Evidence, Practice and Procedure: Issue Estoppel – Cost of a Preliminary Issue Application

In P & O Nedlloyd BV v Arab Metals Co & Anor [2006] EWCA Civ 1717 [2007] 1 WLR 2288 the Court of Appeal held that where an appeal set aside an order below the judgment appealed from was a nullity and the findings on which it was based could not found an estoppel as between the parties. Thus said More-Bick LJ:

29 ... Issue estoppel is a form of estoppel by record and depends ... on a decision of the court disposing of a substantive dispute between the parties. On a purely formal level it may be said that the setting aside of the order below expunges the only record from which an estoppel was capable of deriving its force. At a substantive level the setting aside of the order means that there is no longer any disposal to which the decision on the issue in question can be regarded as fundamental.

The decision in W...

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