Litigating a Cause of Action twice - first for declaratory relief - then for a Coercive Judgment (Collatory Case)

A question about the English law doctrine of merger and its scope: does the doctrine, by which a cause of action merges with a judgment in the action, apply to a declaratory judgment?[1]

This is the question that arose for consideration in Nasir v Zavarco Plc [2025] AC 738 [2025] 2 WLR 340 ('Nasir') in the Supreme Court, wherein, Lord Hodge gave the only judgment (Lord Hamblen, Lord Leggatt, Lord Stephens and Lady Rose agreed with Lord Hodge).

For readers short on time, readers are advised to jump straight to the 'summary' below. 

Facts

The facts can be concisely stated. On 29.6.11, Zavarco Plc ('ZP') was incorporated, with Euro 120m of shares. Mr Nasir ('N') was a subscriber for Euro 36m ('36m Shares'), which N received. N purported to pay for the 36m Shares by transferring to ZP, some shares in another company (Zavarco Berhand ('ZB')). While N contended this amounted to payment for the 36m Shares, '[ZP] considered that [N] was obliged to pay for the [36m Shares] notwithstanding the transfer of the shares in ZB' (paragraph 3).

ZP contended that, within ZP's articles of association ('AoA'), there were provisions which permitted ZP to forfeit any shares which were not paid for (particularly, the 36m Shares). On 5.6.15, ZP issued a call notice (paragraph 4) (essentially, demanding N pay ZP for the 36m Shares). N did not make any payment to ZP in response. On 15.6.16, ZP issued a Notice of Intended Forfeiture (paragraph 4)

'...on 9 September 2016, [N] commenced proceedings in the High Court seeking a declaration that he was entitled to vote as the registered holder of the [36m Shares].... he asserted that the [36m Shares] were fully paid as the transfer of the shares in ZB amounted to good consideration. Three days later, on 12 September 2016, [ZP] commenced proceedings in the High Court seeking declarations (i) that the [36m Shares] were unpaid, (ii) that the Notice of Intended Forfeiture complied with [ZP's AoA], and (iii) that it was entitled to forfeit the [36m Shares]. [ZP's] particulars of claim also asked for “further or other relief as appropriate” in the usual way but no request was made for any such relief and the matter proceeded as a claim for declarations.' (paragraph 5)

The two claims were tried together in a four-day trial before Martin Griffiths QC, acting as a deputy High Court judge (the 'Deputy Judge'). The central issue in the trial was whether the 36m Shares had been paid for. N argued that the transfer of the ZB shares was a valid arrangement for alternative consideration under section 594 of the Companies Act 2006 (the '2006 Act'), and that, if it was not, N was entitled to relief under section 606 of the 2006 Act. In his judgment, the Deputy Judge: (a) found in favour of [ZP]; and (b) granted the relief sought by ZP, making, in his consequential order, declarations that:

(1) The 36m Shares were unpaid for; and

(2) ZP, having taken the steps required under ZP's AoA, and N having failed to pay for the 36m Shares, ZP was entitled to forfeit the 36m Shares.

On 11.6.18, ZP forfeited the 36m Shares.

Pausing there. It might be thought that that would be the end of the litigation/matter. However, under ZP's AoA, articles 75.3 and 77, a person whose shares had been forfeited:

(a) remained liable to pay for the unpaid shares (here, the 36m Shares); though

(b) he had a right to credit, from the proceeds of any later sale of those (forfeited) ZP shares (here, the 36m Shares).

This lead to ZP's second claim. On 11.10.18, ZP commenced a second claim, contending that N owed ZP Euro 36m, following the Deputy Judge's judgment and interest thereon. In response, N applied applied '...to set aside the service of the claim form or to strike out the proceedings...' on the ground that '...the claim for payment had merged into the [Deputy Judge's] declaratory judgment and had been extinguished as a matter of law...' (paragraph 9).

First instance, first appeal, second appeal and third appeal

At first instance, Chief Master Marsh, as summarised by Lord Hodge '...held that the cause of action determined by [the Deputy Judge's] judgment was identical to that relied upon by [ZP] in the present claim, had merged with that judgment and had been extinguished by operation of law.' (paragraph 10) 

On a first appeal, Birss J allowed the appeal (paragraph 10), holding that ZP's cause of action had not been extinguished by operation of law, by merger with the Deputy Judge's judgment. ZP was entitled to pursue its second claim.

