Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality

The traditional requirement of Anglo-Canadian law, that issue estoppel applies only as betwen those who were parties to both the earlier and subsequent litigation, is fast disappearing. However, the disappearance of this requirement of mutuality is presently confused by the courts\u27 invocation of the rubric of \u27abuse of process\u27, rather than a straight abandonment of the requirement of mutuality. This article describes the abandonment of mutuality in American law and the emergence of the doctrine of non-mutual issue estoppel, and critically examines the movements in Canadian and English law in the same direction. While advocating that Anglo-Canadian courts openly adopt non-mutual issue estoppel, the author puts forward a number of proposals designed to make the handling of duplicative litigation both fairer and more efficient

New Trends in Procedural Law: New Technologies and the Civil Litigation Process

The impact of new techonologies in the US, the UK, Canada, Australia, Singapore and Israel are compared

Solicitor-Client Privilege and Litigation Privilege in Civil Litigation

This paper examines the nature and scope of solicitor-client privilege and litigation privilege. Contrary to a recent article suggesting that there are no real differences between them, it is argued that the two privileges are distinct in terms of both their underlying purposes and the requisite conditions to invoke them. Most importantly, confidentiality is a requirement of solicitor-client privilege but not of litigation privilege. Moreover, extending solicitor-client privilege to communications from third parties (as proposed in the recent article) would be dangerous. It would stretch the scope of that privilege beyond its justification of necessity, and open the way for lawyers to develop and offer a new product line : namely, confidentiality. Whatever third party communications a client desires to keep secret could conveniently be clothed with privilege simply by having lawyers act as a conduit for such communications and asking them for their legal opinion thereon (as it now appears the tobacco industry has been doing for some time with research data). A strong policy reason for confining solicitor-client privilege to direct communications between lawyer and client is to limit the potential abuse of the privilege. Further, since the assertion of privilege inevitably impedes the truth finding process, the public interest is best served by confining the scope of solicitor-client privilege within narrow limits. For the same reason, the concept of agents must be accorded a narrow meaning in the context of solicitor-client privilege, so as not to render agency a back-door through which third party communications attract solicitor-client privilege