ISSUE ESTOPPEL: MUTUALITY OF PARTIES RECONSIDERED
AbstractThe doctrine of issue estoppel prevents parties from relitigating any issue which was necessarily and specifically decided in prior litigation between them. There is a rule, often referred to under the rubric "mutuality of parties", that issue estoppel only operates where the parties to the subsequent litigation were also the parties in the prior litigation. The United States Supreme Court has abandoned this requirement except where, in the exercise of the court's discretion, it would be unfair to work an estoppel. English and Canadian courts have also felt uneasy about the requirement but, rather than eliminate it, they have reached the desired result through the application of the principle of abuse of process. As well, English and Canadian legislators and judges have decided that convictions in prior criminal proceedings can be used as prima facie evidence in the subsequent civil proceedings, subject to rebuttal. The thesis of this article is that English and Canadian law has developed in an undesirable way. Canadian judges ought to adopt and clearly articulate the doctrine of issue estoppel, without the requirement of mutuality of parties. Moreover, Canadian legislators and judges ought not to encourage or countenance any half-way measures by which proof of prior criminal convictions are admissible as prima facie proof, subject to rebuttal evidence.
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