On a second appeal, the Court of Appeal dismissed the appeal, holding that the doctrine of merger has no application to declarations (paragraph 13). 

On a third appeal, the Supreme Court dismissed the appeal, confirming that the doctrine of merger, did not prevent ZP pursuing its second claim using the same cause of action as it had used in its first claim.

SUMMARY 

The answer to the question posed at the start of this bulletin is: no. The doctrine of merger does not apply to declaratory judgments. Lord Hodge, at paragraph 16 stated 'I am not persuaded that the doctrine of merger extends to declarations...' 

In reaching this conclusion, Lord Hodge differentiated between 2 categories of judgments:

(1) 'declaratory judgments'; 

(2) 'coercive judgments' - meaning judgments for the payment of a sum of money (debt or damages)[2] or to enforce a right of property by ordering the return of property

Lord Hodge then determined that the doctrine of merger applies differently, as between these two categories of judgment. Where a cause of action is used to obtain:

(1) a declaratory judgment - the cause of action is not extinguished (the cause of action does not merge with the declaratory judgment);

(2) a coercive judgments - the cause of action is extinguished (the cause of action does merge with the coercive judgment);

At paragraph 49, Lord Hodge in Nasir said ('Spencer Bower' is a leading textbook in this area):

'In my view Spencer Bower was and is correct to confine the established application of the doctrine of merger to coercive judgments and thereby exclude declaratory relief from its ambit.'

There was, however, two issues left underdetermined, relating to the position of:

(a) final injunctions - Lord Hodge in Nasir said, at paragraph 49:

'I would however reserve judgment on whether the doctrine extends to final injunctions so that the grant of a final injunction enforcing a right would preclude a later claim to damages arising from the same facts. That is a matter on which the court has not been addressed and there may be arguments against applying the doctrine to such orders.'

(b) declarations against the Crown under section 21 of the Crown Proceedings Act 1947 - particularly, the suggestion that 'the doctrine of merger would apply where the court grants a declaration against the Crown under section 21 of the Crown Proceedings Act 1947 because such declaratory relief is a final judgment.' (paragraph 57). Lord Hodge in Nasir said, at paragraph 57:

'I would not wish to endorse that suggestion both because I reserve judgment on the application of the doctrine of merger to injunctive relief and because it is significant, in my view, that such a declaration has no coercive effect. It is, nonetheless, not necessary for the court to express a concluded view on this matter as again the court has not heard argument on it.'

ANALYSIS 

Lord Hodge in Nasir considered the scope/ambit/application of the doctrine of merger, under 4 subheadings:

(1) The early historical development of the doctrine of merger (section 2) (paragraphs 17 to 24); 

(2) Statutory intervention and modern case law (section 3)(paragraphs 25 to 32); 

(3) What is the cause of action that merger extinguishes? (section 4) (paragraphs 33 to 38); 

(4) Declarations as to legal rights (section 5) (paragraph 39 to 57).

The early historical development of the doctrine of merger (section 2)(paragraphs 17 to 24)

At paragraph 17 of Nasir, Lord Hodge said:

'The doctrine of merger was developed as a means to promote finality in litigation and to prevent duplicative and vexatious litigation. Unlike the standard defence of res judicata in the form of cause of action estoppel, which prevents the contradiction of an earlier judgment as to the existence or non-existence of a cause of action, merger was designed to make a litigant seek his or her remedies in one action by extinguishing a cause of action when judgment has been given on it. I examine a few of the cases to illustrate the point and to identify the conceptual basis of the doctrine.'

Lord Hodge then went on to consider some relatively old authorities[3], noting, from the authorities:

(1) the view expressed, that the cause of action, pre-judgment, was considered 'uncertain'; that the judgment on the cause of action, rendered it 'certain', and so altered/changed the cause of action's nature. The cause of action could, post-judgment, no longer be said to be 'uncertain' ('he cannot resort to demand the incertainty' (Broome v Wooton (1605) Yelv 67);

(2) the view expressed, that the cause of action was of an 'inferior nature', and that by the judgment 'changed into a matter of record, which is of a higher nature'. The cause of action '... transformed and metamorphosed into a matter of record.' (Higgens's Case (1605) 6 Co Rep 44b);

