Onwuama v London Borough of Ealing

Issue estoppel and the wider principles of res judicata apply to a continuing landlord’s repairing obligation under section 11 of the Landlord and Tenant Act 1985. A tenant cannot relitigate the cause of the same damp merely because better evidence is later available, or because the damp has worsened. The earlier determination remains binding on that cause. A genuinely new cause of damp arising after the earlier judgment may be claimed. Claims based on separate causes of action which could and should have been raised earlier may also be excluded under the principle in Henderson v Henderson, subject to claims which only arose later.

The claimant, formerly a tenant of premises let by the respondent local authority, brought a second action alleging breaches of the repairing obligation under section 11 of the Landlord and Tenant Act 1985 and section 4 of the Defective Premises Act. An earlier action had concerned flooding, dampness and electrical problems. In that action the court found that the damp was not structural and did not result from a breach of the landlord’s repairing duty.

The second action relied on further expert evidence and alleged substantially the same damp. The Brentford County Court struck out issues which had been determined, or which could and should have been raised, in the earlier proceedings. The appeal concerned whether the damp claim was barred and whether claims arising after the earlier judgment could proceed.

1. Appeal dismissed. The earlier determination that the damp was caused by condensation, rather than structural disrepair, was a necessary part of the decision that the landlord had not breached the repairing obligation. It therefore created an issue estoppel: Thoday v Thoday 1964 1 AER 341 (para [11]).

2. The fact that section 11 imposes a continuing duty does not displace res judicata. The principles serve the public interest in finality and do not frustrate Parliament’s intention. The claimant could not make repeated attempts to prove that the same damp was caused by a breach of duty, even with better evidence available later (paras [12]-[15], [19]).

3. The authorities concerning statutory prohibitions did not assist. Bradshaw v M’Mullan [1920] 2 Irish Reports and Griffiths v Davies [1943] 1 KB 618 concerned attempts to give effect to matters prohibited by statute. The present case concerned a statutory repairing term and a prior finding that it had not been breached (para [14]).

4. A new cause of damp arising after the earlier judgment could be pursued. However, an increase or worsening of the same damp did not avoid the estoppel where the cause of that damp remained the issue previously determined (paras [16]-[18]).

5. The order also properly reflected Henderson v Henderson (1843) 3 Hare 100, pp 114-115, by excluding matters which could and should have been litigated earlier, while permitting genuinely separate causes of action arising after 15 December 2005. Whether the lack-of-heating complaint arose only after notice in January 2006 was a matter for trial. Although issue estoppel may be avoided in special circumstances, none was advanced: Arnold v NatWest Bank [1991] 2 AC 93 (paras [19]-[21]).

• Brentford County Court: On 19 December 2007 HHJ Edwards struck out issues determined in the earlier action, and issues which could and should have been raised there, while permitting amendment for distinct claims arising after 15 December 2005.
• High Court (Queen’s Bench Division): The appeal against that order was dismissed.