Tenants will only have one ‘bite of the cherry’ to prove in a
court of law that their landlords have breached their legal
obligations to carry out repairs to premises according to legal
experts at Browne Jacobson.
The warning follows the recent High Court decision in Sukai
Onwuama v. London Borough of Ealing. In 2005 Onwuama brought a
claim against her landlord, the London Borough of Ealing, for
failing to carry out repairs to her damp infested property under
section 11 of the Landlord and Tenant Act 1985. The tenant failed
to provide any expert evidence as to the cause of the damp. Her
claim was dismissed and it was held that the damp was caused by
condensation which did not amount to a breach under the Act.
In 2007 the tenant issued a second claim complaining, once
again, of damp. This time she presented expert evidence to
establish that the most likely cause of the damp was the absence of
a damp proof membrane and not condensation. She was prevented from
proceeding with the second claim because the cause of the dampness
had been determined in the first case and could not be
re-litigated. She appealed this decision and once again it was
dismissed.
In arriving at its decision the High Court applied ‘res
judicata’, which refers to a principle in English law which states
that once a case has been decided upon by a Court the same parties
cannot attempt to raise the same issue at a later date.
Law firm Browne Jacobson acted for the London Borough of Ealing.
Gary Ekpenyoung, an Associate Solicitor in the Social Housing Team
at the firm, said:
“This case reinforces the point that tenants will only have
one crack of the whip. Once a judgment has been made on the cause
of a problem, it is final. Tenants who fail to establish that their
landlords have not met their legal obligations will not be allowed
to re-litigate on the same matter just because they have obtained
favorable expert evidence at a later date which shows the original
findings may have been incorrect.”
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