(3) that, for the doctrine of merger to apply, the judgment had to be from a court of record; the doctrine did not apply to the judgments of foreign courts; furthermore, where the cause of action was not the same in the second action, the doctrine of merger did not apply (perhaps, obviously);

(4) that the law had been that, a cause of action could not be used, in successive proceedings, against different people (what I shall label, the 'joint wrongdoers rule') (note Parliament later intervened on this, first though section 6(1) of the Law Reform (Married Women and Tortfeasors) Act 1935);

(5) a quote from King v Hoare (1844) 13 M & W 494, a case prior to Law Reform (Married Women and Tortfeasors) Act 1935. In King, the claimants sued an individual on a debt arising from the purchase of goods and obtained judgment which was not satisfied. The claimants then sought to recover from another individual arguing that the debt was a joint debt owed by both the defendant against whom judgment had been obtained and the new defendant. The Court of Exchequer held that the earlier judgment barred the action against the joint debtor. Parke B stated (p 504):

'If there be a breach of contract, or wrong done, or any other cause of action by one against another, and judgment be recovered in a court of record, the judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result. Hence the legal maxim, ‘transit in rem judicatam,’ - the cause of action is changed into a matter of record, which is of a higher nature, and the inferior remedy is merged in the higher. This appears to be equally true where there is but one cause of action, whether it be against a single person or many. The judgment of a court of record changes the nature of that cause of action, and prevents its being the subject of another suit, and the cause of action, being single, cannot afterwards be divided into two.'

Statutory intervention and modern case law (section 3)(paragraphs 25 to 32)

Lord Hodge in Nasir then considered:

(1) Parliament's intervention, to address the indiscriminate nature of the joint wrongdoers rule, initially in section 6(1) of the Law Reform (Married Women and Tortfeasors) Act 1935 (25 & 26 Geo 5, c 30) by disapplying the rule in relation to joint tortfeasors. Currently, section 3 of the Civil Liability (Contribution) Act 1978 provides:

“Judgment recovered against any person liable in respect of any debt or damage shall not be a bar to an action, or to the continuance of an action, against any other person who is (apart from any such bar) jointly liable with him in respect of the same debt or damage.”

That that disapplied the joint wrongdoers rule in relation to persons jointly liable (not just joint tortfeasors, but more widely). But the doctrine of merger survived to bar multiple actions against the same person on the same cause of action.

(2) Parliament's intervention with section 34 of the Civil Jurisdiction and Judgments Act 1982, creating a similar statutory bar (similar to the doctrine of merger), on the bringing of an action, by a claimant, in England and Wales or Northern Ireland, where the same claimant has been given a judgment in his favour in a court in another part of the United Kingdom or in the court of an overseas country, unless that judgment is not enforceable or entitled to recognition.

(3) 3 more recent authorities (amongst other authorities): (a) Director General of Fair Trading v First National Bank plc [2002] 1 AC 481; (b) Clark v In Focus Asset Management and Tax Solutions Ltd [2014] 1 WLR 2502; and (c) Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160. Lord Hodge in Nasir said, at paragraphs 28 and 29:

'Under the doctrine of merger, a claim under a loan agreement merges with the judgment and, subject to any contrary stipulation with regard to interest on the debt, the debt becomes owed under the judgment and not under the contract: Director General of Fair Trading v First National Bank plc [2002] 1 AC 481, Lord Bingham of Cornhill at para 3. In Clark v In Focus Asset Management and Tax Solutions Ltd [2014] 1 WLR 2502 (“Clark”) the Court of Appeal similarly explained that the effect of merger was that a claimant, if successful, can enforce the judgment but only the judgment. As a result, the claimant cannot bring a second set of proceedings to enforce a cause of action even if the tribunal has awarded less than the claimant would have been entitled to. See the leading judgment of Arden LJ at para 5.

