Constructive Res Judicata - Malaysia

Constructive res judicata is a subset of the doctrine of res judicata. When a party tries to put forth various legal issues which could possibly have something to do with that party’s initial claim.

The doctrine of Constructive Res Judicata steps in, and seeks to prevent the claims which were failed to be brought at the appropriate time in earlier proceedings.

This essentially means that constructive res judicata, focuses on the nature of claims regarding a particular legal proceeding as opposed to merely looking at whether a specific issue has been raised.

How & when would Constructive Res Judicata apply?

Unlike the traditional doctrine of Res Judicata, which bars a party from bringing an action on the basis that such claim has already been adjudged by the court, Constructive Res Judicata has to be understood from a different perspective.

An issue that was not raised by a party during the initial legal proceedings can still be estopped from being put forward. This is mainly because, although there was no actual decision in litigation between parties as to the issue involved in a present case, issue could, and should, have been raised before.

A recent application of it is to be found in the decision of the Board in Yat Tung Investment Co Ltd v. Dao Heng Bank Ltd [1975] AC 581. Here the board accepted the defence of Res Judicata and reflected how it was recognized in the judgment of Wilgram V-C in Henderson v. Henderson (1843).

The board acknowledged the that there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.

Moreover, in Sim Kie Chon v Superintendent Of Pudu Prison [1985] CLJ Rep 293, the respondent instituted a separate suit against the first three appellants three weeks after the initial action.

As a result, the appellants applied to strike out the second appellant as a party and to set aside the action as an abuse of the process of the court.

Hashim J. dismissed the application and such decision was reversed on appeal on the grounds of res judicata where the judgment of Eusoffe Abdoolcader, SCJ held:

“There is more over the inherent jurisdiction of the Court in cases where res judicata is not strictly established, and where estoppel per rem judicata has not been sufficiently pleaded, or made out, but nevertheless the circumstances are such as to render any re-agitation of the questions formally adjudicated upon a scandal and an abuse, the Court will not hesitate to dismiss the action, or stay proceedings therein, or strike out the defence thereto, as the case may require.“

At this juncture, it is opportune to add that in the Government of Malaysia v. Dato Chong Kok Lim [1973] 1 LNS 35; [1973] 2 MLJ 74, the wider rule of res judicata as expanded in Henderson which sometimes is referred to constructive res judicata, was succinctly explained by Sharma J:

“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. The plea of res judicata is 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. This further justified by the opinion that there can be no distinction between a claim that was actually made and a claim which might and ought to have been made. The rule of constructive res judicata is really a rule of estoppel.”

It would be relevant to note that, only where the plea which is sought to be raised in the subsequent proceedings was not available to the party at the time of the previous proceedings that the decision cannot be constructively res judicata.