law 116 in which Lord Cullen, in the Outer House, referring to Anderson, said – “ …there is no Scottish authority that anything equivalent to issue estoppel has ever been recognised. My attention was drawn to Anderson v. Wilson in which Lord Keith declined to sanction what he considered to be an extension of the principles governing res judicata in the law of Scotland. I find myself in the same position. I am not satisfied that in the law of Scotland, there is any authority for treating a finding in proceedings which dealt with a different claim, let alone a claim on different grounds, as determinative of that matter in later proceedings. “ Again there is in this decision no developed reasoning behind this statement even as to how the Scottish position might be considered against the original policy criteria on which res judicata is based in Scots law.117 II.3.3.13 Another issue related to this which has substantial significance in Scottish approaches to matters which in England are covered by issue estoppel arises in relation to the situation where a party who has been unable to persuade a court to accept arguments in a case subsequently seeks to raise other arguments or issues in another action against the same opponent. This is covered by two pleas in Scottish procedure; in relation to the situation where an unsuccessful defender seeks to raise new matters either in a defence or in an action in which that defender is the pursuer, the plea is ‘competent and omitted’. In this plea the opponent will argue that the issues being raised in the subsequent action were known to and could have been raised in the earlier process and accordingly, on the same principle as in res judicata which militates against repeated litigation, should not be admitted. II.3.3.14 The plea is long standing in Scottish procedure 118and is generally characterised as being separate from res judicata. However, as Professor Paul Beaumont noted in an article in 1985 119, it can be seen very much as similar to the plea in English practice characterised as the ‘might have pleaded’

115 See, for an analysis of the positions under the laws of Scotland and England, the Article by Paul Beaumont in 1985 S.L.T., (News) at pp. 133 and 141. In the second part of this two-part article Professor ( as he now is) Beaumont commented that Lord Keith’s decision in Anderson not to allow the plea of res judicata to prevent the question of apportionment of liability to be addressed in the action before him was a clear indication of the difference between the position in Scotland and England. He argued that in England the doctrine of issue estoppel would have been applied in Anderson to sustain the plea of res judicata as regards the question between the defender and the third party which had already been the subject of the earlier decision in the Sheriff Court. He concluded with an interesting discussion as to the relative merits of the two situations. 116 Clink v. Speyside Distillery Co Ltd, 1995 S.L.T. 117 In Clink the central issue reported was whether the pursuer’s claim for damages for breach of her contract of employment was res judicata following the rejection of her earlier claim before an industrial tribunal that she had been unfairly dismissed. In considering this Lord Cullen made clear that he considered that the subject matter or, as he phrased it, character of the two claims was rather different and so that criterion for sustaining the plea of res judicata was not present. This decision can hardly be criticised on grounds of equity since it is doubtful if the pursuer could have at that time raised the issue of breach of contract in the proceedings before the industrial tribunal. 118 DN Insert ref. to Stair etc. IV.i.50. 119 1985 S.L.T. (News) 345. This article followed the earlier two-part article on res judicata by the same author – see footnote 115 supra. – and arose as a result of a comment in that article to the effect that there was in Scottish doctrines of res judicata no equivalent to the rule under the English practice on issue estoppel whereby a party was barred from pleading in a subsequent action issues of fact and law which were germaine to and could have been pleaded as part of the subject matter of an earlier action. This rule, characterised in the article as the ‘might have pleaded rule’, arose at its earliest in Henderson v Henderson (1843) 3 Hare 100 reported the learned author, and had been extended quite widly , as he went on to note, to cover even situations where the parties in the two actions are not the same. Subsequent to the article appearing it was pointed out in a letter to the (1985 S.L.T. (News) 227) that the plea of competent and omitted in Scots law cold be seen to cover a fairly large part of the territory occupied by this aspect of the doctrine of issue estoppel in England and the subsequent article by Professor Beaumont was a response to that comment. 24 rule which is a part of issue estoppel it appears. However it is to an extent more limited for – “ A major difference between the pleas is, however, evident in relation to pursuers. A pursuer cannot be barred from bringing a second action against a defender which has the same object of claim if he relies on a new medium concludendi (ground of claim), even if he could have relied on that ground of claim in the first action 120 . A plantiff, however, can be barred from bringing a second action against a defendant which has the same cause of action (object of claim) even if he could, by exercising reasonable diligence, have relied on that issue in the first action.” II.3.3.15 The issues considered in the article and cases cited supplement the material already available in the books 121. In a case subsequent to the publication of the article 122Lord McCluskey, sitting in the Outer House, sustained a plea of competent and omitted against two pursuers who had sought production and reduction of a decree for payment to the defenders on which sequestration of the purusrs’ partnership had been founded. His Lordship held that – “ Whatever the reasons why the submission now advanced was not then [in an earlier action in 1976] presented, the fact is that it was not presented. Although it was obviously a line of defence tat it was competent to take; it was relevant and, if sound, was likely to be material. I conclude that it was competent to advance this line of defence in the 1976 action but that the Dicksons omitted to advance it. It is too late to take it now. It is res judicata [sic] in a question with United Dominions Trust Ltd.” II.3.3.16 What is interesting about this decision is the link between the plea of competent and omitted and that of res judicata hinted at in the last sentence quoted. It is almost as if Lord McCluskey is characterising the former as a part of the latter much as the equivalent to competent and omitted appears to be characterised as issue estoppel. Competent and omitted has been treated separately in Scotland but there is some indication that, wittingly or not, it is becoming assimilated, thematically at least, to the general doctrine of res judicata. 123 II.3.3.17 The second plea linked to res judicata as regards identity of subject matter is that of res noviter veniens ad notitiam 124. The effect of this plea is to elide the operation of the rule of res judicata where a litigant can convince the court that new and material matters of fact or of evidence of which through his own fault he had no knowledge previously have come to light to support his case. 125 An allegation of perjury which is unspecific as to the exact matters alleged to have been subject to the perjured evidence and the effects thereof does not found the plea 126. An allegation of fraud in relation to the granting of a decree by a court in foreign jurisdiction must be extrinsic to the dercree and directly linked to the decree having been obtained 127The criterion for sustaining the plea is that of the materiality of the materials to the case such that they are not only indispensable thereto but that it would amount to the prevention of justice to exclude them. 128

