Res Judicata is the general description in English law which covers the defences [1] of merger in judgment, cause of action estoppel and issue estoppel which protect the public and private interests in the finality of litigation. The so-called extended doctrine of res judicata applies where these defences are strictly not available, but the further proceedings would undermine the finality of an earlier judgment and are therefore an abuse of process.

In recent decades the decision of Wigram V.-C. in Henderson v Henderson [2] has been seen as the source of this extended doctrine. The thesis of this paper is that Henderson has been much misunderstood, notably by the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd (Yat Tung), [3] and as a result the extended doctrine became over extended. A further thesis is that this development was unnecessary in many cases because the ground was already covered by the defences of cause of action estoppel and issue estoppel, or was undesirable because it shut out potentially meritorious claims. The decision of the House of Lords in Johnson v Gore Wood & Co (Johnson) [4] has provided the occasion for a closer examination of these questions.

Henderson is a remarkable case. No other 19th century English decision has been cited with anything like the same frequency in recent years. As at February 2002 LEXIS recorded citations in 290 UK cases, 139 Australian cases, 323 Canadian cases and 48 US cases. However it was largely ignored during the 19th century and before 1925 had been cited only four times, once since 1889. [5] Only the last was a res judicata case.

The case was rescued from obscurity, and perhaps oblivion, by Higgins J. in his dissenting judgment in Hoystead v Commissioner of Taxation [6] before the first edition of Spencer Bower's Res Judicata in 1924. His judgment also launched the expression "issue estoppel" onto an unsuspecting common law world. Hoystead went to the Privy Council which found an issue estoppel and allowed the appeal. [7] Its citation of Henderson brought the case to notice, and it was cited again in New Brunswick Rly Co v British & French Trust Corporation [8] but a significant development occurred when it as cited in Greenhalgh v Mallard [9] to support the summary dismissal of a second action as an abuse of process. This was unnecessary as the action, for conspiracy to injure by unlawful means, was barred by a cause of action estoppel based on the dismissal of an action for conspiracy to achieve an unlawful purpose. Henderson has been cited with increasing frequency ever since. Thus the case came to prominence a hundred years after it was decided and has become increasingly important, which is most unusual.

Lord Halsbury said that "every judgment must be read as applicable to the particular facts proved ... since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case", [10] and Lord Diplock said the same thing. [11] The judgment of Wigram V.-C. in Henderson is a paradigm case for the application of this principle.

Henderson arose from a partnership between brothers who carried on business in Bristol where Bethel lived and Newfoundland where Jordan lived. Their late father had given £15,000 to Bethel in trust for Jordan. After Jordan's death his widow and adult children brought proceedings in Newfoundland for the taking of accounts of the partnership and of the estate of the father possessed by Bethel on account of Jordan. Bethel pleaded that Jordan was indebted to him on the balance of the partnership account, that the money received from their father had been invested in the business, and that Jordan owed him money on a private account. He failed to appear at the trial and a decree was made ex parte for the taking of the accounts. He again failed to appear and the Master reported that the £15,000 received from the father plus interest was due to Jordan's estate, but he could not take the partnership accounts because Bethel had not produced the books. The plaintiffs took a final decree on further consideration for the amount found by the Master. When they sued Bethel on this decree at law he took proceedings in Chancery to enforce the claims he pleaded but failed to prove in Newfoundland. Wigram V.-C. upheld a demurrer to Bethel's bill on the ground of res judicata. He said: [12]

"... when 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 ... The plea of res judicata applies, except in special cases ... 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". (emphasis supplied)

He added: [13]

"... the whole of the case made by this bill might have been adjudicated upon in the suit in Newfoundland, for it was the very substance of the case there, and prima facie, therefore, the whole is settled".

This reasoning does not surprise an equity lawyer. As the Vice-Chancellor said: [14]

"The decree was to compute what was due to the plaintiffs for principal and interest; that is, upon all the accounts in question in the pleadings, including the partnership and private accounts". (emphasis supplied)

The amount for which judgment was given pursuant to the Master's report was intended to reflect the netting off of all the pleaded claims between the former partners. Any claim within the pleadings that was not brought forward for adjudication was necessarily barred by the decree. The statements of the Vice-Chancellor quoted, particularly the first, have sometimes been characterised as dicta, but they were part of the ratio because they explain why Bethel's bill was barred by res judicata. However, as the Vice-Chancellor made clear, his statements of principle were not directed to claims outside the pleadings in the original action, a fact that has been overlooked in recent years.

