Since a res judicata creates an estoppel per rem judicatum, the doctrine of res judicata is really
the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather
archaic way as estoppel by record. Since the two doctrines are the same, it is no longer of any
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
practical importance to say the res judicata is a rule of procedure and that an estoppel per rem
judicatum is that of evidence. Such dichotomy is apt to give rise to confusion.
The starting point ought to be the celebrated passage by Wigram VC in the case of Henderson v
Henderson (1843) 3 Hare 100 at page 115 which is:
The plea of res judicata applies, except in special cases, not only to points upon which the
court was actually required by the parties to form an opinion and pronounce a judgment, but
to every point which properly belonged to the subject of litigation and which the parties,
exercising reasonable diligence might have brought forward at the time.”
[20] There are in fact two kinds of estoppel per rem judicatum. The first is cause of action estoppel
and the second is issue estoppel, which is a development from the first. Explaining on the two types
of estoppel, the Court said:
“The cause of action estoppel arises when rights or liabilities involving a particular right to
take a particular action in court for a particular remedy are determined in a final judgment and
such right of action, ie the cause of action, merges into the said final judgment; in layman's
language, the cause of action has turned into the said final judgment. The said cause of action
may not be relitigated between the same parties because it is res judicata.
In order to prevent multiplicity of action and also in order to protect the underlying rationales of
estoppel per rem judicatum and not to act against them, such estoppel of cause of action has
been extended to all other causes of action (based on the same facts or issues) which should have
been litigated or asserted in the original earlier action resulting in the final judgment, and which
were not, either deliberately or due to inadvertence. ... On the other hand, the issue estoppel
literally means simply an issue which a party is estopped from raising in a subsequent
proceeding. However, the issue estoppel, in a nutshell, from a consideration of case law, means in
law a lot more, ie that neither of the same parties or their privies in a subsequent proceeding is
entitled to challenge the correctness of the decision of a previous final judgment in which they,
or their privies, were parties. This sounds like explaining a truism, but it is the corollary from
that statement that is all important and that could have given birth to the controversies alluded
to above; the corollary being that neither of such parties will be allowed to adduce evidence or
advance any argument to contradict such decision. In this respect, we respectfully agree with
Peter Gibson J in Lawlor v Gray [1984] 3 All ER 345 at p 350, who said: ‘Issue estoppel ...
prevents contradiction of a previous determination, whereas cause of action estoppel prevents
reassertion of the cause of action.’
It is important to bear in mind the manner in which the issue estoppel operates in preventing
such contradiction of the previous judgment.... There is one school of thought that issue estoppel
applies only to issues actually decided by the court in the previous proceedings and not to issues
which might have been and which were not brought forward, either deliberately or due to
negligence or inadvertence, while another school of thought holds the contrary view that such
Issues which might have been and which were not brought forward as described, though not
actually decided by the court, are still covered by the doctrine of res judicata, ie doctrine of
estoppel per rem judicatum.
We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one
thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by
MALAYSIAN JUDGMENTS
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the weight of authorities to be illustrated later. It is completely in accord or resonant with the
rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per
rem judicatum. It is particularly important to bear in mind the question of the public policy that
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