120 Arguably an example of the occurrence of such a situation is the case of Waydale cited supra. where the Pursuers could have taken the appropriate steps to obtain and intimate the assignation of the cautionary obligation on which their action was based but had failed to do so, accordingly the plea was not open to the defenders in that case. (This author’s note) 121 See for example Maclaren, op. cit., at p. 401 and MacPhail, 3rd. edn., at paras. 2.112/3. 122 Dickson v. United Dominions Trust Ltd., 1988 S.L.T. 19. Although reported in 1988 the case had in fact been decided in February 1986. An appeal had been marked but the reclaiming motion of the pursuers was refused. 123 See for example the opinion of the Extra Division, delivered by Lord Marnoch, in the case of British Airways plc v. Boyce, cited supra at footnote 104 , sitting in an appeal from a decision of the employment Appeal tribunal. Somewhat surprisingly the court, in considering and rejecting the application in Scotland of the ‘Henderson’ rule (see footnote 119 supra.), took no account of the plea of competent and omitted possibly because it was not applicable in that case but nonetheless upheld a plea of res judicata against the appellant pursuer on the grounds that he was raising issues in a second application to an industrial tribunal which he could quite competently have raised in the first application but had omitted to do so. 124 See, for a general description, MacPhail op. cit. at paras. 2.11/1 and Maclaren DN find this ref. Res Noviter is also a ground for reduction of a decree in the Court of Session. 125 Amongst the cases on this doctrine see Glasgow and South Western Railway Company v. Boyd & Forrest, 1918 S.C.(HL) 14 per Ld. Shaw at p. 31, Miller v. Mac Fisheries, 1922 S.C. 157 and Maltman v. Tarmac Civil Engineering Ltd., 1967 S.C. 177. 126 See, on this point, Maltman cited supra. at footnote 127 See Clarke v. Fennoscandia (No. 2), 2001 S.L.T.1311. This is the second of a series of cases between the same parties in which the pursuer has attempted unsuccessfully to open up earlier orders of courts in various places. The most recent decisions on the case are the subject of comment later in this report in the context of abuse of process. 128See Miller v. Mac Fisheries cited supra. at footnote 125 per Lord President Clyde at pp. 160/1. 25 II.3.4 The media concludendi, or the points in issue between the parties must be the same. 129 II.3.4.1130 The media concludendi are the grounds of action and it follows that even if the parties and the subject matter in a second action are the same as those in an earlier action in which decree has been pronounced a subsequent action will not be the subject of a successful plea of res judicata if it is based on new grounds and the Scottish courts will examine the exact nature and substance of the decisions involved in order to determine if the grounds of action are the same. 131 As noted above in relation to the plea of competent and omitted 132 the missing element which is not, so far at least, covered by the Scottish doctrine and cases is the situation where the pursuer having failed in one action tries a second on different grounds since the plea of competent and omitted is only available against a defender. 133 II.3.4.2 The test to be applied as regards the identity of the media concludendi gives the possibility for a pursuer to have another go at the defender by choosing different subject matter or different grounds for a second action where a first was either unsuccessful 134 or new matters were to be introduced 135 or the

