Nemo debet bis vexari pro una et eadem causa and interest rei
publicaeutfinislitium sit as famously mentioned under the English law and
religiously followed in the Indian procedural court, no one should be disturbed
twice in the same matter and it is in the public interest that law suits should
have an end.
This maxim refers to the doctrine of Res Judicata which is
quiteoften confused with issue estoppel after the final judgement of the
necessary case, another suit or action cannot be filed by the same parties or
their lawyers for litigating the similar issue again whereas under the Issue
estoppel, an issue that has been previously litigated and decided between the
similar parties or their predecessors in the title, can arise again if the issue
formed the backbone of the case.
The issue need not be an important subject
matter for both sides but it could be a powerful subject matter for one case and
it can still arise if it forming a necessary ingredient in a cause of action
though it has been litigated and decided and the subject is between the similar
parties, involving a different cause of action to which the same issue is
Issue or cause of action
estoppel comes from the English case of 1983
where the appellant landlords had let offices in 1976 to the respondents for 32
years, with rent reviews in 1983 and every five years thereafter. The review of
1983 proved troublesome. On appeal from the arbitrator, Walton J. held that the
rent should be assessed without regard to the fact that the lease contained rent
The effect of the judge closing his eyes to this factor was to
raise the rent by a fifth compared with the level of rent assessed without
disregarding this factor. Practitioners were amazed by this decision. After the
Court of Appeal chose to take the other path in a similar case, it became clear
that Walton J.'s decision was wrong. However, the tenants could not challenge
that decision by appealing out of time, since the Arbitration Act 1979 precluded
this like it was prohibited in India. Therefore� cause of action� estoppel
governed the 1983 review and the tenant had to wait until the next review for an
opportunity to re-argue the point.
When the tenants sought to re-open the
question in 1988 (in respect of the next slice of the tenancy), they were met by
the landlord's argument that the matter was closed under the doctrine of issue estoppel. If that argument were correct, it would cost the tenants thousands,
perhaps millions, of pounds until the tenancy expired in 2008.
That seemed harsh
in the extreme. Browne- Wilkinson V.-C, and the Court of Appeal and the
House of Lords all agreed that the present facts were an example of �special
�which justified the tenant in re-opening the criteria for
assessing rent at the second review.
The decision prevented abuse of power but
could be easily be misused, therefore, certain limitations were also given
against such misuse of power starting with Lord Lowry's statement that it is not
enough that the new point arises as a new argument or the uncovering of a
previous authority: it should take the form of a new decision.
Secondly, the new
decision should indefinitely render the previous point covered in issue estoppel
. I the point is merely wrong on an argument basis, it cannot be
reopened on the context that it wrong
Later, a third limit arose through the
coming of cases, which involved an implied rejection of Staughton L.J.'s dictum
in the Court of Appeal, where he suggested that a party need not point to a
subsequent precedent-making decision in order to show that an issue estoppel is
open to challenge on the ground of legal error. No doubt he had in mind a
decision which by communisopinio is judged to be wrong in law.
dictum cannot now stand with the House of Lords' decision, which was clearly
based on the material fact that a subsequent decision had changed or at least
clarified the law. A sinister route can also be taken by the parties to their
benefit. Hence, in such cases there will be a real temptation for an
unscrupulous party to try to induce the other party to collude in obtaining a
favorable precedent-making decision. It is to be hoped that judicial intuition
and professional ethics will protect the system against such abuse.
This concept of discretion in issue estoppel is a remedy, where a court may
decline to apply it even where each element is present to prevent abuse of
power. This was widely discussed and given consideration in the case of Danyluk
v. Ainsworth Technologies Inc
. in the Supreme Court of Canada. To discuss the
main case, I would first discuss certain previous cases to give a better
understanding. This concept of discretionary jurisprudence was not given
independence or the importance it deserved like in the English case of Winter v. J.A. Dewar Co. Ltd
., the British Columbia Court of Appeal stated that the
doctrine must be given effect in all proper cases, even where it would work an
Similarly, in his dissenting judgment in Angle v. Minister of
,Laskin J. concluded that there was� no reason to introduce
any anomalies or exceptions� to the application of the doctrine if� the facts
call for it.
Perhaps most explicitly, in Naken v. General Motors of Canada
., the Supreme Court of Canada ruled that the scope of the discretion was
very limited and noted that the harsh results which may flow from an assertion
of resjudicata had not been viewed as a pertinent consideration. In the 1990s,
however, the discretionary aspect of issue estoppel was the subject of much more
extensive judicial commentary, particularly in the context of wrongful dismissal
litigation. In a trilogy of cases the Ontario Court of Appeal considered the
circumstances which may justify a decision not to apply issue estoppel.
