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Important Decision Considering the Doctrine of Res Judicata

Date: 07/02/2017

Ackerman v Thornhill is an important decision considering the doctrine of res judicata, particularly in the context of attempts to set aside judgments or settlements on the grounds of fraud. It emphasises the public interest in the finality of litigation.

Graeme McPherson QC, Amanda Savage and Lucy Colter acted for a Tax Silk (T) in his successful application to strike out or for summary judgment in a second set of proceedings brought against T and members of the claimant’s family. The proceedings arose out of the demerger of the family interests in a group of property companies in respect of which T had acted as an expert. Vos J had dismissed the first action in which it was alleged that T was guilty of actual bias, collusion and material breach of instructions. In the second action it was alleged that T was a party to transactions, which were deliberately and dishonestly concealed during the earlier proceedings, which placed him in a position of conflict of interest and duty and which prevented him from acting fairly and impartially. It was also alleged that the defendant family members had paid T a bribe or secret commission to induce him to favour those family members in the demerger process.

The proceedings were struck out by application of the doctrine of res judicata. The Court considered the scope of issue estoppel and the Henderson v Henderson principle, and confirmed that applications to set aside a previous judgment or settlement on the grounds of fraud were subject to the requirement that the relevant evidence was not available, and could not have been discovered with reasonable diligence, at the time of the first judgment/settlement.

Graeme McPherson QC, Amanda Savage and Lucy Colter acted for the successful barrister. Click here to view the judgment.

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