129 See Maclaren op. cit. at p. 400 and Macphail op. cit at para. 2.108. 130 As to the meaning of ‘Media Concludendi’ see footnote 28 supra. 131 Amongst the cases which contain significant judicial opinions on media concludendi are Phosphate Sewage C v. Lawson & Son’s Trustee, (1878) 5 R 1125, per Lord Inglis at p. 1139, N. B Railway Co. v. Lanarkshire and Dumbartonshire Railway (1897) 24 R 564, per Lord Kinnear at p. 572, Edinburgh And Distric Water Trustees v. Clippens Oil Co, (1899) 1F 899, per Lord President Robertson at p. 907 and Lord Kinnear at p. 909 and, more recently, Matuszczyk v. National Coal Board, 1955 S.C. 418 per Lord XXXX at pp. 421 to 422. See also, on Media Concludendi Glasgow and South Western Railway Co. v. Boyd & Forrest and Margrie v. City of Edinburgh District Council, cited supra, Stuart v. Stuart (no 2), 2004 S.L.T. (Sh. Ct.) p 44. and the Articles by Paul Beaumont in 1985 S.L.T. (News) 1985, also cited supra. 132 See para. II.3.3.13 supra. 133 The line is sometimes quite finely drawn as for example in Glasgow and South Western Railway v. Boyd & Forrest supra where the subsequent attempt by Boyd & Forrest to trigger the Arbitration clause in the material contract was met by a plea of res judicata based in the fact not that the procedures were the same, which they were not, but that the grounds on which the arbitration was to be based, and the remedy sought, namely payment of the cvlaims made by Boyd & Forrest, were in no perceptible respect different from the earlier litigation. There the classic formulation by Lord Shaw (at p. 17) reveals the approach, subsequently endorsed in a number of cases, including Waydale, of the court as follows:- “ What is a medium concludendi? There is nothing sacrosanct in the term and nothing difficult in the idea. For the purpose of this case it may be quite sufficient to say, negatively, that it is certainly not the mere equivalent of a plea in law; and, positively, that it signifies the reality and the substance of the thing disputed between the parties.”. 134 Arguably the central purpose of res judicata – see for this the examples of Waydale and Margrie both cited supra, where in each case the pursuers raised actions on matters which were similar top those raised in earlier actions but where the second action contained grounds different from the first. It casn be said to an extent that in Margrie the subject matter was different, however, but had not been raised in the earlier action; it was not covered by a plea of competent and omitted. In Waydale the second action was as regards subject matter the same as the first but the grounds were different; the case wwas in any event argued ion the procedural disctinction between the decree of dismissal and absolvitor and whether the former could ever found a plea of res judicata. It is possible to argue that both of these cases would have been the subject of estoppel had they been litigated under , Waydale through issue and possibly claim estoppel and Margrie through the ‘Henderson’ rule to the effect that the pursuers should have raised the subject matter and argued on the gorunds put forward in the second action in the first action. These points were not taken in either action nor was there judicial discussion on the point possibly because it was considered that the law was in a settled state following Lord Keith’s opinion in Anderson v. Wilson, cited supra. and re-iterated by Lord Cullen in Clink. In this respect the emphasis in the Scottish cases, including those decided in the House of Lords, seems to be more on an examination of the substance of the pleadings in relation to the subject matter and the grounds of the decisions than on the procedural implications of multiple litigation which seem to be given greater emphasis under the English doctrines of estoppel and which are central to the policy behind res judicata. It would be possible to posit the proposition also that some of the former are just and necessary to reflect interestsof justice, as arguably in Clink, and some of the latter, as Lord Keith noted in Armia Ltd. V. Daejan Developments Ltd., 1979 S.C. (H.L.) 56 as a counter balance to difficulties inherent in aspects of the law. In that case Lord Keith, who by that time had arrived on the House of Lords, opined, at p. 72, in relation to waiver and personal bar - “In English law attempts to mitigate the rigours of the doctrine of consideration have led to introduction of concepts of equitable estoppel and promissory estoppel in situations where that doctrine rules out a finding of agreed variation of contract. Scots Law would not, I think, be disposed to follow English law down such paths, in the absence of corresponding consideration of justice which might commend such a course. So I would not accept today that no important juridical differences exist between personal bar in Scotland and estoppel in England.” 26 legal arguments to be deployed were to have a different basis in law 136 and in this respect may be seen to create the risk that the plea of res judicata my be circumvented by pleading technique where there is enough time and money for skilled counsel or and a willing client to seek to have two bites at the cherry.137 II.3.4.4 It has been held that the fact that a case can be pled differently under and statute is not per se evidence that the media concludendi are different though some of the authorities are not entirely clear on this point given dicta to the effect that pursuers in particular have been held to be entitled to bring a new action on a different ground 138. II.3.4.5 In Matuszczyk v. National Coal Board 139 the pursuer was injured in fall of coal while working at the coal face of a colliery in West Fife. He had raised an action based on the common law but had not been successful. He then raised a fresh action based on breach of certain statutory duties. The court upheld a plea of res judicata on the basis that in each action the pursuer would have to show that the defenders were at fault albeit on different grounds. Lord Strachan sitting in the Outer House rejected the pursuer’s arguments and adhered to the earlier cases particularly Edinburgh and District Water Trustees v. Clippens and Boyd & Forrest v. Glasgow and South Western Railway in holding that the question raised in the second action was the same as in the original. 140

