final and conclusive judgment

In the context of private international law, a final and conclusive judgment forms the basis for recognition and subsequent leading of the defences of issue estoppel and cause of action estoppel (i.e. res judicata) in English legal proceedings. Where the subject matter of a dispute has been raised, heard and determined by a court of competent jurisdiction, that dispute is not able to be re-opened or re-litigated by further proceedings. In effect, the cause of action is not able to be raised again in the lex fori.

English courts apply the test of finality to ascertain whether a judgment is final and conclusive. The court will look for a decision which exhausts the merits of the controversy between the parties, and finalises the rights and liabilities between the parties. The court or tribunal making the decision finally determined in the sense of res judicata - that the judgment forever established the liabilities between the parties or the relevant property which was the subject of the dispute. The test is applied from the perspective of the foreign court or tribunal – the decision must be final and conclusive from its own perspective; that is, in accordance with the lex fori. The natural consequence of this is that the decision has the effect that the dispute is not able to be re-litigated in the jurisdiction which it was made.

A final and conclusive judgment on the merits is a reference to a decision which establishes the facts of the case (1) whether determined as proved, admitted or not in dispute (2) states the relevant principles of law applicable to the facts of the case and (3) expresses a conclusion with regard to the effect if applying principles of law to the facts. A decision which relates to the procedure, barring of a remedy, claims struck out for the want of prosecution, discontinuance, striking out for failing to disclose a cause of action will not suffice.

Courts may apply a number of tests to assert whether a judgment is final and conclusive at law. For instance:

1. In a judgment for a debt due, the court have quantified and determined a specific sum to be paid by a defendant, and the judgment is capable of being executed
2. Whether the court may consider whether the defendant has exhausted all available defences
3. The court may apply a negative test, namely that the judgment lacks the indicia of finality, in that it may be interim in nature.

Whether or not the judgment may be appealed to a higher court has no bearing in deciding whether the judgment is final and conclusive.

Usage: The English Court determined that the foreign court had made a decision which constituted a final and conclusive judgment.

Related Words: recognition of foreign judgments; res judicata; judgment; locus standi; litigation; foreign judgment.