Gerard Kelly and Gearoid Carey

The High Court has recently addressed a case — Rippington v Loomes Practising under the Style and Title of Thomas Loomes & Company [2024] IEHC 716 — where a litigant sought to bring a claim that she had already largely litigated as a counterclaim in a separate prior set of proceedings involving the same parties.

The decision confirms that if the subject matter involves the same parties and has already been decided by a court, it cannot be pursued again in separate proceedings. This accords with the well-established legal principle of res judicata, which prevents the re-litigation of previously decided matters.

The court also determined that, to the extent there were additional related allegations, these could not be pursued either. This was because of what is known as the rule in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, which essentially requires a litigant to bring all claims against a party within one action.

Overall, the decision confirms the significance of legal certainty and finality, and the need to avoid abuse of process by preventing multiple actions on the same issue.

Background

A solicitor had acted for a woman (and others) in bringing a challenge to the woman’s sister’s will in 2011. The woman was unsuccessful in that challenge (and in respect of a subsequent appeal) in which the solicitor ceased acting in 2012.

However, the solicitor ultimately had to bring proceedings against her to recover his fees for his work on challenging the will. In defending the claim for the solicitor’s fees, the woman filed a full defence and a counterclaim, in which she claimed damages for negligence against the solicitor.

However, the solicitor prevailed in his claim — it was determined that he was entitled to his fees and the woman’s counterclaim was dismissed.

Subsequently, however, the woman issued a separate set of professional negligence proceedings against the solicitor seeking damages arising out of his allegedly negligent representation of her in the challenge to her sister’s will.

The defendant solicitor sought to strike out the professional negligence proceedings on a number of grounds.

Ultimately, the application proceeded on the issue of whether the professional negligence proceedings should be struck out as being res judicata.

Decision

Mr Justice Barr noted that there were a number of recent judgments which had considered res judicata and the rule in Henderson v Henderson. He mentioned a number by name before quoting at length from Carty & Ors v Harte [2023] IEHC 296, which states:

In light of the case law applied to the facts of the case before him, Mr Justice Barr said that he was satisfied that “any claim by the plaintiff that the defendant acted negligently or in breach of contract in and about his representation of her in the will suit, has been heard and determined by a court on a previous occasion”. It was clear that the issue was raised in the prior counterclaim in proceedings which had been determined decisively in the solicitor’s favour following a full plenary hearing with oral evidence. Mr Justice Barr therefore decided that the issues were clearly res judicata and “cannot be relitigated in these proceedings”.

On the application of the rule in Henderson v Henderson, he found that it “is so closely allied to the doctrine of res judicata that it is covered in the plea in the amended notice of motion that the plaintiffs proceedings are res judicata”. That being so, he concluded that that any further allegations related to the 2011 will challenge fell under the res judicata rule. Consequently, if there were any such allegations, the court ruled that these should have been ventilated by the plaintiff at the time of raising her counterclaim in the 2014 proceedings.

With a nod to the rationales for res judicata and the rule in Henderson v Henderson referenced in the prior case law, Mr Justice Barr concluded by noting his satisfaction that “these proceedings are the very mischief that the principle of res judicata and the rule in Henderson v Henderson are designed to avoid; namely an abuse of court process”.

Conclusion

The decision serves as a useful reminder that the doctrine of res judicata and the rule in Henderson v Henderson are designed, and are applied by the courts, to ensure that:

• matters which have already been decided are not re-litigated; and
• that all claims which might be brought are brought together.

The ruling is clear that a party who seeks to litigate matters already decided, or who fails to advance all issues in the one set of proceedings, will generally not be permitted to do so in subsequent proceedings.

Litigants, and the lawyers advising them, should be cautious not to repeat claims or withhold issues for future proceedings, as this could be deemed an abuse of process.

• Gearoid Carey and Gerard Kelly are partners at Mason Hayes & Curran LLP, where this article was first published.