Having concluded that issue estoppel and cause of action estoppel did not apply because the plaintiff in the two actions was different, McEachern C.J.S.C. (as he then was) said, at pp. 436-437: The principle which should govern was stated by Lord Denning M.R. in Tebbutt v. Haynes, [1981] 2 All E.R. 238 at p. 242, as follows: I venture to suggest this principle: if there has been an issue raised and decided against a party in circumstances in which he has had a full and fair opportunity of dealing with the whole case, then that issue must be taken as being finally and conclusively decided against him. He is not at liberty to reopen it unless circumstances are such as to make it fair and just that it should be reopened. [emphasis added] At p. 438 McEachern C.J.S.C. stated: Without deciding anything about the question of mutuality, it is my conclusion that, subject to the exceptions I shall mention in a moment, no one can relitigate a cause of action or an issue that has previously been decided against him in the same court or in any equivalent court having jurisdiction in the matter where he has or could have participated in the previous proceedings unless some overriding question of fairness requires a re-hearing. [emphasis added]
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