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
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
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. ...
... 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
cannot be justified by any legitimate purpose of the defendants in what they do, and that in other
cases the conspiracy may give rise to a cause of action because the means used are unlawful. In
other words, a conspiracy may give rise to a claim for damages if either the end or the means, or
both, are wrongful, but, in my opinion, a plaintiff who believes he has a cause of action in
conspiracy must make up his mind whether he is going to rely on one or other or both of these
allegationswhether he is going to say that the purpose was unlawful, but he does not suggest that
the means are unlawful, or that the means were unlawful, but he does not suggest that the
purpose was unlawful; or that both are unlawful. But if he has chosen to rely on, and put his case
in, one of those ways, he cannot, in my view, thereafter bring the same transactions before the
court and say that he is relying on a new cause of action.”
[27] More importantly, in the context of the doctrine of the abuse of the process, His Lordship further
held that res judicata applied to the later action. His Lordship also invoked the principle in
Henderson:
“That, I think, would be enough to dispose of this case, but counsel for the defendants put his
case in two ways, and I will deal with them. He relied, first, on res judicata, and then said that, if
there was any doubt about that, he was entitled to succeed on the ground that it would be
vexatious and an abuse of the process of the court to allow this transaction to be brought before
the court again on the basis of the present statement of claim. I think that on the authorities to
which I will refer it would be accurate to say that res judicata for this purpose is not confined to
the issues which the court is actually asked to decide, but that it covers issues or facts which are
so clearly part of the subjectmatter of the litigation and so clearly could have been raised that
it would be an abuse of the process of the court to allow a new proceeding to be started in
respect of them.”
[28] In holding so, His Lordship had expanded and indeed amplified the phrase “every point which
properly belonged to the subject of litigation” in Wigram V.C.’s famous statement in Henderson
[see Yat Tung Investment Co Ltd v Dao Heng Bank Ltd and Another [1975] AC 581, per Lord
Kilbrandon at page 590, Asia Commercial Finance, at page 793].
[29] At this juncture, it is opportune to add that in the Government of Malaysia v Dato’ Chong Kok
Lim [1973] 2 MLJ 74, the wider rule of res judicata as expanded in Henderson which sometimes is
referred to constructive res judicata, was succintly explained by Sharma J at page 76 in the following
manner:
“The rule is that a matter which might and ought to have been made a ground of attack or
defence becomes a matter which was constructively in issue. A matter which might and ought to
have been made a ground of attack or defence in the former application but which was not
alleged as such a ground of attack or defence is for the purposes of the plea of res judicata
MALAYSIAN JUDGMENTS
Page: 13 of 39
deemed to have been a matter directly and substantially in issue in the former application, that is
to say, though it may not have been actually directly and substantially in issue it is still regarded
as, having been constructively, directly and substantially in issue. There can be no distinction
between a claim that was actually made and a claim which might and ought to have been made.
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