Moorjani & Ors v Durban Estates Ltd & Anor

Cause of action estoppel and merger bar a second action based on the same cause of action. The comparison concerns the causes of action, not the particular defects, breaches, loss or damage pleaded. Further particulars do not create a new cause of action where they arise from the same contractual promise or tort.

Where the later claim is based on a different cause of action, it may nevertheless be abusive under Henderson v Henderson. The applicant bears the burden of proving abuse. The court must undertake a broad, merits-based assessment of the public and private interests and all the circumstances. The mere fact that the matter could have been raised earlier is insufficient. Abuse will rarely be found without unjust harassment.

The claimants were long leaseholders of flats at Ivor Court. They claimed damages from the former freeholder, Durban Estates Ltd, for alleged breaches of repairing covenants, and from the successor freeholder for later breaches.

Durban applied to strike out the first claimant’s claim. He had previously sued Durban in the County Court for breaches of repairing obligations and had recovered damages, with the award later increased on appeal. Durban contended that the current claim concerned the same cause of action or, alternatively, matters which should have been raised in the earlier proceedings.

The issues were whether the current claims were barred by cause of action estoppel or merger, and whether pursuing them constituted abuse of process under Henderson v Henderson.

1. Disposition. The first claimant’s claims against Durban were struck out under rule 3.4(2)(b) of the Civil Procedure Rules 1998.
2. The relevant comparison was between the causes of action pleaded in the two proceedings, not between the detailed defects, breaches or losses relied upon. The County Court claim was properly characterised as a claim based on Durban’s alleged breaches of its repairing obligations under the lease.
3. The current claims under clauses 5(1), 5(2)(iii) and 5(4) concerned the same causes of action as the earlier claim. Clause 5(2), although identifying separate parts of the building, imposed a single promise to maintain, repair, redecorate and renew those areas. The claims under clauses 5(2)(i) and (ii) were therefore further particulars of the earlier cause of action.
4. The lift claim under clause 5(3) was also barred. The lifts and lift shafts fell within the Reserved Parts of the Building, so the clause repeated in substance the existing obligation to maintain and repair those parts.
5. Cause of action estoppel and merger operated independently and absolutely, including where the claimant had not known of the further factual matters when bringing the first claim, unless the earlier judgment could be set aside.
6. Alternatively, the claims were abusive under Henderson v Henderson. The applicant bore the burden of proof. The court had to make a broad, merits-based assessment, weighing the claimant’s interest, the defendant’s interest in finality and freedom from repeated litigation, and the public interest in access to justice and finality. The current claims could and should have been raised earlier and allowing them to proceed would amount to unjust harassment.

The judgment records that the earlier County Court proceedings resulted in an award of £1,500, which was increased by the Court of Appeal to £7,380. The present High Court proceedings were not an appeal from those decisions.