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Practice and procedure -plea - res judicata -previous litigation between parties - matter in magistrates court dismissed because of failure by plaintiff to appear - rules of court specifically providing that such a dismissal not a defence in any subsequent action
Under the common law, the defence of res judicata is unavailable where the matter has not been previously determined on the merits. In respect of cases in the magistrates court, this common law rule has been restated in rr 4 and 5 of Order 33 of the the Magistrates Court (Civil) Rules 1980 (SI 290 of 1980). These rules make it clear that a default judgment in the magistrates court does not amount to a final judgment giving rise to the special plea of res judicata in subsequent proceedings involving the same parties for the same or a substantially similar cause of action. Rule 5 is couched in peremptory terms, as it provides that "the withdrawal or dismissal of an action or a decree of absolution from the instance shall not be a defence to any subsequent action".
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