Issue estoppel
Produced in partnership with Jack Mitchell of Old Square Chambers

The following Dispute Resolution practice note produced in partnership with Jack Mitchell of Old Square Chambers provides comprehensive and up to date legal information covering:

  • Issue estoppel
  • What is issue estoppel?
  • Issue estoppel—earlier proceedings in a foreign court
  • Issue estoppel—necessarily decided
  • Necessarily decided—cross-over with Henderson abuse
  • Issue estoppel—identity of issue
  • Issue estoppel—exception for special circumstances
  • Issue estoppel—what materials can the court take into account?

Issue estoppel

Issue estoppel is a sub-species of the res judicata doctrine (see Practice Note: The doctrine of res judicata). In addition to the general key requirements for establishing a res judicata (see Practice Note: Key requirements to establish a res judicata), this Practice Note considers the specific requirements when seeking to establish an issue estoppel.

For guidance on cause of action estoppel, see Practice Note: Cause of action estoppel.

What is issue estoppel?

Issue estoppel arises where a particular issue(s), forming a necessary ingredient in a cause of action, has been litigated and decided in a first action and, in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that particular issue(s).

Per Diplock LJ in Thoday:

'There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff to…establish his causes of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different cause of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled

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