135 For example where the plea of res noviter could be deployed; see above at para. II.3.3.17. 136 As in Clink, where the pursuer sought damages for breach of an employment contract after failing with an ap[placation to an industrial tribunal for unfair dismissal and Waydale where the pursuers successfully persudaded the court to allow them a second run at an action of payment under a cautionary obligation which since the original decision had been assigned and intimated by them to the cautioner. 137 However this has its risks as can be noted in a number of the cases for example in Boyd & Forrest, cited supra. where the test to be applied was set out succinctly by Lord Dunedin when he noted, at p. 26, -“…..the respondents successfully insisted before the arbiter that they were entitled to have their whole pecuniary claims adjudicated upon, provided only that they were taken upon the footing that the contract held good, and not as they originally contended on the footing of quantum meruit. They say that this is a new action based on different media concludendi from the original action. I do not think that this is a new action. The sums which they seek to secure from the arbiter were all included in the sum sued for in the original action, in which action the respondents [Boyd & Forrest ] consented to absolvitor. If the respondents had raised a simple action of reduction of the contract on the ground of fraud or essential error, no doubt they could, in spite of absolvitor, have proceeded to make what claims they could under the contract. But they did not do this. They sued for a sum of money, and pled resting owing. They were met by a defence of payment made; such payment being calculated according to prices under a contract. In replication they attacked the contract on two separate grounds, both of which failed. But the p[lea of resting owing still remained and had to be disposed of. They consented to absolvitor, and by that they admitted that nothing was resting owing. Had they still wished to fight upon the contract they were bound to have asked the House to p[pronounce a mere finding as to the validity of the contract and to have kept the case alive in order that decree might be got thereunder after the arbiter had fixed the sum due, if any” and his Lordship concluded, at p. 27, -“……..I look upon the present position taken up by the respondents as clearly an afterthought, and I am of opinion that the appellants were right in stopping the arbiter from proceeding to adjudicate on any claims except the two specially reserved.” The House of Lords sitting in that case upheld the plea of res judicata after an examination of the substance of the pleadings and the history and nature of the original action.

