Another [1981] 3 All ER 727]. In Reichel v Magrath, the headnotes of the case reveal the following
facts. The appellant brought an action against his Bishop and the patrons of a benefice claiming a
declaration that he was vicar of the benefice, and that an instrument of resignation which he had
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
executed was void, and an injunction to restrain the Bishop from instituting and the patrons from
presenting any other person to the benefice. Judgment was given against the appellant. Later the
respondent, having been duly appointed to the benefice as the appellant's successor, brought an action
against the appellant claiming a declaration that the respondent was vicar and a perpetual injunction
to restrain the appellant from depriving the respondent of the use and occupation of the house and
lands. In his statement of defence the appellant set up the same case as that on which he lost in the
action in which he was plaintiff. The statement of defence was struck out. The House of Lords held,
affirming the decision of the Court of Appeal, that there was an inherent jurisdiction in the Court to
strike out the statement of defence as frivolous and vexatious and an abuse of the procedure, and to
enter judgment for the plaintiff with a declaration and injunction as claimed. In his judgment, Lord
Halsbury L.C. said as per page 668:
“My Lords, I think it would be a scandal to the administration of justice if, the same question
having been disposed of by one case, the litigant were to be permitted by changing the form of
the proceedings to set up the same case again. ...
... I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an
abuse of its procedure and I therefore think that this appeal must likewise be dismissed.”
[24] The doctrine of the abuse of the process was attributed to the following passage in the speech by
Sir James Wigram V.C. in Henderson v Henderson, 3 Hare 100, at pages 114115:
“I believe I state the rule of the court correctly, when I say, that where a given matter becomes
the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court
requires the parties to that litigation to bring forward their whole case, and will not (except
under special circumstances) permit the same parties to open the same subject of litigation in
respect of matter which might have been brought forward as part of the subject in contest, but
which was not brought forward only because they have, from negligence, inadvertence, or even
accident, omitted part of their case. The plea of res judicata applies, except in specialcase, 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.”
[25] The passage was approved by the House of Lords in Hoystead & Others v Commissioner of
Taxation [1926] A.C. 155, where Lord Shaw delivering the judgment of the House held:
“if in any Court of competent jurisdiction a decision is reached, a party is estopped from
questioning it in a new legal proceeding. But the principle also extends to any point, whether of
assumption or admission, which was in substance the ratio of and fundamental to the decision.
The rule on this subject was set forth in the leading case of Henderson v. Henderson (1) by
Wigram V.C.”
[26] Then came Greenhalgh v Mallard [1947] 2 All ER 255. In that case, the Plaintiff failed in an
action for conspiracy to injure (conspiracy for an unlawful purpose). Later he brought an action on
the same facts for conspiracy to injure by unlawful means. Somervell L.J. held that the facts in the
case gave rise to only one cause of action for conspiracy:
“The present statement of claim admittedly deals with the same transactions. ...
MALAYSIAN JUDGMENTS
Page: 12 of 39
... Counsel for the plaintiff says that this is a different cause of action. It is, of course, true that
in the authorities dealing with conspiracy it is pointed out that there are cases in which the
conspiracy is unlawful in that its purpose is unlawful, viz, to injure the plaintiff, in a way which
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