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The principles of res judicata apply to the continuing duty
imposed by section 11 Landlord and Tenant Act 1985
11 August 2008
On 22 July 2008 judgment was handed down in
the matter of Sukai Onwuama v. London Borough of Ealing.
Browne Jacobson acted on behalf of the London Borough.
The first claim
The claimant originally brought a claim
against the council as her landlord for disrepair to her
flat. She alleged that she was experiencing problems with
damp and that the council were in breach of their repairing
obligations under section 11 of the Landlord and Tenant Act
1985.
The claimant did not obtain any expert
evidence in relation to the cause of the damp. At trial the
judge found that there was no evidence of rising damp or structural
problems. He therefore held that the likely cause of the damp
was condensation, which did not amount to disrepair under section
11 of the Act. The claimant’s claim therefore failed.
The second claim
The claimant subsequently issued a second
claim for disrepair. This included damp running from the day
after the trial of the first claim. She sought to rely upon
expert evidence to establish that the most likely cause of the damp
was the absence of a damp proof membrane and not
condensation. Following an application by the defendant, the
claimant was stopped from proceeding with the second claim in
relation to the damp because the cause of the dampness had been
determined in the first action and could not be re-litigated.
Appeal
The claimant appealed, submitting that the
principle of res judicata (to bar re-litigation) should not apply
to section 11 of the Act which imposes a continuing duty to keep
the premises in repair. The claimant further argued that
section 11 imposes a duty upon landlords in the public interest and
that to apply the principle would frustrate the will of
parliament.
Mr Justice Teare held that the application of
the principles of res judicata was in the public interest in that
there must be a finality to litigation. The application of
those principles to cases involving leases to which section 11
applied did not frustrate the will of parliament. Whilst
section 11 imposes a continuing duty on landlords to keep premises
in repair, there is nothing in the Landlord and Tenant Act 1985
which provides that a tenant may have multiple attempts to prove a
breach of duty by the landlord contrary to the principles of res
judicata.
The claimant was seeking to claim in the
second action in regard to the same damp to which she had
complained in the first action. The judge in the second claim
had been right to find that the claimant should be stopped from
reopening a factual issue that had already been determined against
her. Furthermore, Mr Justice Teare noted that even if the
claimant’s pleaded case had been expressly limited to the extent to
which the damp had worsened since the trial of the first action,
she would be stopped from contending that the damp had been caused
other than as found at the trial of the first action.
The appeal was therefore dismissed.
Conclusion
This case reinforces the point that where a
claimant fails to establish the cause of dampness at trial, they
can not then re-litigate the same matter in the event that they
subsequently obtain favourable expert evidence which shows the
finding of the judge in the first instance may have been
incorrect.
For more information or advice, please
contact Gary Ekpenyoung or Susan
Horridge.
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