In delivering the leading judgment in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160 (“Virgin Atlantic”), Lord Sumption JSC stated (para 17) that “res judicata” is a portmanteau term used to describe different legal principles with different juridical origins. He described the doctrine of merger as a substantive rule about the effect of an English judgment and said that it “treats a cause of action as extinguished once judgment has been given on it, and the claimant's sole right as being a right on the judgment”. Also within the portmanteau are (i) cause of action estoppel, (ii) the principle that where a claimant has succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages (Conquer v Boot [1928] 2 KB 336), (iii) issue estoppel, (iv) Henderson v Henderson abuse of process, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in earlier ones: see Henderson v Henderson (above); Arnold v National Westminster Bank plc [1991] 2 AC 93; and Johnson v Gore Wood & Co [2002] 2 AC 1; and (v) a more general procedural rule against abusive proceedings. Lord Sumption JSC's summary has been frequently cited but, while this is not germane to the outcome of this appeal, I consider that the principle in Conquer v Boot, which prohibits more than one action to recover damages on the same cause of action, is properly characterised as an example of the doctrine of merger rather than as a separate rule.

Lord Sumption JSC (para 25) described res judicata (ie cause of action estoppel or issue estoppel) as a rule of substantive law and abuse of process as a concept which informs the exercise of the court's procedural powers. He added, “they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation”.'

(4) lastly, for this section, the case of Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2022] AC 1. He said, at paragraphs 31 and 32:

'More recently this court has affirmed the importance of finality in litigation in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2022] AC 1, paras 57–76, in which it considered cause of action estoppel, issue estoppel and Henderson v Henderson abuse of process. In relation to the obligation on a party to advance its whole case at trial and avoid successive litigation see also the judgment of the Judicial Committee of the Privy Council in Primeo Fund v Bank of Bermuda (Cayman) Ltd [2024] AC 727, paras 146–156. The purpose of the doctrine of merger and the various rules and concepts of res judicata is to support the good administration of justice by promoting finality of litigation and preventing the duplication of actions both in the public interest and in the interests of the parties.

As Sir David Richards has stated in his judgment (para 27) merger played an important role in controlling abusive litigation when the means of control available to the courts were significantly less than they have since become. The common law now has a panoply of rules and doctrines by which the courts can promote finality of litigation and prevent duplicative and vexatious actions. Those aims can be further supported by judicial case management under among others Part 3 of the Civil Procedure Rules and practice directions.'

What is the cause of action that merger extinguishes? (section 4) (paragraphs 33 to 38); 

Lord Hodge said that '...the concept of a cause of action as protean and in the context of the doctrine of merger as being imprecise and ambiguous.' (paragraph 33)

After considering 3 potential meanings of the phrase 'cause of action'[4], Lord Hodge said, at paragraph 37:

'In the context of the doctrine of merger, in my view, the concept of a cause of action which is extinguished by the obtaining of a judgment involves the right to a remedy in the given factual circumstances: see Serrao v Noel (1885) 15 QBD 549, Bowen LJ at pp 559–560; and Conquer v Boot [1928] 2 KB 336, Sankey LJ at pp 339 and 342–343, Talbot J at p 343. The two cases from the Court of Appeal of Victoria, Australia...King v Lintrose Nominees Pty Ltd (2001) 4 VR 619 and Sahin v National Australia Bank Ltd [2012] VSCA 317 - are consistent with this analysis. So also is the judgment of the Court of Appeal of British Columbia in Dhillon v Jaffer (2016) 86 BCLR (5th) 239 which is an application of the doctrine of merger to prevent an action for damages for breach of fiduciary duty where a claimant has already recovered damages for negligence arising out of the same facts. The facts are the facts and cannot be extinguished by a judgment. It is the right to claim a further remedy arising from those factual circumstances and not the factual circumstances themselves, that the first judgment extinguishes by creating an obligation of a higher nature.

On the facts in Nasir, Lord Hodge noted that:

'It is not disputed that the factual circumstances underpinning the earlier application for declaratory relief and those relied on in the current action are the same. The question relates to the remedy obtained in the first action. Does a declaration create an obligation of a higher nature which engages the doctrine of merger? That is the central question on this appeal.' (paragraph 36)

Declarations as to legal rights (section 5) (paragraph 39 to 57).

Lord Hodge said in Nasir, at paragraph 39:

'There is no English case law authority on the application of the doctrine of merger to declaratory relief. The cases on merger to which I have referred all concerned attempts by claimants to pursue fresh proceedings after having obtained a judgment for the payment of a sum of money or to enforce a right of property by ordering the return of property. In this judgment I use the expression “coercive judgment” to describe such judgments for the payment of money or the return of property.'

