Rule of ‘Issue Estoppel’

The Principle of ‘issue estoppel’ has its origin in Blair v Curran (1939) 62 CLR 464), last para of page 531 of Australian High Court decision and it is stated in following manner:

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue- estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.” 

The supreme court has relied this principle in its various judgement. In case of Ravinder Singh vs Sukhbir Singh & Ors (Criminal Appeal No.-67 of 2013), the Supreme Court held following with regard to ‘Issue Estoppel’:

“18. The principle of issue-estoppel is also known as ‘cause of action estoppel’ and the same is different from the principle of double jeopardy or; autre fois acquit, as embodied in Section 403 Cr.P.C. This principle applies where an issue of fact has been tried by a competent court on a former occasion, and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence, which might be permitted by Section 403(2) Cr.P.C. Thus, the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. 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. If the cause of action was determined to exist, i.e., judgment was given on it, the same is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. (See: Manipur Administration, Manipur v. Thokchom, Bira Singh, AIR 1965 SC 87; Piara Singh v. State of Punjab, AIR 1969 SC 961; State of Andhra Pradesh v. Kokkiligada Meeraiah & Anr., AIR 1970 SC 771; Masud Khan v. State of U.P., AIR 1974 SC 28; Ravinder Singh v. State of Haryana, AIR 1975 SC 856; Kanhiya Lal Omar v. R.K. Trivedi & Ors., AIR 1986 SC 111; Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626; and Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam and Ors., AIR 2005 SC 2392).”

     (Emphasis Supplied)

Issue Estoppel Vs. Cause of Action Estoppel

In case of Hope Plantations Ltd vs Taluk Land Board Peermade & Anr, Appeal Civil 540 of 1986, the supreme court differentiated between issue and cause of action estoppel in following manner:

“In Arnolds & Ors. vs. National Westminster Bank Plc. [(1991)   2 AC 93] House of Lords noticed the distinction between cause of action estoppel and issue estoppel. Cause of action estoppel arises where the cause of action in the later proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not according to the law of England, prevent the latter to be re-opened. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided 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 re-open that issue. Here also bar is complete to re-litigation but its operation can be thwarted under certain circumstances. The House then finally observed.”

Further, in Arnolds & Ors. vs. National Westminster Bank Plc. [(1991)2 AC 93] House of Lords have also stated following type of estoppel:

“There are, however, four situations where in second proceedings between the same parties the doctrine of estoppel per rem judicatam may be invoked: (i) cause of action estoppel, where the entirety of a decided cause of action is sought to be relitigated; (ii) issue estoppel or, “decided issue estoppel,” where an issue is sought to be relitigated which has been raised and decided as a fundamental step in arriving at the earlier judicial decision; (iii) extended res judicata or “unraised issue estoppel,” where an issue is sought to be litigated which could, and should, have been raised in a previous action but was not raised (Henderson v. Henderson (1843) 3 Hare 100); (iv) a further extension of (iii) to points not raised in relation to an issue in the earlier decision, as opposed to issues not raised in relation to the decision itself. The instant case falls within (ii). The issue which the plaintiffs want to re-litigate is the same as that decided by Walton J., namely, the true construction of the lease as at the date of its execution.”

     (Emphasis Supplied)

Issue Estoppel Vs. Autre Fois Acquit:

The principle of ‘autre fois acquit’ or ‘double jeopardy’ is enshrined in Article 20(2) of the Constitution of India or section 300 of the Criminal Procedure Code, 1973 (old section 403 of Cr. P. C., 1898). In case of Piara Singh vs State Of Punjab, 1969 AIR 961, 1969 SCR (3) 236 following was stated with regard to ‘issue estoppel’ and ‘autre fois acquit’:

“………….the principle’ of issue-estoppel is different from the principle of double jeopardy or autre fois acquit as embodied in S. 403 of the Criminal Procedure Code. The principle of issue-estoppel is a different principle, viz. where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction    of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accuses is tried subsequently even for a different offence which might be permitted by the terms of s. 403(2), Cr.P.C…….”

The ‘issue estoppel’ is one of various species of estoppel, where litigant is barred from raising identical issue even in different case if issue was already decided in earlier case.

Rajni Sinha,

Advocate Bombay High Court,

7738080174