In Dawodu v American Express [2001] BPIR 983, leading expert insolvency Judge, Mr Justice Etherton, who went on to become Master of the Rolls, gave this leading judgment providing extremely useful insight into the long-established doctrine of ‘no res judicata’ / ‘going behind a judgment’ / duty of inquiry in the jurisdiction of the insolvency court.

Mr Justice Etherton as he then was, sitting in the Chancery High Court, Insolvency & Companies Court, summarised case law on the doctrine we refer, analyzing the following judgments:

Re Lennox [1885] 16 QBD 315; Re Fraser [1892] 2QBD 633; Re Victoria [1894] 2QBD 387; R v. Henderson AC 720; Re Hawkins [1895] 1QBD 404; Re Flatan [1889] 22 QBD 83; Re Saville [1887] 4 Morr 277; Re Lipscombe [1887] 4 Morr 43; Re Howell [1915] 84 LJKB 1399; Re Turvey [1918−1919] B & CR 128; Re Onslow [1875] LR 10 Ch 375; Re Newey (1913) 107 LT 812. and McCourt v. Baron Meats Limited and The Official Receiver [1997] BPIR 114.

In summarising the doctrine of inquiry / going behind a judgment, Mr Justice Etherton finally determined this position as the lead authority on the engagement of such judicial inquiry:

“My only qualification to the summary by Warner J. is that the cases establish that what is required before the Court is prepared to investigate a judgment debt, in the absence of an outstanding appeal or an application to set it aside, is some fraud, collusion, or miscarriage of justice. The latter phrase is of course capable of wide application according to the particular circumstances of the case. What in my judgment is required is that the Court be shown something from which it can conclude that had there been a properly conducted judicial process it would have been found, or very likely would have been found, that nothing was in fact due to the Claimant. It is clear that in those circumstances the Court can enquire into the judgment and the judgment debt, even though the debtor himself has previously applied to have the judgment set aside, and even though that application has been refused and that refusal has been affirmed by the Court of Appeal see Re Fraser [1892] 2QB 633″