Res judicata, issue estoppel and abuse of process

Res judicata, issue estoppel and abuse of process are often confused. Certainly the concepts are related in that they are designed to protect the Court and litigants from endless, and frivolous, litigation.

Last week’s Manitoba decision in Glenko Enterprises Ltd. v. Keller, 2008 MBCA 24 describes the concepts, and their conditions precedent, in a helpful fashion:

33 For issue estoppel to apply, three requirements must be satisfied:

(1) the same question has been decided in both actions;

(2) the judicial decision which is said to create the estoppel was final; and

(3) 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.

…

38 For cause of action estoppel to apply, four requirements must be satisfied.

(1) there must be a final decision of a court of competent jurisdiction in the prior action;

(2) the parties to the subsequent litigation must have been parties to or privies of the parties to the prior action (mutuality);

(3) the cause of action in the prior action must not be separate and distinct; and

(4) the basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.

…

55 [ There are] six factors or policies that are to be considered in a plea of abuse of process: (1) that there should be an end to litigation; (2) that a party should not be “twice vexed by the same cause”; (3) that judicial resources are scarce; (4) that litigants’ resources are scarce; (5) that consistency of results is vital to the legal system; and (6) that finality of results is vital to the legal system. Importantly, the lack of mutuality does not preclude an argument of abuse of process.