(UK law, small claims.)

This is a follow-on question to one I asked earlier.

Splitting a claim into several small claims

A reply to my question stated:

You can only sue once on the same facts on the same defendant The issue here is res judicata - once a case between 2 parties has been resolved, that matter can never be litigated again. So Adam cannot split his litigation against Bill.

I would like clarification of the "same facts" part. What if the facts overlap, but have some different elements.

Hypothetical case:

Adam wants to sell a valuable painting.

Bill promises to sell it for £120,000, and charge a fee of £10,000. But in fact he sells it for £95,000 and charges £20,000 for his work.

So, Adam wants to sue Bill to recover some of his loss. Deciding that a claim in the high court is too expensive, he wants to make two claims in the small claims court.

First case - a claim under tort law for negligence. Relies on the fact that the item was sold for less than its proper value. Cites facts A, B, C, D, E.

Second case - a claim under contract law. Relies on the fact that Bill overcharged for his services. Cites facts A,B, C, F, G.

Does the different causes of action, and the different but overlapping set of facts allow the splitting of the case?

2 Answers 2


Res judicata in the broad sense

The relevant rule is stated in Henderson v Henderson (1843) 67 ER 313:

where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

A more recent statement of the law appears in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160; [2013] UKSC 46:

Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle … Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones.

These principles apply when one claim is decided, and in subsequent proceedings, the plaintiff raises issues which "could and should have been" addressed in the first claim.

Consolidating pending cases

Your question raises a slightly different situation, where two overlapping claims are brought at the same time.

Doing this to avoid paying court fees is likely an abuse of process. It would also breach the plaintiff’s duty to help the court advance the overriding objective of dealing with cases justly and at proportionate cost.

If both cases are pending, the overriding objective can be achieved by consolidating the cases or transferring them to a more appropriate jurisdiction. If the court does this, on its own motion or at the request of the defendant, the overlapping causes of action can be determined in one judgment.

  • 1
    FWIW, Henderson is actually an "abuse of process" case (which doesn't necessarily involve the same parties or people who are in privity with them), as opposed to res judicata (preventing relitigation of anything that was or could have been litigated between the same parties as the first case), or collateral estoppel (preventing relitigation of particular issue within a case by a party against whom the issue was already resolved). This question actually implicates res judicata proper since the parties are the same. See, e.g., bailii.org/ew/cases/EWCA/Civ/2003/14.html
    – ohwilleke
    Commented Sep 8, 2021 at 3:53

Same event - one case

Even when the same facts create different causes of action, they all must be pursued simultaneously or not at all.

The rationale for this is simple: a defendant should only be required to justify their acts or omissions once, not have a plaintiff litigate the same matter over and over.

  • 1
    But aren't they two different events? Mishandling the sale - one event. Overcharging on the fees, a second and separate event.
    – Pete
    Commented Sep 7, 2021 at 2:41
  • 2
    No. There are all associated with a single event - the sale of the painting. You need to bring all your claims that are proximate in time and associated. If your builder floods your bathroom on Tuesday and burns down your kitchen on Thursday, the repair costs are all one claim that should be made simultaneously. If they are separated by 6 months or so and you have already started the first claim, then they would be separated claims.
    – Dale M
    Commented Sep 7, 2021 at 4:51
  • Okay, that's a lot clearer. I think I understand now.
    – Pete
    Commented Sep 7, 2021 at 12:21
  • 1
    @DaleM: Wouldn't an insurer treat those to occurrences as separate "insurable events" unless the fire was the result of the flooding (for example, the water got turned off because of the flood and a minor fire caused massive damages as a result). The insurer's interest here is that the deductible would be applied twice. If it was two events for insurance purposes, wouldn't it be two separate claims in court?
    – Flydog57
    Commented Sep 7, 2021 at 22:51
  • Yes. But we’re not talking about your insurance contract, we’re talking about the householder’s suit against the builder
    – Dale M
    Commented Sep 8, 2021 at 0:37

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