Interplay of “Identity of Parties” With the Extended Doctrine of Res Judicata

The extended doctrine of res judicata (the “Extended Doctrine”) or the principle of abuse of process is the lesser-known cousin of cause of action and issue estoppel.

The Extended Doctrine was formulated by the English courts in Henderson v Henderson; (1843) 3 Hare 100. While having similarities with its cousins, the Extended Doctrine is intrinsically different. In Henderson, it was held that a party is precluded from raising matters in later or subsequent proceedings, which were not – but could have and should have been – raised in an earlier proceeding. The Extended Doctrine aims to protect parties from harassment involved in repeated action concerning the same subject matter; see Kwa Ban Cheog v Kuah Boon Sek (2003) 2 SLR(R) 644.

The Extended Doctrine is applied only in situations where its cousins do not cover the subject matter of the subsequent proceedings. While applying the Extended Doctrine, the courts ought to look into all the circumstances of the case to ensure that a party is indeed abusing the process of the court by seeking to raise before it issues that could have been raised before – see Antariksa Logistics Pte Ltd and Others v Nurdian Cuaca and Others [2018] 3 SLR 117 (“Antariksa”); Goh Nellie v Goh Lian Teck and Others (2007) 1 SLR(R) 453; and Virgin Atlantic Airways Limited v Zodiac Seats UK Limited (2013 UKSC 46). This includes the following considerations.

It can thus be seen that there are no exhaustive ingredients for applying the Extended Doctrine. However, courts are required to find a balance between the demand of ensuring that a litigant with genuine claims is allowed to press them and recognising when a claim is being repeatedly pressed, which may be oppressive to the defendant.

One factor that courts have examined extensively is whether “identity of parties” is required to apply the res judicata doctrine. It is settled that “identity of parties” is a critical factor for the application of issue estoppel or cause of action estoppel. As such, courts have looked into whether the absence of “identity of parties” in an earlier proceeding and a subsequent proceeding can be an impediment to the application of the Extended Doctrine.

In this context, Antariksa, at [74], observed that the Extended Doctrine is not limited to re-litigation or sequential litigation between the same parties. In other words, it is not necessary for the defendant in subsequent proceedings to have been a party to the earlier proceedings for the Extended Doctrine to apply. The Extended Doctrine only demands that some connection should exist between the party seeking to re-litigate the issue and the earlier proceedings where that essential issue was litigated, which would make it unjust to allow that party to reopen the issue; see Lim Geok Lin Andy v Yap Jin Meng Bryan [2017] SGCA 46, at [44].

Courts are of the opinion that, if one was to hold that “identity of parties” was required, this would in effect allow a plaintiff with cause of action against a number of severally liable defendants to bring successive separate actions against each defendant until they got the desired result. To permit that would lead to a multiplicity of proceedings and the possibility of inconsistent findings of fact that would then fail to bring about finality in litigation; see Then Khek Koon and Another v Arjun Permanand Samtani and Another, and other suits (2014) 1 SLR 245, at [100]).

In fact, the English courts have also held that, if litigation by a party is pursued, it should endeavour to pursue such litigation against all interested parties at the same time. It may amount to abuse of process if some defendants were sued in one proceeding and others in other proceedings – especially when they could have been more conveniently sued at the same time; see Micheals v Taylor Woodrow Developments Ltd (2001) Ch 493, at [69].

Recently, the Singapore High Court in Cachet Multi Strategy Fund SPC on behalf of Cachet Special Opportunities SP v Feng Shi (2023) SGHCR 16, at [27–28] (“Cachet Special”) held that the Extended Doctrine can apply to prevent claims in subsequent court proceedings where those claims overlap with subject matter that belonged to or has been dealt with in a previous arbitration. Even if the defendant in the subsequent court proceedings had been neither a party to the previous arbitration nor a party to the arbitration agreement pursuant to which the previous arbitration had been constituted, the Extended Doctrine can be applied provided that the claims in the subsequent court proceedings fall within the scope of the arbitration agreement. The Court here specifically examined whether the absence of “identity of parties” would be a hinderance to applicability of the Extended Doctrine in arbitration proceedings, and held that the application of the Extended Doctrine would not call for a different approach in the context of arbitration proceedings.

From the above discussion, it can be seen that “identity of parties” is not a factor that restricts the application of the Extended Doctrine. The Extended Doctrine is founded on the need to ensure finality of litigation and to guard against abusive litigation. The Extended Doctrine has, however, evolved to embrace modern-day realities of complex multiparty back-to-back contracts. In fact, this makes the application of the Extended Doctrine wider than both its cousins. Unlike issue estoppel, which requires “identity of parties” in the form of privity between parties, the Extended Doctrine only requires a privity of interest.

If a strict requirement of “identity of parties” for invoking the Extended Doctrine was mandated, it would provide a party with multiple bites at the cherry (by litigating through a related party), while being fastened with an unfavourable outcome.

As long as a link can be established between the party seeking to re-litigate the issue and the earlier proceeding where that essential issue was litigated, the Extended Doctrine can be applied to protect against abuse of process.

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The views expressed in this article are those of the authors alone and not of AZB & Partners.