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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 claimants 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 claimants 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.

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