Wigram V.-C. referred to the bill of review procedure and said: [15]

"Those who have had occasion to investigate the subject of bills of review in this Court will not discover anything new in the proposition I have stated, so far as it may apply to proceedings in this country. And in an application to a court of equity in this country, for its aid against the effect of a proceeding by a court of equity in one of the Colonies, I conceive it to be the duty of this Court to apply the same reasoning".

Until the reign of Charles II there was no appeal from the decisions of the Lord Chancellor and the bill of review procedure provided the only means for correcting errors through a re-hearing before the same or another judge. [16] It remained available until the Judicature Act but was then subsumed in the appellate procedures of the Court of Appeal, [17] although original proceedings can still be brought to set aside a judgment for fraud.
The Vice-Chancellor's point was that if Bethel's bill disclosed no case for going behind a domestic decree on a bill of review there could be no case for going behind a foreign decree.

The decision in Henderson was based on cause of action estoppels [18] because the Newfoundland Court found that Jordan's estate was not indebted to Bethel. This was recognised in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [19] by Lord Reid, Lord Upjohn and Lord Wilberforce; and in Arnold v National Westminster Bank [20] by Lord Keith.

Although Wigram V.-C. included an exception for "special circumstances", the House of Lords held in Arnold that the bar created by a cause of action estoppel was absolute. [21]

Henderson was followed in Public Trustee v Kenward. [22] The executor of the wife's estate obtained an order for an account to be taken of the indebtedness of the husband to the estate, including any sum to be allowed by way of set-off. The spouses had carried on business as partners on land owned by the wife, and the order required the accounts of the partnership to be taken. The Master found a net balance due to the estate, and after his certificate was confirmed the executor sued on the decree. The husband then claimed that the land had been a partnership asset. Buckley J. held that this claim was barred by res judicata because [23] it "properly belonged to the subject matter of the account" and "the object of the account ... was to arrive at finality between the defendant and the estate".

Unfortunately all this was overlooked in Yat Tung [24] although Public Trustee v Kenward had been cited, and the result was undoubtedly correct. In earlier litigation commenced by the appellant the respondent counter-claimed for the balance due under its mortgage and recovered judgment for practically the full amount. This counter-claim and the judgment based on it assumed the regularity of a sale by the bank under its mortgage.

The appellant commenced fresh proceedings against the bank and the purchaser attacking the validity of the sale and claiming "damages" from the bank. The Privy Council purported to apply Henderson and held that the new proceedings had been properly dismissed as an abuse of process because they were an attempt to raise matters which Lord Kilbrandon said [25] "could and therefore should have been litigated in earlier proceedings" (the Kilbrandon principle). The reasoning of the Privy Council was seriously flawed.

The new proceedings in Yat Tung were barred by a cause of action estoppel. Equity required a mortgagee to account but as a general rule, only once, [26] and the mortgagor and all puisne mortgagees were necessary parties to the proceedings. If a puisne mortgagee sued the rule was redeem up and foreclose down. Prior mortgages had to be redeemed, and later mortgages and the mortgagor had to be foreclosed. The result was either redemption of all mortgages, or foreclosure in favour of one mortgagee or another. Accounts taken in such proceedings bound all parties.

After a power of sale was held to be effective a mortgage could be paid off without redemption, but the mortgagee was still liable to an account. The proper exercise of the power barred the equity of redemption, [27] and the mortgagee's duty was therefore equitable. [28] The mortgagee can be charged on taking the account with "wilful default if he does not receive what might have been received with due diligence". [29] However the propriety of the sale and the adequacy of the price can only be investigated on taking the account if wilful default was charged in the pleadings and proved at the trial.[30]

There should be still only one account. In the words of Hutley J.A. in the New South Wales Court of Appeal: [31]

"... a party cannot ... have little bits of accounts. There is one account and one account only and the issue is what is owed and what is not owed".