, the Court of Appeal held that the trial judge had properly dismissed an
action for constructive dismissal on the basis of issue estoppel because the
central issue of whether the plaintiff had been offered reasonable alternative
employment had already been conclusively determined by an employment standards
referee. Although the focus on discretion was cursory, each of the three
separate judgments shed some light on the question.
According to Abella J.A., there was:
no principled basis for exempting issues
adjudicated by tribunals from the operation of issue estoppel in a subsequent
where the party against whom the doctrine is invoked had an opportunity
to know and meet the case against it, and the decision was within the
jurisdiction of the tribunal.
In a concurring judgment, Morden A.C.J.O. stated:
in obiter that procedural deficiencies in the first decision could properly be
taken into account in deciding whether or not to apply issue estoppel in a
Carthy J.A. suggested:
also in obiter, that the absence
of discovery and representation by counsel in an employment standards
proceeding, as well as the more modest financial stakes, could make it unfair to
bind a plaintiff in a subsequent wrongful dismissal action.
Court of Appeal held that a trial judge had properly refused to strike out a
wrongful dismissal claim on the basis of an issue estoppel alleged to have been
created by the prior decision of an employment insurance board of referees.
Discussing the principles governing issue estoppel, Laskin J.A. identified
discretion as the primary vehicle for ensuring that justice is served.
J.A. listed certain grounds on which he would, in any event, have declined to
apply the doctrine:
- First, the statutory scheme governing employment insurance
contemplated that claims will be� adjudicated quickly, inexpensively and
summarily.� The application of issue estoppel would undermine this
legislative aim, since employers and employees would be tempted to
over-litigate such proceedings in an effort to avoid an adverse ruling that
could influence a subsequent civil action. an adverse ruling that could
influence a subsequent civil action.
- Second, an individual normally applies for employment insurance
benefits immediately after losing his or her job. The claimant's vulnerability,
combined with the urgency of the situation, compromises his or her ability to
defend allegations of disentitling behaviour. The application of issue estoppel
in these circumstances could therefore lead to injustice.
- Third, the financial stakes of an employment insurance claim are
typically insignificant compared to those of an action for wrongful
- Finally, Laskin J.A. held that a
board of referees under the Act lacks the expertise to decide a wrongful
dismissal action. The context in which the board adjudicates allegations of
misconduct is a claim for benefits rather than a bipartite dispute relating to
an employee's summary dismissal.
The test for misconduct under the Act is not
the same as the requirement for just cause at common law.
third case in the trilogy, the Ontario Court of Appeal upheld a judge's decision
to strike out a wrongful dismissal action on the basis that findings of fact on
the central issue had already been made by an employment insurance adjudicator.
Recognizing the procedural limitations inherent in some administrative
proceedings, the Court cautioned against the mechanical application of issue
Coming to the main decision of Danyluk, the Supreme Court of Canada held, that
the underlying purpose of issue estoppel is to balance the public interest in
the finality of litigation against the corresponding public interest in ensuring
that justice is done.
The Court set out a two-step approach for determining
whether issue estoppel should be applied in a given case:
- First, the party
invoking estoppel must establish the constituent elements of the doctrine.
- Second, the court must determine whether, as a matter of discretion, issue estoppel ought to be applied. The primary issues here were whether the officer's
decision was sufficiently judicial, and whether the circumstances justified the
Court in exercising its discretion not to apply issue estoppel. Talking about
the discretionary factors, the court identified seven factors to determine
what is relevant to the exercise of discretion. Starting with, wording of
the statute, to check if it suspends or affect any civil remedy etc.,
secondly, purpose of the legislation, Where an employee has forsaken the
right to discovery and representation by counsel in pursuit of limited
relief by way of employment standards proceedings, it would be unfair to
bind him or her to a decision made in the course of those proceedings in a
subsequent civil action involving, perhaps, ten times the amount of money.
- Availability of an appeal, being the third one, in the context of the Harelkin
principle, which prevents a party from seeking judicial review where there
exists a satisfactory alternative remedy.
- Fourthly, procedural strategies, A court must also consider the
procedural safeguards available to the parties in the prior administrative
proceeding. Streamlined, expeditious procedures, though suitable in the
employment standards forum, may be inadequate to deal with complex issues of
fact or law.
- Fifthly, expertise of the decision maker which is that it should be
thoroughly fair and reasonable in front of the court of law.