138 See Edinburgh and district Water Trustees v. Clippens Oil Co. per Lord Kinnear at p. 909 - “The question raised in the present action was not raised and therefore could not be decided in the previous interdict [ anglice injunction] . The validity of a plea of res judicata must necessarily depend upon the p[leadings and decision in the previous action, and not upon any rights or equities which have arisen antecedent to the pleadings or from any extrajudicial communications between the parties. The question always is, what was litigated and what was decided.”. 139 1955 S.C. 418. 140 Lord Strachan’s judgment contains a substantial analysis of the opinions in the Boyd & Forrest case but his dictum on the central point was not based thereon. He said (at p. 423) – “….I think that Lord Kinnear’s test in Edinburgh and District Water Trustees has been recognised to be the proper test, namely, to ask what was litigated and what was decided. In applying that test to circumstances where an action has been disposed of by jury it seems to me necessary to have regard to the issue that went before the jury and to the the jury returned. In this case the issue which the pursuer proposed and which was considered by the jury was whether the accident was caused by the fault of the defenders to any extent. That was the normal form of issue for both common law negligence and breach of statutory duty and, if the present case were to go to , the proper from of issue would be in precisely the same terms. In my opinion, the verdict in the earlier action must be taken to mean what it plainly said, namely, that the accident was not caused by the fault of the defenders. It seems to me, therefore, that 27 II.3.5 The parties to the second action must be identical with or representative of the parties in the first action or have the same interest. 141 II.3.5.1 This requirement is stated simply and cogently with relatively little recent case law 142 so it appears that the point is well settled in Scots law. One of the earlier leading cases on the subject is Elder’s Trustees v. Elder 143 which concerned an action of multiplepoinding 144arising in the context of a succession in which it was held that an interlocutor pronounced in favour of the trustee of one claimant was res judicata as regards subsequent claims by and on behalf of other persons. II.3.5.2 Not only is there little case law on this rule but also there are few exceptions. The most important of these is the effect that a decision may have as res judicata even on persons who are not representative of or directly related to the decision. This arises chiefly where the first judgment is a judgment in rem. 145 examples found relate to decisions of a consistorial nature on status 146 and actiones popularis 147 where an earlier decision can be binding on third parties in subsequent proceedings even though they have not been party to or involved in the earlier decision. Examples of this include cases involving rights of way 148. II.3.5.3 One situation which can give rise to a procedural bar affecting third parties arises where there is group or representative action. There is no formal procedure, as yet, established under Scots law for class actions and there is therefore no formal rule whereby parties to actins within a specific class might be barred by res judicata or other wise from pursuing, or defending, claims determined in respect of another party within the group. There are however situations under Scottish procedures where group or representative actions may take place. In these cases, however, if there arises a bar on third parties raising proceedings contrary to the outcome of the lead, or indeed, any agreed lead action or actions, it will so arise rather as a result of personal bar or waiver than as a result of res judicata.

TO DO:- Abuse of Process and vexatious litigants, summary and answers to individual questions and completion of footnotes.