Wigram V.-C. would have agreed. This analysis demonstrates why the later proceedings in Yat Tung were barred by a cause of action estoppel. The bank's counter-claim credited the mortgagor with the proceeds of the sale, and necessarily sought an account. This was taken summarily at the trial, and in accordance with Henderson the judgment barred any further claim by the mortgagor.

In Yat Tung Lord Kilbrandon said [32] that there was no true res judicata "since there had not been ... any formal repudiation [in the earlier case] of the pleas raised by the appellant in [the new case]" but that was the position in Henderson although in that case the claims had been pleaded. He added as a further reason [33] that the purchaser had not been a party to the earlier proceedings, but he was a privy of the bank and entitled to the benefit of the cause of action estoppel.

The error in Yat Tung as to the true basis of Henderson has continued to mislead. In Yorkshire Bank p.l.c. v Hall [34] the bank recovered money judgments against mortgagors which involved taking an account, but the mortgagors in a separate action claimed damages from the bank for its negligence and misfeasance in dealing with some securities. The Court of Appeal held that this action had been rightly struck out on the merits but was not an abuse of process. Robert Walker L.J. said [35] of Henderson:

"It is limited to cases in which a party's failure to deploy his full case at an earlier stage amounts to an abuse of process".

Henderson decided no such thing. The Court failed to recognise that the mortgagors' claims had to be brought forward for adjudication when the account was taken, and since this had not happened they were barred by a cause of action estoppel.

The true basis of the decision in Henderson was again recognised by the House of Lords in Johnson where Lord Bingham said: [36]

"It may very well be ... that what is now taken to be the rule in Henderson has diverged from the ruling which Wigram V.-C. made which was addressed to res judicata".

Lord Millett went further: [37]

"Sir James Wigram V.-C. did not consider that he was laying down a new principle but rather that he was explaining the true extent of the existing plea of res judicata ... While the exact relationship between the principle expounded ... and the defences of res judicata and cause of action and issue estoppel may be obscure I am inclined to regard it as primarily an ancillary and salutary principle necessary to protect those defences and prevent them from being deliberately or inadvertently circumvented".

A cause of action estoppel prevents parties re-litigating the cause of action. It not only bars re-litigation of issues that were litigated but, as Wigram V.-C. held, it also bars the litigation of issues that were not litigated. That is why his well known statement [38] was part of the ratio. The Henderson principle is therefore fundamental to cause of action estoppel rather than ancillary. It defines the effect of such an estoppel.

The principle was extended to issue estoppels in Hoystead v Commissioner of Taxation [39] but Arnold [40] decided that these estoppels were subject to the special circumstances exception mentioned in Henderson. An issue estoppel prevents an issue litigated for one cause of action being re-litigated for another, and unless displaced by the exception, it bars evidence and arguments whether they were raised in the earlier proceedings or not. Again the Henderson principle, although qualified, is fundamental rather than ancillary.

This leaves the extended doctrine of res judicata. In Johnson the House of Lords finally rejected the wide and relatively rigid Kilbrandon principle. [41] Lord Bingham said: [42]

"It is ... wrong to hold that because a matter could have been raised in earlier proceedings it should have been ... That is to adopt too dogmatic an approach to what should ... be a broad, merits-based judgment ... One cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not".

The new principle was applied in Gairy v A.-G. of Grenada [43] where Lord Bingham, after referring to Henderson, said:

"... these are rules of justice, intended to protect a party (... not necessarily a defendant) against oppressive and vexatious litigation".

These developments have returned the extended doctrine to its proper basis, as a category of abuse of process, and are to be welcomed.

In almost all the cases in which the extended doctrine has been applied, from Reichel v Magrath [44] onwards, there was a cause of action estoppel or issue estoppel which justified the summary termination of the proceedings. [45] In almost all these cases the abuser had lost the earlier proceedings on the merits.

MCC Proceeds Inc. v Lehman Bros. International (Europe) [46] was such a case. In the first action against the parent of the defendant in the second action, the latter's title had been in issue, although it was not a party, and the plaintiff lost on the merits. [47] The parent had been forced to rely on its subsidiary's title because it acquired the relevant shares from the subsidiary with notice of the plaintiff 's equity. [48] The second action against the subsidiary sought to relitigate that issue.