Lord Hodge then considered Spencer Bower, 'the leading textbook' in the area, from its 1924 (first) edition to the 2019 (fifth) edition, at paragraphs 40 to 42[5]. Lord Hodge noted that 

'...from the first to the fifth edition Spencer Bower has asserted that declaratory relief is outside the scope of the doctrine of merger.' (paragraph 42)

(the sixth edition is influenced by Birss J's decision (then available) (paragraph 42)).

After setting out N's submissions as to why the doctrine of merger does apply to declaratory judgments[6], Lord Hodge said, at paragraphs 47 to 49:

'In my view, the idea that one sees in cases such as Broome v Wooton (1605) Yelv 67 and King v Hoare (1844) 13 M & W 494 of the claimant obtaining by judgment a higher remedy than that which the cause of action gave is consistent with there being a coercive element in the judgment. Tindal CJ in Smith v Nicolls (1839) 5 Bing NC 208 (para 21 above) captured the essence of the doctrine of merger when he stated (p 220):

“The ground on which a plea of judgment recovered [ie merger] bars the Plaintiff from any further action is, that the original nature of the debt, or damage, where it may be sought to be recovered, is changed: that he has a higher remedy; he has a judgment in a court of record on which he can issue an immediate execution: and inasmuch as an immediate execution could be issued on his judgment, it would be a very superfluous matter, and give great encouragement to litigation, if he were allowed to commence de novo, and bring another action on that which was the original ground of complaint.” (Emphasis added.)

In Clayton v Bant (2020) 272 CLR 1, a decision of the High Court of Australia, Edelman J in his judgment (para 66) also emphasised the coercive nature of the first judgment in describing the doctrine of merger in these terms:

“where a cause of action, or ‘the very right … claimed’, has previously been established by a local court then at common law the ‘merger of the right or obligation in the judgment’ can be relied upon to preclude re-assertion of the extinguished right. The doctrine of merger is not merely based upon principles of finality. It exists because when a court order ‘replicates’ the prior right, with added consequences such as enforcement mechanisms, the prior right ‘has no longer an independent existence’. No action can be brought upon that extinguished right. The successful plaintiff's only right is a right on the local judgment, which is ‘of a higher nature’.” (Emphasis added.)' [words in bold are in italics in original]

CONCLUSION 

In conclusion (with two reservation), Lord Hodge said, at paragraph 49:

'In my view Spencer Bower was and is correct to confine the established application of the doctrine of merger to coercive judgments and thereby exclude declaratory relief from its ambit.'

Two reservations 

The first reservation was:

'I would however reserve judgment on whether the doctrine extends to final injunctions so that the grant of a final injunction enforcing a right would preclude a later claim to damages arising from the same facts. That is a matter on which the court has not been addressed and there may be arguments against applying the doctrine to such orders.' (paragraph 49)

The second reservation was related to an academic suggestion that 'the doctrine of merger would apply where the court grants a declaration against the Crown under section 21 of the Crown Proceedings Act 1947 because such declaratory relief is a final judgment.'. Lord Hodge said, as to this, at paragraph 57:

'I would not wish to endorse that suggestion both because I reserve judgment on the application of the doctrine of merger to injunctive relief and because it is significant, in my view, that such a declaration has no coercive effect. It is, nonetheless, not necessary for the court to express a concluded view on this matter as again the court has not heard argument on it.'

Reasons for conclusion 

As to his reasons for concluding that the doctrine of merger applies only to coercive judgments but not declaratory judgments (relief): Lord Hodge:

(1) Lord Hodge largely agreed with (at least) two reasons given by Sir David Richards in Nasir in the Court of Appeal. Indeed, when dismissing the appeal, Lord Hodge said 'For these reasons, which are substantially the same as those of Sir David Richards in the Court of Appeal, I would dismiss the appeal' - paragraph 58. Lord Hodge said, at paragraphs 50 and 51:

'In his judgment in the Court of Appeal in this case, Sir David Richards stated (para 37):

“A declaration is a quite different remedy from judgment for a debt or damages. It makes sense to speak of a merger of a claim for a debt or damages into a judgment for the payment of a specified sum as debt or damages, so creating ‘an obligation of a higher nature’. The lesser right is merged into the higher. The same simply cannot be said of a purely declaratory judgment, which itself imposes no obligation but only confirms the obligation which already exists. As Birss J aptly put it: ‘I do not see how a declaration which declares to exist the right which the claimant already had before judgment was given, could be said to extinguish that pre-existing right. It does the opposite.’”

