The Prevention of Abusive Cross-Border Re-Litigation

The title for this paper poses a deceptively simple question, and it is this: How do we utilise an earlier obtained judgment from country X to prevent abusive re-litigation in country Y? To this question the answer might appear obvious: one reaches for the doctrine of res judicata, that arcane yet fundamental body of law which provides that an earlier judgment is conclusive in a second suit involving the same subject-matter and same legal bases. However, while the doctrine of res judicata is well understood in the domestic setting, it is not entirely obvious how the doctrine applies to foreign judgments to prevent abusive re-litigation before the English courts. Nor is it obvious how the various judgment recognition regimes – in particular the regime established by the Brussels Regulation¹ – pre-ordain the preclusive effects to which a foreign judgment can give rise if relied upon to prevent abusive cross-border re-litigation.