the question which would go to a jury in the present case has already been answered and, in the absence of precedent to the contrary, I see no good reason for allowing the pursuer to ask the same question again.” This dictum does seem a bit at odds with some of the other dicta such as in Waydale and Margrie, especially in Waydale, where a pursuer has been allowed to come back against the defenders with actions on a different ground,. It is for consideration whether Matuszczyk is an authority for the propositions which it states therefore and whether Lord Strachan was speaking particularly of the situation where a case was presented for issues to a jury since it does seem clear that the arguments as to the ground of liability in the two cases were rather different, the first being based on vicarious liability for the actions of a fellow employee and the second on a breach of the duty to provide adequate training and a safe system of working. It looks rather more as if the arguments used by Lord Strachan were redolent of the principles in the plea of competent and omitted rather than those of res judicata. 141 See Maclaren op. cit. p. 397 and Macphail op. cit. para. 2.109. 142 Leading cases on the matter include Ryan v. McBurnie, 1940 S.C. 173 and many of the earlier cases relate to questions of succession. 143 (1895) 22 R p. 505. 144 Multiplepoinding is a procedure in Scots law whereby the court is requested to attribute rights of ownership of moveable property, corporeal or incorporeal, where the ownership is disputed amongst a number of claimants. Elder’s Trustee concerned a succession in which a claim made on behalf of a minor son of the deceased to succeed to the whole estate was upheld and preferred against claims lodged on behalf of and by other children in a multiplepoinding partly on the ground that the interlocutor finding in favour of the trustee of the son was res judicata as regards the other claimants. 145 In this regard a judgment in rem can be taken to be a judgment in which a real right is created or declared or in which a question of status or rights of ownership is settled as for example in relation to ownership of land or buildings or of moveable property. 146 See Administrator of Austrian Property v. Von Lorang, 1926 S.C. 598 as approved by the House of Lords in 1927 S.C. (HL) p. 80. 147 Within the limited compass of this report there is no possibility of examining the nature and extent of the application in Scotland of proceedings or actions brought by members of the public to enforce or declare public rights; where these exist, however, they are relevant to discussion of the effect of res judicata as regards third parties not involved in the original action. 148 See McFie v. Scottish Rights of Way and Recreation Society (1884) 11 R 1094. 28

Claim preclusion

1. Existence and nature of claim preclusive effects Are judgments in your legal system capable of having claim preclusive effects?

2. Policies underlying claim preclusive effects What are the policy considerations for the claim preclusive effect of judgments in your legal system?

3. Conditions for claim preclusive effects What are the conditions for the claim preclusive effects of a judgment?

4. Invoking claim preclusive effects Please describe how the claim preclusive effects of a judgment are invoked in your legal system.

5. Exceptions to claim preclusive effects Please verify whether the claim preclusive effect of judgments in your legal system is subject to generally accepted exceptions.

29

In the previous section, the Questionnaire addressed general aspects of claim preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the claim preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of claim preclusion in the circumstances as described.

6. Claimant and Defendant May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from bringing or defending fresh proceedings against the Defendant or Claimant based on what is considered in your legal system to be the same claim?

7. Other participants To what extent, if at all, do the claim preclusive effects of judgments extend to other participants in the litigation?

8. Represented persons Does your legal system provide for group/representative actions (including, for example, US-style class actions)? To what extent, if at all, do the claim preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

9. Persons connected to the Claimant, Defendant, and other participants To what extent, if at all, do the claim preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings?

10. Strangers To what extent, if at all, do the claim preclusive effects extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

B. Issue preclusion

1. The existence and nature of issue preclusive effects Are judgments in your legal system capable of having issue preclusive effects?

2. Policies underlying issue preclusive effects What are the policy considerations for the issue preclusive effect of judgments in your legal system?

3. Conditions for issue preclusive effects What are the conditions for the issue preclusive effects of a judgment?

4. Invoking issue preclusive effects Please describe how the issue preclusive effects of a judgment are invoked in your legal system.

5. Exceptions to issue preclusive effects Please verify whether the issue preclusive effect of judgments in your legal system is subject to generally accepted exceptions. 30

In the previous section, the Questionnaire addressed general aspects of issue preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the issue preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of issue preclusion in the circumstances as described.

6. Claimant and Defendant May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from challenging in the same or subsequent proceedings against the same party any finding (whether adverse or otherwise) on an issue of fact or law which the court may have determined in giving judgment on a particular claim?

7. Other participants To what extent, if at all, do the issue preclusive effects of judgments extend to other participants in the litigation?

8. Represented persons If your legal system provides for group/representative actions (including, for example, US-style class actions), to what extent, if at all, do the issue preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

9. Persons connected to the Claimant, Defendant, and other participants To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in some way to the Claimant, Defendant or another participant in the proceedings or to the subject matter of the action?

