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Insights

04 July 2019

Can a Claimant bring a second action arising out of the same cause of action as the first claim?

This point was considered recently by the High Court (Technology and Construction Court) in the case of Moorjani & Others v. (1) Durban Estates Limited (2) Ivor Court Freehold Limited [2019] EWHC 1229. David Haines and Tanya Pinto of Charles Russell Speechlys LLP were instructed on behalf of Durban Estates Limited (“Durban”) who successfully obtained an order to strike out the Claimant’s claim on the ground that it was based upon the same cause of action as previous proceedings in which Judgment had already been given by the Court. This insight considers that decision, the risks in not fully particularising all claims in an action and the steps which can be taken by a Defendant if faced with a second claim arising out of the same facts as earlier proceedings.

Background

This claim concerned a block of flats in Central London, which Durban had owned as freeholder until 2011. The Claimant, who held a long lease of one of the flats in the building, brought proceedings against Durban in 2011 for breach of its repairing obligations in respect of the common parts. The Court made an award of damages in respect of disrepair to the third-floor of the common parts in the sum of £3,930 on appeal (“the First Action”).

In October 2018, the Claimant issued a further claim against Durban (and the current freeholder) claiming damages in excess of £32,000 against Durban for alleged breach of its repair obligations in relation to the common parts (for the same period as the First Action) (“the Second Action”).

Durban sought to strike out the Claimant’s Second Action on grounds that the parties were bound by the Judgment made in the First Action and the Claimant had already brought these claims or was aware of them and should have brought them as part of the First Action. Alternatively, the Claimant could and should have raised the claims in the First Action and so was debarred from doing so now.

What did the Court decide?

The Court held that the crucial question was whether the Second Action was based on the same cause of action as the First Action not whether the Claimant relied upon the same particulars of loss or damage. Upon reviewing the statements of case in the First Action, the Court found that the Claimant had set out its claim widely to include the common parts and the block generally albeit that the award of damages was made in relation to the third floor common parts only. Therefore, in the Court’s view, the Claimant’s claim was founded on a single cause of action namely; alleged breaches by Durban of its repairing obligations in respect of the common parts. So, the Claimant was barred from bringing a Second Action challenging the same cause of action as the First Action and because the cause of action was technically extinguished as a result of the Court having already given Judgment.

The Court carried out a balancing exercise between the Claimant’s interests in being able to pursue the Second Action, Durban’s interests in not having to face the Second Action in respect of alleged breaches of its repairing obligations which had already been determined in the First Action and the public interests in access to the Court and finality of proceedings. The Court held that the claims should have been made in the First Action and to allow the Second Action to proceed would be unjust harassment of Durban.

What does this mean for Claimants or Defendants?

Claimants should ensure that they properly investigate all aspects of their claim to ensure that are aware of all causes of action arising out of the same facts and all losses suffered as a result. It may be necessary for a Claimant to obtain expert advice to consider all other potential claims. A Claimant will then need to consider carefully with its legal advisers, the extent of the claim that it will bring as if a Claimant could and should have included a claim within the first set of proceedings, there is a strong risk that it will be prevented from doing so in any subsequent proceedings.
Defendants facing second actions brought by the same Claimant should review carefully whether the second claim is brought upon the same cause of action as the first. The Defendant will need to compare the causes of action relied upon in each particulars of claim and not just the items of loss or damage set out in the claim. If it is founded on the same cause of action as the first claim, Defendants may wish to consider making an application to strike out of the Claimant’s second claim at an early stage.

If a strike out application is successful, the proceedings will have been disposed of at an early stage and the Defendant will avoid incurring substantial costs of proceeding to a full trial, as happened in this case.


For more information please contact Laura Bushaway on +44 (0)20 7438 2261 or at laura.bushaway@crsblaw.com; David Haines on +44 (0)845 359 0026 or at david.haines@crsblaw.com; Tanya Pinto on +44 (0)1483 252 575  or at tanya.pinto@crsblaw.com.

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