- Sixth being,
circumstances giving rise to the prior proceeding, In Binnie J.'s view, it was
unlikely that the legislature intended� a summary procedure for smallish
claims to become a barrier to closer consideration of more substantial
and most importantly, a court must assess whether, in all the circumstances, the
application of issue estoppel would cause an injustice, particularly with
respect to the denial of a party's right to be heard.
Therefore, in recognizing
the relevance of discretionary factors such as the summary nature of employment
standards proceedings, as well as the financial and emotional vulnerability of
those seeking statutory benefits, the Court significantly lessened the risk to
employees of filing employment standards or employment insurance claims.
was decided in the context of an initial rejection of a claim
by an employment standards officer. The result may be different where an
employee appeals a denial of benefits and receives a full hearing, including the
right to present evidence, obtain disclosure, and cross-examine witnesses.
Issue estoppel as concept is used in Criminal cases as well as in civil cases
though mentioned in different sections of the Evidence act and civil procedure
code. There is distinction between doctrine of� res judicata
'issue estoppel' and 'rule estoppel' under section 115 Of the Evidence Act.
Doctrine of res judicata creates legal embargo on hands of the court to a
judicial determination of deciding the same question over again even though
earlier determination may be demonstrated erroneous.
The doctrine of res
judicata is based on rule of procedure. However, doctrine of mere estoppel under
section 115 Of the Evidence Act, there is embargo on the party to plead or prove
particular facts whereas in case of res judicata, the prohibition is operative
against the court to deal with the same kind of issue again and again.
The principle of issue-estoppel is entirely a creature of judicial decisions and
has not been embodied in any codified book. The essentials of the rule of issue-estoppel
are, one, the parties in the two proceedings must be the same; secondly, the
issue that was decided earlier must be identical with that which is sought to be
re-agitated. The issue-estoppel applies only when both the earlier and the
present proceedings are civil cases. In order to invoke the rule of issue
estoppel, not only the parties in the two trials should be the same but also,
the fact in issue, proved or not, as present in the earlier trial, must be
identical to what is sought to be re-agitated in the subsequent trial.
A concept that is linked with the Issue estoppels is Mutuality of estoppels, in
the prime case of Hollington v. Hewthorn
 there was a motor vehicle accident
involving Hollington and Hewthom. Hewthom was charged and convicted of careless
driving, contrary to the Road Traffic Act, 1930.
The estate of Hollington then
commenced a civil action against Hewthorn claiming damages. Counsel for the
estate of Hollington was Mr. Denning, later Master of the Rolls. He argued that
the conviction of Hewthorn in the prior summary criminal proceedings was
admissible evidence of negligence against Hewthorn in the civil proceedings.
parties to the summary criminal proceedings were the Crown as prosecutor and Hewthom as defendant; the parties to the civil proceeding were the estate of
Hollington as plaintiff and Hewthom as defendant.
The question for the Court of
- whether issue estoppel, or some variant thereof, could be applied
where there was no identicality of parties in the two proceedings;
- that is,
would the English courts insist upon the requirement of mutuality of estoppel?
The Court of Appeal decided that issue estoppel did not apply, and that evidence
of the prior criminal proceedings was inadmissible. The decision has been
roundly criticized and the reasoning is, at best, mechanical and clearly riddled
with numerous fallacies. Lord Denning's analysis and choice of the doctrine of
issue estoppel seems apt.
The doctrine of abuse of process is an inherent
jurisdiction that courts have exercised to ensure that they can control their
own process and that litigants do not abuse access to and the process of the
, the court will stay or dismiss frivolous proceedings,
vexatious and oppressive proceedings, proceedings that are duplicative of
proceedings pending in another forum or jurisdiction, and proceedings that do
not raise any triable legal issue. Admittedly, the principle of res judicata was
developed to deal with and eliminate abuse, but the doctrines of cause of action
and issue estoppel have now matured and strengthened to the point where they can
properly and fully deal with the particular kind of abuse in issue.
In conclusion, discretionary power of the court in every country holds the core
of the issue estoppels which in my opinion is the core to be followed by every
judge's instinct the on a case to case basis. Issues estoppels as a doctrine is
comparatively fresh perspective in India which should use more. Though more
prevalent in criminal proceedings, civil procedural code also uses the same for
its cases if not codified in the civil procedure code, it has through precedents
been used in various case laws.
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(last visited Oct 10, 2019)
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- ( 2 W.L.R. 304)
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(last visited Oct 10, 2019)
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- Angle v. Minister of National Revenue (1974),  2 S.C.R. 248, 47
D.L.R. (3d) 544
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(NOC) 109 (Bom)
-  K.B. 587,  2 All E.R. 35 (C.A.)
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