10. Strangers To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

C. Wider preclusive effects This section is concerned with the wider preclusive effects of judgments, that is to say any preclusive effect which does not fall into either section A (claim preclusive effects) or section B (issue preclusive effects) above. It is thus concerned with rules which preclude the raising of claims or re-litigation of issues which are not considered by your legal system to have been determined by an earlier judgment, e.g. on the basis of procedural fairness or abuse of process), but which are in some sense related to determined claims or issues.

1. The existence and nature of wider preclusive effects Does your system attribute wider preclusive effects to judgments on the basis of, for example, a doctrine of abuse of process or procedural unfairness?

2. Policies underlying wider preclusive effects What are the policy considerations for the wider preclusive effect of judgments in your legal system?

3. Conditions for wider preclusive effects What are the conditions for the application of wider preclusive effects of a judgment?

31 4. Invoking wider preclusive effects How are wider preclusive effects invoked in your legal system?

5. Exceptions to wider preclusive effects Please verify whether the wider preclusive effects of judgments in your legal system are subject to generally accepted exceptions.

In the previous section, the Questionnaire addressed general aspects of wider preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of wider preclusion in the circumstances as described.

6. Claimant and Defendant May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from (1) advancing, in the same proceedings or later proceedings, related claims against the Defendant or Claimant; and/or (2) from seeking the determination in such proceedings of other potentially related issues of fact and/or law?

7. Other participants To what extent, if at all, do the wider preclusive effects of judgments extend to other participants in the litigation?

8. Represented persons If your legal system provide for group/representative actions (including, for example, US-style class actions), to what extent, if at all, do the wider preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

9. Persons connected to the Claimant, Defendant, and other participants To what extent, if at all, do the wider preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in some way to the Claimant, Defendant or another participant in the proceedings or to the subject matter of the action?

10. Strangers To what extent, if at all, do the wider preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

32 III. Preclusive effects of judgments within the Brussels/Lugano Regime

This Part is concerned with the practice of your legal system concerning the recognition of "judgments" (as defined) under the Judgments Regulation, the Brussels Convention (as amended) and the Lugano Convention, to the extent that the State of which your legal system falls part is a Member State or Contracting State bound by the Regulation and/or the either of the Conventions. References to "State of Origin" are to the Member or Contracting State from which the judgment emanates and references to "Recognising State" are to the Member or Contracting State in which recognition of the judgment, for whatever purpose, is sought. Detailed analysis of the provisions of the Brussels Regulation and of the Brussels and Lugano Conventions, as well as the decisions of the European Court of Justice referred to below, is not called for, except insofar as such analysis is necessary or appropriate to explain the practice of your legal system.

A. Recognition

1. Judgments recognised Which judgments, or types of judgments, are recognised (or not recognised) in your legal system under the Brussels/Lugano Regime?

2. Procedural aspects of recognition What are the procedural aspects of recognition under the Brussels/Lugano Regime in your legal system?

3. Exceptions to the rule (grounds for non-recognition) How does your legal system approach the grounds for non-recognition under the Brussels/Lugano Regime so far as they concern the preclusive effects of the judgment?

4. Effects of recognition What are the effects of "recognition" within the Brussels/Lugano Regime?

B. Claim preclusion within the Brussels/Lugano Regime

1. Existence and nature of claim preclusive effects Do judgments recognised in accordance with the Brussels/Lugano Regime have claim preclusive effects in your legal system?

2. Policies underlying claim preclusive effects What are the policy considerations for the claim preclusive effect of judgments originating in other EU Member/ Lugano Contracting State in your legal system?

3. Law applicable to claim preclusive effects Does your legal system consider that claim preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required, (2) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the claim preclusive effects of the judgment, (3) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the claim preclusive effects of an equivalent local judgment, (4) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the claim preclusive effects of an equivalent judgment of a non- Member/Contracting State; or (5) other reasoning? 33 4. Conditions for claim preclusive effects What are the conditions for the claim preclusive effects of a judgment?

