Stratton & Anor v Patel & Anor

A claim previously decided cannot generally be reopened by recasting it or relying on changed circumstances. Claims arising from a later, distinct breach may remain available where that breach creates a fresh cause of action. An undertaking to the court ordinarily creates an obligation enforceable by contempt proceedings, without a personal damages remedy. Exceptionally, the undertaking may also have contractual effect where it formed part of a bargain between the parties. Claims for relaunch expenses and net loss of income were arguable and unsuitable for strike out or determination as a preliminary issue before the evidence was complete.

The claimants operated premises affected by fire, leaks and drainage problems. In the principal judgment, the court ordered the defendant to procure remedial works and adjourned assessment of specified heads of damage. The defendant later applied to strike out post-trial claims, obtain summary judgment or preliminary determinations, and be discharged from the undertaking.

The disputed claims included relaunch expenses, loss of income during relaunch, losses caused by delay in completing the works, and alleged breach of the undertaking. The central issues were whether earlier findings barred the claims, whether delayed works could constitute fresh breaches, and whether the undertaking had contractual effect.

1. Earlier loss-of-profit claims. The claims for losses from the fire to judgment, and for the reasonable period in which the works should have been carried out, had already been decided or were implicitly rejected. The policy against re-litigation of an identical cause of action applied notwithstanding changed circumstances or material not previously available: [2013] UKSC 46, at para 26.
2. Fresh causes of action. A failure to execute the agreed remedial works diligently was at least arguable as a fresh breach of the repairing obligations. A claim for damages for breach of the undertaking was conceptually distinct from the causes of action considered in the principal judgment. Neither claim was struck out.
3. Effect of the undertaking. The general rule is that an undertaking to the court creates an obligation to the court and does not confer a personal remedy. The court considered the analysis in JSC BTA Bank v Ablyazov [2016] EWHC 230 (Comm). However, an undertaking may also have collateral contractual effect where it forms part of a bargain between the parties, as explained in Re Hudson [1966] 1 Ch 209, at pp 214–215. The detailed negotiations concerning the scope of the works made that contractual character arguable.
4. Relaunch claims. The claims for relaunch expenses and loss of income during relaunch were expressly preserved by the earlier order and were not shown to have been settled. Loss of income meant net loss, with appropriate consideration of expenses, although the precise expenses and the effect of rent-free and insurance-free periods required evidence.
5. Undertaking. The undertaking was not discharged while completion remained unresolved and the alleged breach had not been determined. The court invited submissions on directions for final determination.

The judgment records that the same court gave a principal judgment on 1 August 2014, reported as [2014] EWHC 2677 (TCC), followed by a costs judgment and orders dated 7 October 2014. The present judgment determined the defendant’s later application concerning the remedial undertaking and damages assessment.