Law of Evidence- Issue estoppel - application - Criminal Law - Civil Law

“Associated with the doctrines of law pertaining to estoppel and res judicata, is another doctrine referred to as ‘issue estoppel’. Spencer Bower and Handley on “Res Judicata” (cited above, at p. 107) states that, “ a decision (a reference to the final judicial decision contained in a previous case) will create an issue estoppel, if it is determined as an issue in a cause of action as an essential step in the reasoning. Issue estoppel applies to fundamental issues determined in an earlier proceeding which formed the basis of the judgment (the judgment in the previous case). There is nothing new about issue estoppel, which was recognised in the advice of the judges of the House of Lords in the Duchess of Kingston Case.”

In common law, the doctrine of issue estoppel is a rule of evidence or of procedure, founded upon the broader concept of estoppel, and derived from the doctrine of res judicata. It prevents (or prohibits) a question that was essential to the first action and judicially determined in such action, from being re-litigated in a subsequent case and in a different cause of action between the same parties. Thus, the doctrine of issue estoppel is distinct from the doctrine of res judicata. Essentially, issue estoppel means that once a particular issue (as opposed to an entire cause of action or the commission of an offence) has been conclusively judicially decided upon in a legal proceeding, until the ensuing order is duly vacated or set aside by a higher judicial tribunal which exercises appellate or revisionary jurisdiction or by exercising the extraordinary jurisdiction of restitutio in integrum, the original judicial finding relating to such particular issue cannot be contested once again in subsequent judicial proceedings involving the same parties or their privies. In civil judicial proceedings, the doctrine of issue estoppel is aimed at ensuring finality in litigation, the avoidance of the emergence of contradictory judgments and conservation of judicial resources.  

As issue estoppel stems from a matter on the face of a judicial record (often the contents of a judgment or judicial order), the fundamental pre-requisites for its application, are (a) the existence of a previous judgment or judicial order between the same parties or their privies, and (b) the judgment or judicial order in issue being admissible and relevant in the subsequent case in which it is sought to be presented as evidence for the purpose of generating the estoppel. In other words, the purpose of creating an estoppel would be to bar the opposing party proving a fact contrary to the findings contained in the previous judgment or judicial order.

However, it is noteworthy that, in terms of the Law of Evidence, unless specially provided for, as a general rule, a judgment or a judicial order of a previous case is not admissible and relevant in subsequent judicial proceedings. However, the law may for good reason, specifically provide

for the admissibility and relevancy of a judgment or judicial order of a previous case. It is sections 40 to 43 of the Evidence Ordinance that provide for situations where judgments of previously decided cases may be presented as evidence at a subsequent trial.

Issue Estoppel is certainly recognised in civil proceedings in Sri Lanka, and has been discussed in the cases including in Ukku Bandage Walli Ethana vs. Jayathu Ralalage Ranmenika [CA 471/2000(F), CA Minutes of 23rd September 2019]. It is necessary to state that, as held by Justice Arjuna Obeyesekera in Ensen Trading and Industry (Pvt) Limited vs. Hon. Mangala Samaraweera and Others (CA Writ Application No. 41/2019, CA Minutes of 1st April 2019), and by Justice Janak de Silva in Saundra Marakkala Imasha Lahiruni Upeksha and Others vs. Hasitha Kesara Weththimuni, Principal, Dharmasoka College, Ambalangoda and Others

(CA 166/2017, CA Minutes of 4th April 2019), the doctrine of issue estoppel is applicable in Sri Lanka in matters involving judicial review of executive and administrative action as well.

In view of the foregoing, I hold that the doctrine of issue estoppel is not applicable to criminal proceedings in Sri Lanka.

Thus, a claim or cause of action that could have been or should have been raised in an earlier action cannot be raised in a second action. Issue relating to such cause of action or claim are estopped from being raised again.”

SC Appeal No. 116/2022 decided on 08.05.2025