Whereupon things took a very odd turn. For some unexplained reason, proceedings were brought against the shipowners in Cochin, claiming damages only in respect of the 51 shells jettisoned at Cherbourg. A year later, but before judgment in Cochin, the Indian Endurance was served at Middlesbrough with a writ in rem, claiming damages of £2.6 million. But, when the court at Cochin gave judgment for the cargo owner, the shipowner sought to defend the English proceedings on the basis that the judgment at Cochin operated, by estoppel or otherwise, to bar all and any further proceedings arising out of the same contract and the same fire. The lower courts2 felt obliged to treat the Civil Jurisdiction and Judgments Act 1982, s. 34 as having precisely this effect, and struck out the plaintiffs’ claim. The House of Lords declined to take so summary a view of the matter, reversed the Court of Appeal, and allowed the plaintiffs to proceed to make their claim.

The shipowners’ main argument was that s. 34 absolutely barred the later-commenced English proceedings. It states that: “No proceedings may be brought by a person in England … on a cause of action in respect of which a judgment has been given in his favour in proceedings between the same parties, or their privies, in a court … of an overseas country unless that judgment is not enforceable or entitled to recognition …” As the judgment in Cochin was entitled to recognition, the shipowners having submitted to the court which gave it, it was argued that s. 34 deprived the English court of jurisdiction to hear the cargo owners’ claim. The intellectual foundation for this reading of the section was that (i) when an English court gives judgment, the judgment merges with the cause of action, which is