Onwuama v London Borough of Ealing

Until recently the Claimant was the tenant of premises at 2 Harlech Tower, Park Road, East Acton, London W3. She lived there with her husband and 5 children. The Defendant was her landlord. The Claimant commenced proceedings against the Defendant alleging breach of duty under section 11 of the Landlord and Tenant Act 1985 and under section 4 of the Defective Premises Act. The breaches related to extensive damp to the walls, floors and ceiling of the premises and other matters. By an order dated 19 December 2007 HHJ Edwards ordered that issues in the Particulars of Claim which either (a) were raised and determined against the Claimant in an earlier claim (Claim no.5BF00053b) or (b) could and should have been raised and determined in that earlier claim be struck out from the Particulars of Claim.

In his judgment the judge identified those issues which were raised and determined against the Claimant, namely, claims based upon damp, electrical problems and flooding. So far as concerned those issues which could and should have been raised and determined he gave the Claimant permission to amend her claim to clarify which claims arose after 15 December 2005 (the date on which judgment was given in the earlier action).

This is an appeal from the decision of HHJ Edwards. It is submitted that the “damp” claim should not have been struck out.

Before referring to the judgment and the grounds of appeal it is necessary to refer to the two sets of proceedings.

On 10 January 2005 the Claimant commenced proceedings against the Defendants in respect of flooding, dampness and problems with wiring. In those proceedings she was not legally represented. Her case was presented by her husband. She did not serve any witness evidence or any expert evidence notwithstanding that she had been given permission to do so. The claim was heard by HHJ Nathan who gave judgment on 15 December 2005. In relation to the dampness claim he held that there was no evidence of rising damp but that there might well be high levels of condensation. He concluded that the were no structural problems of dampness and therefore there was no breach of the Defendant’s obligation to keep the premises in repair (see paragraphs 39-40 of the judgment).

The Claimant sought permission to appeal from the decision of HHJ Nathan. In support of that application reliance was placed on an expert’s report of Mr.Rogers dated 22 June 2006 who concluded that there was damp in the premises and expressed the opinion that the most likely cause was the absence of a damp-proof membrane to the concrete floor which was said to have been omitted during construction of the block in the 1960s. He further said that the “disrepair” (ie the damp) was likely to have been present for in excess of 3 years. Permission to appeal was refused by Eady J. on 1 March 2007.

Before permission to appeal in the first action had been refused the second action was commenced on 12 January 2007. The Particulars of Claim complain of damp in the living room, the hallway, the kitchen, the bathroom, the bedrooms and the common parts. They appear to be based upon the report of Mr. Rogers, as updated on 22 February 2007. In that report he said that the most likely causes of the damp were the absence of a damp-proof membrane in the floor or the possibility of concealed leaking pipework buried within the floor screed. He said the “disrepair” is likely to have been present for in excess of 7 years. The Particulars of Claim complained of other matters as well.

The Defendant considered that there was “overlap” between the subject-matter of the two claims and applied to strike out the second action in whole or in part. The application was heard on 22 June and 12 October 2007. Judgment was given on 19 December 2007.

HHJ Edwards held that the Claimant was estopped per rem judicatam from claiming that the cause of damp in the flat was other than condensation as found by HHJ Nathan. He said as follows:

“36.

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.

37.

……………To succeed, the Claimant has to …….show that the cause of the damp is structural, and not a failure by the tenant in causing or permitting condensation. That is an issue which has already been determined against the tenant.

38.

The fact that there is, as the Claimant contends, now new and better evidence from the Claimant’s expert Mr. Rogers and from new witnesses, does not affect the principle.”

The first ground of appeal is that “the judge was wrong to hold that since the previous judgment held that the damp in the premises was condensation that issue had been determined against the Appellant and section 11 does not apply to the damp in the premises.”

Counsel suggested in his oral submissions that the judge was wrong to conclude that this was a case of issue estoppel. He suggested, by implication, that there was merely a finding of fact on a collateral issue. However, the judge rightly concluded that the determination as to the cause of the dampness was a necessary part of the decision of HHJ Nathan that there was no breach of duty (see paragraphs 30 and 40). Accordingly, there was an issue estoppel as to the cause of the dampness; see Thoday v Thoday 1964 1 AER 341 at p.352.

Counsel submitted in his skeleton argument that res judicata does not or should not apply to section 11 of the Landlord and Tenant Act which imposes a continuing duty to keep the premises in repair. Reference was made to authorities which suggested that res judicata did not apply in the realm of judicial review or in cases concerning the changing accommodation needs of children. It was said that section 11 imposes a duty upon landlords in the public interest and that to apply res judicata would frustrate the will of Parliament. This submission was made to HHJ Edwards who nevertheless applied the well known principles of res judicata. In my judgment he was plainly right to do so.

The application of the principles of res judicata is in the public interest; there must be a finality to litigation. The application of those principles to cases involving leases to which section 11 applies does not frustrate the will of Parliament. In the first action, there was a dispute as to whether damp had been caused by a breach of the landlord’s duty. It was held that it was not so caused. In the second action the claimant alleged that the cause of the damp was a breach of duty by the landlord. 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. The authorities concerning judicial review and the changing accommodation needs of children provide no support for not applying the principles of res judicata to a dispute between landlord and tenant as to the cause of damp in the demised premises.

