DUPLICATIVE LITIGATION: ISSUE ESTOPPEL, ABUSE OF PROCESS AND THE DEATH OF MUTUALITY
AbstractThe traditional requirement of Anglo-Canadian law, that issue estoppel applies only as betwen those who were parties to both the earlier and subsequent litigation, is fast disappearing. However, the disappearance of this requirement of mutuality is presently confused by the courts' invocation of the rubric of 'abuse of process', rather than a straight abandonment of the requirement of mutuality. This article describes the abandonment of mutuality in American law and the emergence of the doctrine of non-mutual issue estoppel, and critically examines the movements in Canadian and English law in the same direction. While advocating that Anglo-Canadian courts openly adopt non-mutual issue estoppel, the author puts forward a number of proposals designed to make the handling of duplicative litigation both fairer and more efficient.
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