5. The identity of claims in the Brussels/Lugano Regime How do courts in your legal system determine the identity of claims under the Brussels/Lugano Regime?

6. The identity of parties in the Brussels/Lugano Regime How do courts in your legal system determine the identity of parties under the Brussels/Lugano Regime?

7. Invoking claim preclusive effects under the Brussels/Lugano Regime Please describe how the claim preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

8. Exceptions to claim preclusive effects under the Brussels/Lugano Regime Please verify whether the claim preclusive effect of a judgment originating in another EU Member/Lugano Contracting State is subject to generally accepted exceptions in your legal system.

9. Persons affected by claim preclusive effects To which persons or categories of persons do the claim preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

C. Issue preclusion

1. Existence and nature of issue preclusive effects Do judgments recognised in accordance with the Brussels/Lugano Regime have issue preclusive effects in your legal system?

2. Policies underlying issue preclusive effects What are the policy considerations for the claim preclusive effect of judgments originating in other EU Member States in your legal system?

3. Law applicable to issue preclusive effects Does your legal system consider that issue preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required; (2) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the issue preclusive effects of the judgment; (3) the conclusion that the Recognized judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the issue preclusive effects of an equivalent local judgment; (4) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the issue preclusive effects of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning?

4. Conditions for issue preclusive effects What are the conditions for the issue preclusive effects of a judgment?

34 5. Invoking issue preclusive effects Please describe how the claim preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

6. Exceptions to issue preclusive effects Please verify whether the issue preclusive effects of judgments in your legal system are subject to generally accepted exceptions.

7. Persons affected by issue preclusive effects To which persons or categories of persons do the issue preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

D. Wider preclusion (abuse of process/claims and issues that could or should have been raised)

1. The existence and nature of wider preclusive effects Do judgments recognised in accordance with the Brussels/Lugano Regime have wider preclusive effects in your legal system?

2. Policies underlying wider preclusive effects What are the policy considerations for the wider preclusive effect of judgments in your legal system derived from the Brussels/Lugano Regime?

3. The law applicable to wider preclusive effects Does your legal system consider that wider claim and issue preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the Recognized Judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required; (2) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the effects of the Judgment; (3) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the effects of an equivalent local judgment; (4) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the effect of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning.

4. Conditions for wider preclusive effects What are the conditions for the wider preclusive effects of a judgment?

5. Invoking wider preclusive effects Please describe how the wider preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

6. Exceptions to wider preclusive effects Please verify whether the wider preclusive effects of judgments recognised under the Brussels/Lugano Regime are subject to generally accepted exceptions.

7. Persons affected by wider preclusive effects To which persons or categories of persons do the wider preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

35 E. Authentic instruments/court approved settlements Do the preclusive effects described in Part III.B. to Part III.D. above (or similar effects) extend to authentic instruments and court (approved) settlements within the meaning of Articles 57 to 58 of the Brussels Regulation (Articles 50 and 51 of the Brussels/Lugano Conventions)?

36 IV. Preclusive effects of third state judgments

This Part concerns the preclusive effects of "third state judgments", i.e. judgments from a State which is neither a EU Member State nor a Contracting State to the Lugano Convention. It has been included not only for the purposes of comparison with the domestic and Brussels/Lugano Regimes (as well as the rules in force in the United States of America, which is not a party to the Brussels or Lugano Conventions), but also so that the end product of the Project does not exclude completely this important aspect of the study of the cross- border effects of judgments. It is concerned mainly with the generally applicable rules of your legal system for the recognition of foreign judgments outside the Brussels/Lugano regimes, and not with special regimes applicable, by virtue of international treaty or otherwise, to judgments in specific subject areas or from particular foreign jurisdictions (save insofar as such regimes cast light on the general practice in your system). If third state judgments have preclusive effects in your legal system, both as a matter of general law and by virtue of international convention, please focus on the former rules, giving examples from international conventions only where necessary to highlight significant differences in treaty practice from that pertaining under the general law.

Do the preclusive effects described in Parts II and III above (or similar effects) extend in your legal system to third state judgments?

37