Mummery L.J., who gave the principal judgment, held that the second action was abusive, [49] but this finding was unnecessary because the action was barred by an issue estoppel. There was admitted privity between the plaintiffs [50] and privity between the defendants could have been found. [51]

A recent decision of the New South Wales Court of Appeal [52] illustrates the importance of an earlier failure on the merits when considering the question of abuse in later proceedings. Purchasers of a business sued the vendors for breaches of warranty and misrepresentation in accounts annexed to the contract. [53] The purchasers recovered modest damages in contract but failed in misrepresentation because the Judge found that they had not believed the accounts but relied on the warranties. The purchasers then commenced proceedings for negligent misrepresentation against the accountants in an attempt to relitigate the issue of reliance. The Court held that the case was covered by Reichel v Magrath [54] and summarily dismissed the proceedings.

In Divine Bortey v Brent L.B.C. [55] the Court of Appeal rightly held that the failure of proceedings for unfair dismissal barred proceedings for breach of the Race Relations Act based on the same facts. Swinton Thomas L.J. said: [56] "in the light of ... the findings of [the first] tribunal, there was no realistic prospect at all that the applicant would succeed in a claim based on the Race Relations Act", and Potter L.J. said [57] that "the subject of litigation [a reference to the familiar passage in Henderson] was the reason or reasons for [the] dismissal".

Success in earlier proceedings is highly relevant when considering whether further proceedings are an abuse. Thus in Bradford & Bingley Building Society v Seddon [58] the Court of Appeal held that it was not abusive for a plaintiff to bring a second action against other parties when he had succeeded in the first but could not obtain satisfaction. In Johnson [59] the Court of Appeal dismissed a second action by a different plaintiff against the same defendant following a settlement for £1,800,000 in the first, treating this success as irrelevant or of little weight but their decision was reversed.

Gairy v A.-G. of Grenada [60] is another illustration of this principle. The appellant whose property had been expropriated by the former Revolutionary Government, obtained a judgment against the Crown for $3,649,414 which was not enforceable. When after some years most of the judgment debt was still unpaid, he sought coercive relief under the Constitution. The Court of Appeal of Grenada applied the extended doctrine and refused this relief because it could have been claimed in the original proceedings. The Privy Council held that there was no abuse because [61] "circumstances have so changed as to make it both reasonable and just ... to pursue the claim ... in later proceedings". The appellant had succeeded in the earlier proceedings and "it was plain that a more effective remedy was required".[62]

Where the plaintiff failed in the first action the reason for that failure is important when considering whether a second action is abusive. There is a significant difference for this purpose between a dismissal on the merits, and a dismissal on some procedural or technical ground, or because the plaintiff misconceived his remedy. [63] This principle was applied in Barakot Ltd. v Epiette Ltd. [64] where the Court of Appeal held that a second action to recover £1.24 million for money lent was not an abuse where the first only failed because the defendant had not been incorporated at the relevant time.

These principles were overlooked in Talbot v Berkshire C.C. [65] The defendant in the earlier proceedings, who had obtained judgment in the interests of his insurer for one third contribution from the Council, brought proceedings to recover damages for his own injuries. This was a different cause of action outside the pleadings in the original action, and arguably supported by an issue estoppel [66] which entitled the plaintiff to recover one third of his damages, but the action was summarily dismissed. Stuart-Smith L.J. considered that the rule in Henderson applied because the new claim could have been litigated in the earlier proceedings, and did not consider whether it was an abuse of process.[67] Mann L.J.[68] held that the plaintiff was barred by a cause of action estoppel " in the wide sense identified by Wigram V.-C." and also applied the Kilbrandon principle. The decision had been doubted [69] and has now been impliedly overruled by Johnson.

In Sanctuary Housing Association v Baker (No 2) [70] the Court of Appeal purported to apply Henderson when dismissing a second action for possession following the failure of the first on technical grounds. In the first action the Association treated an assignee of the tenancy as a trespasser, relying on fraud to avoid the assignment. Fraud was established but the action failed because the Association was not a party to the assignment.

