knowledge | 18 May 2016 |

Res Judicata: No Second Bite at the Same Cherry

The recent proliferation of complex financial litigation in Ireland has led to many attempts to reopen in fresh proceedings matters which have already been decided by the courts. This is usually impermissible because one of the functions of the courts is to bring finality to disputes.

The doctrine of res judicata prohibits reopening an issue which has already been decided between the parties concerned by a competent court1 or tribunal, including importantly, tribunals such as the Financial Services Ombudsman and Pensions Ombudsman.2 However, this doctrine exists in conjunction with broader rules which operate to prevent a party opening up a collateral attack on a court’s findings, or trying to litigate a matter which it tactically chose not to run in a previous case. The underlying principles have recently been usefully revisited by the Commercial Court in Corbett Anor v LSREF III Achill Investments Ltd.3

Achill had obtained two summary judgments against the plaintiffs following a fully-contested hearing, and the plaintiffs had appealed those judgments. Separately, the plaintiffs issued new proceedings seeking declarations that the loan documentation was invalid or briefing unenforceable, and other reliefs. Achill applied to strike out the new proceedings on grounds that they disclosed no reasonable cause of action, were vexatious, bound to fail and/or an abuse of process. Having analysed the plaintiffs’ statement of claim, the judge found that the matters raised had been decided in the summary proceedings; or were premised on the reopening of matters which must be treated as decided in the summary proceedings, or that the premise underpinning matters pleaded was unsustainable.

Res judicata and Henderson v Henderson

The Commercial Court reiterated that the rule in Henderson v Henderson4 means that a litigant may not make a case in litigation which might have been, but was not, made in previous litigation, as doing so amounts to an abuse of process. In the case before the court, examination of the statement of claim led to the conclusion that the plaintiffs raised no new arguments or issues in their new proceedings which had not been aired in the summary proceedings, so the rule in Henderson v Henderson was not strictly applicable: the matters sought to be raised were res judicata in the strict sense, ie they had already been decided by the court between the same parties. The Commercial Court concluded that continuing the new proceedings would constitute a collateral attack on the judgment and findings in the summary proceedings, and was impermissible as an abuse of process.5

The affidavits in the new proceedings raised one new issue which was not previously argued in the summary proceedings. However, that issue did not involve the defendants, and the plaintiffs’ complaint concerning that issue did not found a cause of action against any of the defendants.

A judgment is final for res judicata purposes even if under appeal, and where there is a stay pending appeal

The High Court’s decision in the summary proceedings had been appealed to the Court of Appeal, and the High Court had stayed execution of the judgment pending determination of the appeal. It was argued that the existence of the stay justified refusing to strike out the new proceedings. The Commercial Court found that it is well-established that the existence of either a pending appeal or a right of appeal does not prevent the operation of the doctrine of res judicata.6 The fact that a stay of execution pending appeal was imposed was irrelevant, because the stay did not reverse the High Court’s decision, which remained final and conclusive from the perspective of the law of res judicata.


The maxim “interest reipublicae ut sit finis litium” translates as “it is in the public interest that there be an end to litigation”. This maxim is routinely applied by Irish courts to ensure that:

  • a party may not attempt to reopen by litigation an issue that has already been decided by a competent court or tribunal between the same parties;
  • a party may not attempt to reopen in new litigation points which properly could have been decided in previous litigation, and which the party could have raised in that litigation;
  • attempts by new litigation (rather than by appeal) to attack collaterally a court’s findings will generally be prevented as an abuse of process.

It is important for litigants to appreciate both that the only effective way to overturn a court’s findings is to appeal to a higher court (where a right of appeal exists) and that if issues are conceded or abandoned in litigation, it is normally impossible to reopen them by new litigation.

  1. O’Driscoll v Dunne [2015] IEHC 100
  2. Murphy v Canada Life Assurance Ireland Ltd [2016] IECA 128, 4 May 2016, approving Murray v Trustees and Administrators of the Irish Airlines Superannuation Scheme [2007] 2 ILRM 196, O’Hara v ACC Bank plc [2011] IEHC 367 and Crowley v Zurich Life Assurance [2015] IEHC 197
  3. [2016] IEHC 176, judgment of Costello J of 8 April 2016
  4. (1843) 3 Hare 100
  5. Morrissey v IBRC [2015] IEHC 200
  6. McConnan v President of Ireland [2012] 1 IR 449

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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