CH-2025-000032 - [2025] EWHC 2988 (Ch)

Res judicata/abuse of process

I do not need at this stage to get into the subtleties of the distinction between cause of action estoppel and issue estoppel. The general principle is clearly set out in Phipson on Evidence (20^th Edn, 2022) at paragraph 43-23:

“Central Principle A final adjudication of a legal dispute is conclusive as between the parties to the litigation and their privies as to the matters necessarily determined, and the conclusions on these matters cannot be challenged in subsequent litigation between them (whether in separate proceedings or at a later stage of the same proceedings). This principle applies absolutely to a conclusion that a cause of action does not exist, but it will not apply to other issues necessarily determined if there are special circumstances.”

The first issue is whether the determination of a financial services ombudsman, undertaking an inquisitorial process, and not being a “court” can give rise to an application of the res judicata principles. Mr Karim, as I understood it, did not challenge or dissent from the proposition that it can. I accept Mr Steadman’s submissions that this follows from Westminster City Council v Heywood (no 2) [2000] Pens LR 235 at paragraph [20]. That was a statutory scheme where relevant complaints had to be placed to the ombudsman but where there was then a right of appeal to the courts (as in the case of the Irish legislation in this case). Absent an appeal the decision was made final and binding and as enforceable as it were a judgment of a court.

In this case, the parties were not obliged to remit the dispute to the Irish Ombudsman. English, not Irish law, applied. However, the parties clearly agreed to submit the dispute to the Irish Ombudsman and the voluntary submission of the dispute to the Ombudsman’s jurisdiction, under Irish law, means, in my judgment, that the principles of res judicata will apply to the ombudsman’s determination (as will the Irish law statutory provisions regarding challenging the ombudsman’s determination). Although no letter is in evidence from Mr Dewji submitting to the ombudsman’s jurisdiction, it is clear that he must have agreed to do so otherwise the Ombudsman would not have proceeded. Given the voluntary submission, the position is for these purposes the same as an agreement to submit to arbitration and a resulting arbitration award. It is not therefore necessary to resort to the concept that foreign determinations, akin to English determinations which give rise to res judicata, will similarly be capable of giving rise to res judicata principles (see e.g. Dicey, Morris & Collins on the Conflict of Laws (16^th Edn., 2022) at [14-031]. However, if I am wrong on the agreed submission point then clearly that principle will apply.

As regards the Ombudsman’s determination, he did not consider any alleged complaints going back more than 6 years from the referral to him. However, he did determine: (a) that as a matter of contract, the policy charges (including the loading) were correct during the preceding 6 years and that the loading applied going ahead; and (b) that the review had been carried out correctly. Much was made by Mr Karim of the fact that the Ombudsman was told that the loading was for medical rather than travel reasons. For present purposes it suffices to say that the Ombudsman was not considering the reasons for the loading and the position back in 2000. He was solely considering whether the loading was contractually binding and concluded (implicitly) that it was.

I turn now to consider the various causes of action asserted.