In the second action the Association treated the assignee as a tenant and relied on a breach of the covenant against assignment. Ward L.J. said [71] that "the proceedings now brought were sufficiently obvious to have been raised earlier", and the claim was "well covered by that ancient rule in Henderson". This involved a misreading of Henderson because the second claim was not within the pleadings in the first action and the technical reason for the earlier dismissal should have prevented a finding of abuse. I suggest this case has also been impliedly overruled.

The decision of the U.S. Supreme Court in Southern Pacific Company v Bogert [72] provides an interesting contrast. Minority shareholders, excluded by a corporate reorganisation from any interest in a new company, failed to obtain redress in various proceedings decided between 1891 and 1907 and did not sue on their true remedy until 1913. They were then successful in the District Court and the Second Circuit [73] and again in the Supreme Court with a lone dissent on this issue. Brandeis J., delivering the judgment of the Court, said: [74]

"Nor does failure, long continued, to discover the appropriate remedy, though well known, establish laches ... Southern Pacific contends that adverse decisions in the earlier litigation are a bar ... as an estoppel ... But in none of these suits was the question here in issue decided ... There was no reason why the minority, who failed in the attempt to recover on one theory because unsupported by the facts, should not be permitted to recover on another for which the facts afford ample basis".

Plaintiffs might not be given so much leeway today, even in the United States, but the case has not been overruled. [75]

In Bradford & Bingley Society v Seddon [76] Auld L.J. said it was important to distinguish between res judicata and abuse of process, "a distinction delayed by the blurring of the two in the Courts' subsequent application of " Henderson. The decision of the House of Lords in Johnson has re-emphasized the importance of this distinction.

Strike-out applications based solely on cause of action or issue estoppels can usually be determined summarily on minimal evidence. On the other hand the abuse of process issue which, in the words of Lord Bingham in Johnson, [77] calls for "a broad merits-based approach" requires a discretionary judgment and this will tend to generate extensive evidence and lengthy argument.

Reasonable diligence in litigation is required for many purposes and there is no reason why courts should not treat the principles in Henderson as one relevant factor in the "broad merits based approach" that is now required.
Mr Justice K R Handley,
A Judge of the Court of Appeal of New South Wales.
This article is based on a lecture given to the Chancery Bar Association and the Institute of Advanced Legal Studies on 6 December 2001 when the Author was the Inns of Court Fellow.



