Res Judicata,

and Evidence of Facts on Which they are Based

The doctrine of res judicata is also known as estoppel by record.

In civil proceedings the doctrine prescribes that a previous judgement against a person is conclusive evidence against all persons of the state of things which it actually affects. It is not evidence of the findings on which it is based however. Therefore if there is a judgement against a party Q that he was in breach of contract with Z and Z was awarded £5,000, the judgement is proof of the award of damages but it is not conclusive proof that Q was in breach of that contract.

A party to civil proceedings or his privies may be estopped from re litigating findings mad by the court in the civil proceedings between himself or his privies, and another party or his privies. This is known as estoppel by record or per rem judicatam. This must be pleaded to take effect however. Thus, in the case of Conquer v Boot (1928) P sued a builder D for damages for breach. Due to defective workmanship. P was therefore estopped from bringing further actions for the consequences of the defective workmanship as P had failed to particulars them in the original action.

A cause of action in estoppel or an issue estoppel may arise only if certain requirements are satisfied. Firstly the parties must be the same or privies of those that were in the original proceedings. Secondly, the parties in the latter proceedings must be litigating in the same capacity as they were in the same proceedings. Thirdly, the cause of action that is been litigated in the latter proceedings must have been litigated in the original proceedings, and finally the court which determined the relevant issue in the original proceedings must have been a court of competent jurisdiction, and must have given a final judgement upon the merits.

Parties should also be mindful of the rule in Henderson v Henderson which states that a party may be estopped from bringing a cause of action in latter proceedings if it through the exercising of reasonable diligence he might have proceeded with against the same party in a previous case. However the rule is by no means automatic and will depend on all the relevant circumstances of the case.

As regards previous convictions, the admissibility of these is largely governed by the Civil Evidence Act sections 11, 12 and 13. Section 11(1) provides that a person's conviction is admissible in civil proceedings to prove that the person committed the offence, as long as it is relevant to an issue before the court. The person will be taken to have committed the offence unless the contrary is proved. Section 13 stipulates however that any conviction of libel or slander is conclusive proof that the person committed it.

We shall now look at the doctrine of res judicata in relation to criminal proceedings. A person who has been convicted of a criminal offence may plead autrefois convict in order to bar any subsequent proceedings for the same offence against him. A person that has been acquitted of a previous offence can plead autrefois acquit. However the prosecution may still be able to overcome autrefois acquit if it can show that proceedings concern an offence of which the acquitted could not have been previously convicted in previous proceedings and the proceedings do not contain substantially the same facts as the earlier proceedings.

The two pleadings also act as a bar to proceedings against a person in respect of lesser offences of which he would have been convicted in earlier proceedings when charged with a more serious offence. Evidence of previous convictions is considered to be too prejudicial to a Defendant to be allowed, as a jury will assume that because the Defendant has done it before, he/she will have done it again, and be guilty of the events in issue.
Finally, in the case of R v Humphreys (1972) it was held that issue estoppel does not apply to criminal cases, so a person can testify again even if the y have testified in previous proceedings.

We shall now look at previous convictions. Section 74(3) of the Criminal Evidence Act 1984 provides that a conviction of the accused is admissible as proof that he committed the relevant offence unless the contrary is proved. Under section 74(1) where a person other than the accused has previous conventions then these are admissible as long as they are relevant as regards an issue before the court. This may be a direct element of the offence that the accused is charged with or may be a lesser evidential issue.

The judge reserves the discretion under section 78 of the act to exclude the conviction should he see that it is necessary because the submission of it as evidence would have such an adverse effect on the proceedings that it ought to be excluded.

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