Duhaime's Law Dictionary

Issue Estoppel Definition:

The proposal that an argument is moot as it has been previously decided, distinctly put in issue in an earlier proceeding where it was fundamental to the decision.

Related Terms: Estoppel, Res Judicata, Interest Reipublicae Ut Sit Finis Litium, Per Capita

Also used interchangeably with res judicata but see the judicial distinctions observed below.

Justice Harradence of the Alberta Court of Appeal wrote, in :

"Issue estoppel is a species of res judicata. It applies where an issue in a cause of action was decided in a previous action. It must be a finding that is fundamental to the outcome of the decision, so fundamental that if a different conclusion had been reached on the issue, the outcome would have been different. If such is the case, then this issue cannot be raised in subsequent litigation."

In Halsbury's Laws of England, 4th ed., vol. 16, p. 1030, ¶1530:

"An estoppel which has come to be known as “issue estoppel” may arise where a plea of res judicata could not be established because the causes of action are not the same. A party is precluded from contending the contrary of any precise point which, having once been distinctively put in issue, has been solemnly and with certainty determined against him. Even if the objects of the first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive in a second action between the same parties and their privies. This principle applies whether the point involved in the earlier decision, and as to which the parties are estopped, is one of fact or one of law, or one of mixed fact and law."

In R v Hogan, Justice Hogan offered this concise statement of law pertaining to the legal definition of issue estoppel:

"Issue estoppel can be said to exist when there is a judicial establishment of a proposition of law or fact between parties to earlier litigation and when the same question arises in later litigation between the same parties. In the later litigation the established proposition is treated as conclusive between those same parties."

In Shaju v. Canada, Minister of Citizenship & Immigration, Justice Nadon of the Federal Court of Canada used these words:

"The underlying notion of issue estoppel is to prohibit one party to previous litigation from putting a concluded issue, finally determined therein, into contention again in newly instituted proceedings taken against the same opponent before the same, or another, tribunal having jurisdiction to adjudicate and determine that issue anew."

In 1967, Mills v Cooper, Justice Diplock offered:

""This doctrine (of issue estoppel), so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him....

"Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation. That general rule applies also to criminal proceedings, but in a form modified by the distinctive character of criminal as compared with civil litigation. Here it takes the form of the rule against double jeopardy....

"I think with great respect that the use of that expression in criminal and civil proceedings alike may lead to confusion, for there are obvious differences-lack of mutuality is but one-between the application of the rule against double jeopardy in criminal cases, and the rule that there should be. finality in civil litigation."

The same Justice Diplock wrote, in his 1985 reasons for judgment delivered in DS v Silound:

"In English law, when a plaintiff, who, basing his claim on a particular set of facts, has already sued the defendant to final judgment in a foreign court of competent jurisdiction and lost, then seeks to enforce a cause of action in an English court against the same defendant based on the same set of facts, the defendant's remedy against such double jeopardy is provided by the doctrine of issue estoppel. It is far too late, at this stage of the development of the doctrine, to question that issue estoppel can be created by the judgment of a foreign court if that court is recognised in English private international law as being a court of competent jurisdiction. Issue estoppel operates regardless of whether or not an English court would regard the reasoning of the foreign judgment as open to criticism.

"To make available an issue estoppel to a defendant to an action brought against him in an English court on a cause of action to which the plaintiff alleges a particular set of facts give rise, the defendant must be able to show (1) that the same set of facts has previously been relied on as constituting a cause of action in proceedings brought by that plaintiff against that defendant in a foreign court of competent jurisdiction and (2) that a final judgment has been given by that foreign court in those proceedings."

In Carl Zeiss v Rayner & Keeler, Justice Guest of the House of Lords proposed these requirements of issue estoppel:

"... (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies...."

In R. v. Van Rassel, Supreme Court of Canada judge Beverley McLachlin opined that issue estoppel:

“... applies only in circumstances where it is clear from the facts that the question has already been decided.”



  • Carl Zeiss Stiftung v. Rayner & Keeler Ltd., #2, [1967] 1 A.C. 853
  • D S v Silound Verwaltungsgesellschaft mbH v Sennan (Owners), The Sennan, [1985] 2 All ER 104
  • Turigan v. Alberta, 53 D.L.R. (4th) 321 (1988)
  • Mills v Cooper, [1967] 2 All ER 100
  • Minister of Employment & Immigration v. Chung, [1993] 2 F.C. 42
  • R. v. Duhamel, 1981 ABCA 295
  • R v Hogan, [1974] 2 All ER 142
  • R. v. Mahalingan, 2008 SCC 63
  • R v Van Rassel, [1990] 1 S.C.R. 225
  • Shaju v. Canada (Minister of Citizenship & Immigration), 97 F.T.R. 313 (1995)

Categories & Topics:

Always looking up definitions? Save time with our search provider (modern browsers only)

If you find an error or omission in Duhaime's Law Dictionary, or if you have suggestion for a legal term, we'd love to hear from you!