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Moorjani v Durban Estates Limited [2019] EWHC 1229 (TCC)

Mr Moorjani, the lessee of a flat in Ivor Court, Gloucester Place, NW1, brought a claim against the freeholder, Durban Estates Limited, in the County Court, in 2011. That claim went to trial in 2013, at which he was awarded limited damages in respect of disrepair to the common parts of the floor where his flat was located. Mr Moorjani appealed and his damages were increased, slightly, by the Court of Appeal ([2015] EWCA Civ 1252).

In 2018, Mr Moorjani, together with three other long lessees of flats in Ivor Court, brought a further claim for damages against Durban Estates, which had sold the freehold to the second defendant, Ivor Court Freehold Limited, in 2011. Ivor Court Freehold Limited was joined as a second defendant and was sued in respect of breaches of covenant alleged after the sale of the freehold.

Durban Estates Limited applied to strike out the claim by Mr Moorjani as an abuse of process on the ground that he was barred by the judgment he had obtained against Durban Estates in the County Court proceedings, from bringing any further claim in respect of the cause of action he relied upon in the County Court. It was also argued that to the extent that he was relying on any different causes of action in respect of period to which his earlier County Court claim related, the new claim amounted to an abuse of process under the doctrine in Henderson v Henderson (1843) 3 Hare 100.

Durban Estates’ application succeeded on both counts. In relation to cause of action estoppel, the Court focussed on the pleaded case in the County Court claim and although the issues had narrowed by the time of trial, it was the statement of case which was advanced by Mr Moorjani that required consideration in order to determine the cause of action on which he obtained judgment rather than the narrower focus of the judgment itself.

The judgment of Pepperall J. includes an interesting analysis of the decision of the Court of Appeal in Conquer v Boot [1928] 2 KB 336 about the extent to which a party is barred from coming back for a second attempt to claim damages in respect of an earlier breach of a contractual obligation. The judgment also emphasises the importance of a litigant being open with his opponent if he considers there is a prospect of seeking to bring a fresh claim in respect of a different cause of action which might have been advanced at the same time as an earlier claim, in order to reduce the risk of the Court holding that the second action is an abuse of process under the Henderson v Henderson doctrine.

A full copy of the judgment can be found here.

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