1 A cause of action or issue estoppel can also protect plaintiffs from defences rejected in earlier proceedings, or inconsistent with earlier judgments.
2 (1843) 3 Hare 100.
3 [1975] A.C. 581.
4 [2001] 2 W.L.R. 72.
5 Mutrie v Biney (1887) 35 Ch. D. 614 at p. 620; In re Henderson (1887) 35 Ch. D. 704 at p. 716; Warman v Warman (1889) 43 Ch. D. 296 at pp. 306-7; and Bake v French [1907] 1 Ch. 428.
6 (1921) 29 C.L.R. 537 at p.561.
7 [1926] A.C. 155.
8 [1939] A.C. 1 at p. 20.
9 [1947] 2 All E.R. 255 C.A.
10 Quinn v Leathem [1901] A.C. 495 at p.506.
11 Roberts Petroleum Ltd v Bernard Kelly Ltd [1983] 2 A.C. 192 at p. 201.
12 Ibid., at p. 115.
13 Ibid., at p. 116.
14 Ibid., at p. 118.
15 Ibid., at p. 115.
16 Charles Bright & Co. Ltd. v Sellar [1904] 1 K.B. 6 C.A. at p. 11.
17 In re St. Nazaire Company (1879) 12 Ch. D. 88 C.A.; In re Barrell Enterprises Ltd. [1973] 1 W.L.R. 19 C.A.
18 Thoday v Thoday [1964] P. 181 C.A. at pp. 197-8.
19 [1967] 1 A.C. 853 at pp. 916, 946, 966.
20 [1991] 2 A.C. 93 at p. 107.
21 Ibid., at p. 104.
22 [1967] 1 W.L.R. 1062.
23 Ibid., at p. 1067.
24 [1975] A.C. 581.
25 Ibid., at p. 590.
26 An account could be reopened for fraud, and a supplementary account might be required.
27 Coroneo v Australian Provincial Assurance Association Ltd. (1935) 35 S.R. (N.S.W.) 391 at p. 394 per Jordan C.J. who cited the relevant authorities.
28 Downsview Ltd v First City Corporation Ltd [1993] A.C. 295.
29 Mayer v Murray (1878) 8 Ch. D. 424 at p. 426.
30 Mayer v Murray ibid., at p. 429 and Tomlin v Luce (1889) 43 Ch.D. 1 C.A.
31 Adams v Bank of New South Wales [1984] 1 N.S.W.L.R. 285 at p. 296.
32 Ibid., at p. 590.
33 Ibid., at p. 590.
34 [1999] 1 W.L.R. 1713 C.A.
35 Ibid., at p. 1730.
36 [2001] 2 W.L.R. 72 at pp. 89-90.
37 Ibid., at p. 117-8.
38 Supra n. 12.
39 [1926] A.C. 155.
40 [1991] 2 A.C. 93.
41 It had been rejected as too wide in Port of Melbourne Authority v Anshun Pty. Ltd. (1981) 147 C.L.R. 589 at pp. 601-2 (not cited in Johnson), where the High Court adopted a merits-based approach, but said it was also necessary to avoid inconsistent judgments.
42 Ibid., at p. 90.
43 [2001] 3 W.L.R. 779 at p. 792.
44 (1889) 14 App. Cas. 665.
45 Spencer Bower, Turner and Handley Res Judicata (3rd ed.) at pp. 252-4.
46 [1998] 4 All E.R. 675 C.A.
47 Ibid., at p. 696.
48 Ibid., at p. 695.
49 This finding was covered by Reichel v Magrath (1889) 14 App. Cas. 665, but it was not cited.
50 Supra n. 46, at p. 679.
51 Ibid., at pp. 693, 695, 696. A finding of privity because of community of interest would have been supported by House of Spring Gardens v Waite [1991] 1 Q.B. 241 C.A at p. 252-4, but it was not cited.
52 Rippon v Chilcotin Pty. Ltd. & Ors. [2001] N.S.W.C.A. 142, not yet reported, noted (2001) 75 A.L.J. 597.
53 Claims were pleaded in fraud, negligent misrepresentation and breach of s. 52 of the Trade Practices Act 1974 (C'wlth) which makes actionable misleading and deceptive conduct in trade and commerce. Only the latter was pressed.
54 (1889) 14 App. Cas. 665.
55 [1998] I.C.R. 886.
56 Ibid., at p. 897.
57 Ibid., at p. 898.
58 [1999] 1 W.L.R. 1482 at p. 1498.
59 [1999] P.N.L.R. 426.
60 [2001] 3 W.L.R. 779.
61 Ibid., at p. 792.
62 Ibid., at p. 792.
63 See Palmer v Temple (1839) 9 Ad. & El. 508 at p. 521; Hall v Levy (1875) L.R. 10 C.P. 154; Tak Ming Co Ltd. v Yee Sang Metal Supplies Co. [1973] 1 W.L.R. 300 P.C.; Brisbane City Council v Attorney-General for Queensland [1979] A.C. 411; Lordsvale Finance p.l.c. v Bank of Zambia [1996] Q.B. 752.
64 [1998] 1 B.C.L.C. 283.
65 [1994] Q.B. 290 C.A. The plaintiff also had real difficulties on the limitation issue but the case was not decided on that basis.
66 See Wall v Radford [1991] 2 All E.R. 741 at pp. 743, 752.
67 Ibid., at pp. 296-7.
68 Ibid., at pp. 300-1.
69 Spencer Bower Turner and Handley "Res Judicata" (3rd ed) at pp. 258, 265 and Ulster Bank Ltd. v Fisher [1999] P.N.L.R. 794 at pp. 806, 809 (N.I. Ch. D.)
70 (1998) 31 H.L.R. 746.
71 Ibid., at p. 753.
72 250 U.S. 483 (1919).
73 Bogert v Southern Pacific Co. 244 Fed. 61 (1917).
74 Ibid., at pp. 490-1.
75 It was properly distinguished without being doubted in United States v Oregon Lumber Co. 260 U.S. (1922) and in Barnette v Wells Fargo Nevada National Bank 270 U.S. 438 (1926).
76 [1999] 1 W.L.R. 1482 C.A. at p. 1490.
77 Supra n. 36, at p. 90.