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 species, which I will call ’cause of action estoppel,’ is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, ie, judgment was given upon it, it is said to be merged in the judgment, or, for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim ‘Nemo debet bis vexari pro una et eadem causa.’ In this application of the maxim ‘causa’ bears its literal Latin meaning. The second species, which I will call ‘issue estoppel’, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.’

Diplock LJ
[1964] P 181, [1964] 1 All ER 341, [1964] 2 WLR 371, [1963] EWCA Civ 1219-1
England and Wales
Cited by:
CitedGood 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 . .
CitedBlackburn Chemicals Ltd v Bim Kemi Ab CA 10-Nov-2004
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. . .
CitedHormel Foods Corporation v Antilles Landscape Investments NV ChD 24-Jan-2005
The claimant had alread challenged the validity of the defendant’s registered trade mark, but sought to do so now on grounds which could have been advanced in the earlier case. The claimant owned the trade mark ‘SPAM’ for canned meats, and the . .
CitedMeretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
CitedSpecial Effects Ltd v L’Oreal Sa and Another CA 12-Jan-2007
The defendants had opposed the grant of the trade mark which they were now accused of infringing. The claimants said that having failed at the opposition stage, they were now estopped from challenging the validity of the mark.
Held: It was not . .
CitedFraser v HLMAD Limited CA 15-Jun-2006
The claimant had been dismissed as chief executive. He had made a claim in the Employment Tribunal for unfair dismissal, but reserved the right to make further claims. The defendant argued that he was not estopped from pursuing those claims.
CitedCampbell v Leeds United Association Football Misc 3-Apr-2009
The claimant sought damages for psychiatric injury suffered when working for the defendant who replied that the matter had already been litigated in her claims in the Employment Tribunal, and that a cause of action estoppel applied.
Held: The . .
CitedSchellenberg v British Broadcasting Corporation QBD 2000
The claimant had settled defamation actions against the Guardian and the Sunday Times on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC.
Held: A . .
CitedBank of Scotland v Hussain and Another ChD 5-Nov-2010
The second defendant had, under the undue influence of the first defendant sold him her house at an undervalue. She also asserted non est factum. He then charged it to the claimant. The court was asked which innocent party should prevail. She said . .
CitedCoke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales SC 19-Jan-2011
The appellant chartered accountant had been convicted in Jersey after removing documents from his offices relating to a disputed trust and in breach of an order from his professional institute. The court now considered the relevance and application . .
CitedSarwar v The Royal Bank of Scotland Plc (Rev 1) ChD 27-Jul-2011
The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of . .
CitedVirgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Family

Updated: 01 January 2022; Ref: scu.188233