The court considered a claim for an issue estoppel arising from a foreign judgment: ‘In my opinion a previous judgment between the same parties is only conclusive on matters which are conclusive and necessary to the decision. It is not conclusive on other matters which came incidentally into consideration in the course of the reasoning: see the Duchess of Kingston’s Case (1776) 20 ST 336 and Reg v Hutchings (1881) 6 QBD 300. One of the tests in seeing whether a matter was necessary to the decision, or only incidental to it, is to ask: Could the party have appealed from it? If he could have appealed and did not, he is bound by it, see Bader Bee v Habib Merican Noordin [1909] AC 615, 623 by Lord Macnaghten. If he could not have appealed from it (because it did not affect the order made), then it is only an incidental matter, not essential to the decision, and he is not bound’.
Judges:
Denning MR
Citations:
[1964] 2 QB 647
Jurisdiction:
England and Wales
Citing:
Cited – Kingston’s (Duchess) Case 1776
The judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties coming incidentaly in question in another court for a different purpose. The principle of . .
Cited – Regina v Hutchings 1881
The Local Board had been refused an order for recovery of a proportion of the expenses of sewering a property on the basis that the road was maintainable by the public at large. Years later the Board sought to recover paving expenses. It was held . .
Cited – Bader Bee v Habib Merican Noordin HL 1909
Where a party could have appealed against an earlier decision of a court, but did not, he would later be estopped from denying that decision. . .
Cited by:
Cited – Good Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
Lists of cited by and citing cases may be incomplete.
Estoppel
Updated: 12 May 2022; Ref: scu.188234
