The parties entered into exclusive cross marketing agreements. The defendant resisted enforcement of the contract saying it was void under European law, being contrary to Article 81. The parties were alleged to have agreed to make cross purchases. It was argued that the issue was res judicata.
Held: The defendant could raise the issue before the award of damages was made. The article was intended to protect the public. The court had to see first whether there was an action estoppel, which could only be negated by fraud or collusion. If that did not apply, the court could look to see if there was a Henderson estoppel.
Lord Justice May Lord Justice Kennedy Lord Justice Longmore
 EWCA Civ 1490, Times 22-Nov-2004
EC Treaty 81
England and Wales
Appeal from – Bim Kemi Ab v Blackburn Chemicals Limited ComC 6-Feb-2004
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Thoday v Thoday CA 1964
The court discussed the difference between issue estoppel, and action estoppel: ‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first . .
See Also – Bim Kemi v Blackburn Chemicals Ltd CA 3-Apr-2001
The question was the degree of connection which must be shown between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for breach of a different contract between the same parties, in order . .
See Also – Bim Kemi Ab v Blackburn Chemicals Ltd ComC 30-Jan-2002
See Also – Bim Kemi Ab v Blackburn Chemicals Ltd CA 13-Feb-2003
See Also – Bim Kemi Ab v Blackburn Chemicals Ltd SCCO 24-Jun-2003
See Also – Bim Kemi Ab v Blackburn Chemicals Ltd CA 24-Jun-2003
It had been argued by the claimant in written submissions (although not maintained orally) that an order for payment of pre-judgment interest on costs should never be made. As to an award of interest on costs:- ‘In any event in principle there seems . .
These lists may be incomplete.
Updated: 21 January 2021; Ref: scu.219337