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Disrepair – One bite at the cherry


Onwuama v Ealing LBC [2008] EWHC 1704 (QB).

The Claimant made a claim for s.11 disrepair (in person), alleging dampness and electrical problems. No expert evidence was put forward as to the cause of dampness. The claim largely failed as the Judge found the most likely cause was condensation rather than structural issues or rising damp.

The Claimant sought permission to appeal that judgment, with an expert report suggesting that lack of a damp-proof membrane was the cause of the dampness.

Permission was refused, but before that decision, the Claimant made a second claim on the basis of the damp and some other matters and including the same expert report as evidence. The Court found that the Claimant was estopped per rem judicatam from claiming that the cause of the disrepair was anything other than condensation.

The duty under Section 11 of the Landlord and tenant Act 1985 is of course a continuing duty. To succeed in a second action the Claimant must prove that the cause of the damp (which is the same damp or worse damp as was alleged in the first action) is structural. That issue has already been determined against the Claimant. In other words it has been determined that the damp is not disrepair within Section 11, and Section 11 does not apply to the damp in these premises.

The Claimant appealed on the basis that the dampness was a continuing breach of s.11 and to hold that this was res judicata was against the will of Parliament in s.11 Landlord and Tenant Act 1985 in imposing a duty upon landlords.

The Court of Appeal held that the principle of finality in litigation is in the public interest. A continuing duty under the L&T 1985 did not escape that principle:

It was held that that issue had already been determined against her and that the Claimant was estopped from reopening a factual issue which had been determined against her. I do not regard that as frustrating the will of the Parliament. There is nothing in the Landlord and Tenant Act 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 .

To the extent that the Claimant sought to rely on dampness existing prior to the first judgment, her claim was res judicata.

It was further submitted that “if the judgment were to stand the Claimant could never require the landlord to remedy dampness in the walls or floors of the premises no matter how caused. The cause of damp regardless of evidence to the contrary would always be deemed to be condensation.” This submission fails to understand the decision of HHJ Edwards. If there develops some new cause of damp in the flat caused by a want of repair then the Claimant can of course allege and prove that. What she cannot do is allege that the cause of the damp which was the subject of complaint in the first action was other than as found by the HHJ Nathan.

But any fresh damp must have a new cause as the issue in the first judgment was the cause of damp, not the existence of the damp. In the second claim, it was the same damp – as indicated by the same expert report being used for both permission to appeal and second claim – and what was contested was the cause. The cause was therefore res judicata.

Harsh, one might think, particularly as the Claimant was a litigant in person in the first claim. But probably right. The claim in disrepair is not for the effects of disrepair per se, but for the specific failure to repair, from which the effects flow. Once a judgment has been made on the specific cause, that is that.

However, one wonders if some canny pleading and limitation of periods of claim might have avoided this situation. The permission to appeal application, with expert report probably scotched this second claim, but it could perhaps have gone otherwise.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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