In his oral submissions Counsel relied upon two authorities concerning landlords and tenants. The first (chronologically) was Bradshaw v M’Mullan [1920] 2 Irish Reports. In that case it was argued that the landlord was estopped per rem judicatam from contending that a provision that rent be paid inclusive of rates was void because it was prohibited by statute. Viscount Finlay, Viscount Cave, Lord Atkinson and Lord Shaw held that there had been no prior adjudication and therefore res judicata could not apply. Lord Shaw made a further observation to the effect that in any event the doctrine could not assist a party who is a asking a court to give judicial effect to a transaction which a statute distinctly forbids (see pp.425-6). I do not consider that that observation has any relevance to the present case. The second case was Griffiths v Davies [1943] 1 KB 618. In that case a tenant applied to the county court for the lawful rent to be assessed. The landlord said that the tenant was was estopped per rem judicatam from doing so because in an earlier case the landlord had claimed possession for non-payment of rent. Possession was ordered but suspended so long as the tenant paid rent. The tenant did not take the point in those earlier proceedings that the rent was in excess of the lawful rent. Lord Greene MR referred to Lord Shaw’s judgment in Bradshaw v M’Mullen as authority for the proposition that a statutory prohibition or direction cannot be overridden or defeated by a previous judgment between the parties. Again, I do not consider that that proposition or its application in Griffiths v Davies has any relevance to the present case. This case does not involve a statutory prohibition or direction. This case involves a term implied by statute and a finding by a court that it has not been breached. There is no reason why the principles of res judicata should not apply in that context.

Counsel stressed that the landlord’s duty to keep premises in repair is a continuing duty. That is correct. The duty existed before December 2005 and continued after December 2005. But to the extent that the Claimants seeks to rely upon dampness which existed not only after but also before December 2005 she will be confronted by the decision in the first action that the cause of that dampness was not a breach of duty by the landlord.

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.

It is therefore crucial to know whether the Claimant is claiming in the second action in respect of the same damp in respect of which she complained in the second action. HHJ Edwards understood she was. There was no challenge to that understanding on this appeal. Moreover, the fact that the expert report of Mr. Rogers was relied upon both to seek permission to appeal from the judgment of HHJ Nathan and in support of the second action suggests that his understanding was correct. That report refers to the disrepair, that is, the damp, being 3 years old (in the 2006 report). It must therefore be referring to the damp of which complaint was made in the first action. The Particulars of Claim in the second action did not give particulars as to when the damp developed and there was no attempt in the Particulars of Claim to limit the claim to damp arising after the date of HHJ Nathan’s judgment in December 2005. It therefore appears clear that the Claimant is seeking to claim in the second action in respect of the same damp of which she complained in the first action.

Towards the end of his reply counsel suggested that it is not possible to say that the entirety of the claim relates to damp which developed before December 2005. He pointed out that damp grows or extends and that he should be permitted to claim in so far as the damp extended or worsened after December 2005. Although this suggestion was made following questions by me I do not consider that it can assist the Claimant. The finding in respect of which the judge found there was an issue estoppel was as to the cause of the damp. Thus even if the claimant’s pleaded case had been expressly limited to the extent to which the pre-December 2005 damp had worsened post-December 2005 she would be estopped from contending that that damp had been caused other than as found by HHJ Nathan.

I must therefore reject the first ground of appeal. The difficulty in which the Claimant finds herself has arisen because, having failed to adduce expert evidence before HHJ Nathan, the court made adverse findings as to the cause of the damp. It is well recognised that the principles of res judicata “prevent a party relitigating a claim he has lost, even if he is now able to show that the earlier decision was wrong” (see Phipson on Evidence 16^th.ed. para.44-24). Whilst the application of an issue estoppel can be prevented in special circumstances (see Arnold v NatWest Bank [1991] 2 AC 93) it was not suggested that such special circumstances existed in this case.

The second ground of appeal relates to that part of the order which concerns claims which could and should have been litigated in the first action but were not. The basis of this order was the decision in Henderson v Henderson (1843) 3 Hare 100 at pp.114-5. The judge gave the Claimant an opportunity to amend her case to identify claims based upon separate discrete causes of action arising after 15 December 2005 which could not have been raised in the first action. She has availed herself of that opportunity.

The ground of appeal does not appear to challenge the application of the principle in Henderson v Henderson. Instead it focuses upon a complaint of lack of heating. It is said that the claimant ought to be able to claim in respect of this because a landlord can only be held liable for want of repair after he has been given notice of a complaint and notice of the lack of heating was only given to the landlord in January 2006. I note from the amended pleading that the complaint in respect of lack of heating is made as from 20 January 2006. If it is right that a landlord is only liable once notice is given and that the relevant notice was not given until January 2006 then it would seem that the complaint could not have been made in the first action. However, this is a matter to be decided in the action. It is not a matter which arises on appeal. There does not appear to be any reason advanced (beyond that advanced under Ground 1) for suggesting that the order made by HHJ Edwards was wrong in law.

It therefore follows that this appeal must be dismissed.