I agree.

Secondly, there may be justifiable reasons for a litigant to seek a declaration before pursuing a claim for a coercive remedy. As Sir David Richards stated in para 40 of his judgment, it made good sense for [ZP] to resolve the dispute whether it was entitled to forfeit the shares which [N] asserted were fully paid before exercising its right of forfeiture which gave rise to the claim for payment for those shares. It is of note that [N] has not appealed Birss J's rejection of his defence that there was Henderson v Henderson abuse of process and unfairness in the raising of the second action. As [counsel for ZP] states in his written case, everyone concerned knew that [ZP] might seek to enforce its right to payment after it had established its right to forfeit the shares.'

(2) Lord Hodge said, at paragraph 52 to 55:

'Thirdly, the doctrine of merger has often been criticised for its rigidity and its capacity to cause injustice. In [Kendall v Hamilton (1879) 4 App Cas 504] Lord Penzance described the doctrine as “unbending and indiscriminate”. Similarly, in Brunsden v Humphrey (1884) 14 QBD 141, in which the Court of Appeal held that a claim for damages for personal injury was a different cause of action from a claim for damage to property caused by the same traffic accident, both Brett MR and Bowen LJ expressed concern about the harsh results which the doctrine can produce. Similarly, the judges in [Republic of India v India Steamship Co Ltd (The Indian Grace) [1993] AC 410], including Lord Goff in the House of Lords (para 27 above), stated that the analogous statutory provision in section 34 of the 1982 Act did not achieve justice as between the litigants. That possibility of injustice is a relevant consideration against extending the doctrine of merger to circumstances in which it has not been applied and in which it would be incongruous.

Fourthly, to allow a claimant to obtain a purely declaratory judgment without excluding its right thereafter to seek a remedy such as damages does not give rise to the mischief of duplicative or vexatious litigation, or at least not to the extent of a repetition of a trial on the merits. In this case the declaratory judgment establishes the legality of the forfeiture and will not be open to contradiction because of the plea of res judicata in the form of an issue estoppel. The further proceedings entail what ought to be a straightforward claim for the debt which is the unpaid price of the shares.

Fifthly, as discussed in paras 29–32 above, there are currently a range of rules and remedies by which a court can achieve finality of litigation and prevent duplicative and vexatious suits, and the modern powers of case management enable the court to control the conduct of a litigation to promote efficiency and the proportionate use of resources. There is no need to extend the scope of the doctrine of merger to remove a lacuna.

Sixthly, I am not persuaded that upholding the Court of Appeal's judgment creates a mismatch or divergence between the common law doctrine and section 34 of the 1982 Act, to which I referred in para 26 above. The relevant words in the section are:

“No proceedings may be brought by a person in England and Wales or Northern Ireland on a cause of action in respect of which a judgment has been given in his favour …”

On a superficial reading this is a complete bar on all proceedings in England and Wales. But a closer examination of the statutory words (“proceedings … on a cause of action in respect of which”) reveals that the Scottish or foreign judgment would be a judgment on a cause of action, or, in other words, a coercive remedy. What is prohibited is a second action in England and Wales or Northern Ireland on a cause of action which has given rise to a relevant coercive judgment elsewhere. This is consistent with the policy background, which involved the extension of the doctrine of merger to relevant Scottish and foreign judgments. A first judgment which was the equivalent of declaratory relief in the law of England and Wales would not be a judgment on a cause of action to which the section applies.'

Lord Hodge then referred, at paragraph 56, to 3 recent Commonwealth cases[7], noting that '...there is within the wider common law at least tentative support for the exclusion of declaratory judgments from the ambit of the doctrine of merger and, significantly, no authority to the contrary has been cited to the court' (paragraph 56)

As stated, Lord Hodge dismissed the appeal (paragraph 58).

Collatory Case Series

The Collatory Case Series, is an series of bulletins, designed to report that one case (perhaps, as here, with a few extra authorities), which collates the essential principles/propositions of law, for a particular doctrine/area of law. It is not designed as a deep and comprehensive review of an area of law, but to provide that quick 'go to' case.

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