Mansing Moorjani v Desmond Kilcoyme

Court:Queen's Bench Division
Docket Number:Case No: QB-2019-002623
Judge:Master David Cook, Master Cook
Judgment Date:21 Dec 2020
Jurisdiction:England & Wales
Neutral Citation:[2020] EWHC 3463 (QB)

[2020] EWHC 3463 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Master Cook

Case No: QB-2019-002623

Between:
Mansing Moorjani
Claimant
and
Desmond Kilcoyme
Defendant

Mr Moorjani appeared in person

Suzanne Chalmers (instructed by Browne Jacobson) for the Defendant

Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be

21

December 2020 at 10:30 am

Hearing dates: 16 October 2020

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Master Cook

Introduction

Master David Cook
1

By application notice dated 5 November 2019 the Defendant applies to strike out the Claimant's claims on the basis that they are an abuse of the process of the court, in that they constitute an impermissible collateral attack upon judgments of HHJ May QC and the Court of Appeal, and/or there are no reasonable grounds for bringing the claim, alternatively for summary judgment on the grounds that they do not have real prospects of success.

2

I heard this application on 16 October 2020 when arrangements were made for the hearing to take place in person due to the fact that Mr Moorjani had hearing difficulties which meant that he could not easily participate in a remote hearing. Unfortunately there was insufficient time available to enable Ms Chalmers to complete her submissions in response and Mr Moorjani had made some points in the course of his submissions where he could not immediately point to the relevant documents. In the circumstances I asked Mr Moorjani to provide additional written submission and permitted Ms Chalmers to respond in writing. These written submissions were uploaded to the courts' electronic case management system, Ce-file. Unfortunately they were not provided to me directly or bought to my attention on submission, accordingly the preparation of this judgment has been delayed, for which I apologise.

3

The relevant facts are set out in the witness statement of Mr Radford made in support of the Defendant's application and are not in dispute. The Claimant has not filed any evidence in response.

4

The Defendant is a self—employed barrister, practising from Chambers at 42 Bedford Row. From October 2009, he was retained by the Claimant under the Bar Council Direct Access Scheme in connection with a number of matters, including two claims which are the subject matter of this action;

i) a claim by Mr Moorjani against Durban Estates Limited (‘Durban’) (Claim Number 1WL00306) (‘the Durban Claim’); and

ii) a claim by Mr Moorjani against Mr Wahab & Others (‘Wahab’) (Claim Number 1CL00893) (‘the Wahab Claim’).

5

Both the Durban Claim and the Wahab Claim arose out of Mr Moorjani's leasehold ownership of Flat 67, Ivor Court, Gloucester Place, London NW1 SBN (‘the Property’). Ivor Court is a block of mansion flats. in April 2005, the Property was damaged due to a water leak which emanated from a radiator in Flat 82, Ivor Court (‘Flat 82’), the flat situated directly above the Property (‘the 2005 leak’). Further damage to the Property followed a subsequent water leak which also emanated from Flat 82, this time from a cistern, in 2006 (‘the 2006 leak’).

The Durban claim

6

In the Durban Claim, the Claimant claimed damages against the former freehold owner of Ivor Court, Durban. He claimed damages on the grounds that:

i) Durban had failed to keep the common parts of Ivor Court in good repair;

ii) Durban had failed to action and diligently and expeditiously deal with an insurance claim arising out of the water leak damage to the Property (in breach of an implied covenant of the Lease and/or a fiduciary or quasi—fiduciary duty owed to the Defendant);

iii) Durban were in breach of a duty of care to avoid causing the Defendant economic harm arising out of its undertaking of responsibility to carry out repair and redecoration works following the 2005 leak.

7

In the action, the Claimanrt claimed damages for distress and inconvenience arising out of:

i) the condition of the common parts and

ii) the condition of the Property following the 2005 and 2006 leaks. His claim included a claim for loss of rent from December 2005 to July 2006 on the grounds that, but for Durban's breach, he would have let out the property. In addition, he claimed costs incurred in carrying out remedial works to the electrical system and skirting boards (£630) and the estimated cost of remedial works to 5 doors (£2,500) and the master bedroom (£1,950) which he alleged should have been carried out by Durban's contractors but were not.

8

On 10 April 2012, Durban made a Part 36 offer to settle the claim for £10,000 together with costs, to be assessed if not agreed. The Defendant advised the Claimant as to the merits of his claim in conference on 11 May 2012 and in writing on 21 May 2012. The Defendant advised that the offer placed the Claimant at considerable risk as to costs, and that he should consider the offer very seriously. As the Claimant accepts in paragraph 60 of his Particulars of Claim, he was advised by the Defendant to accept the offer. The Claimant rejected this advice and he did not accept the offer. He did not make any realistic counter proposals and the matter proceeded to trial, where he was represented by the Defendant.

9

Following the trial, HHJ May QC (as she then was) gave Judgment on 31 July 2013. In summary, she held that:

i) The claim for loss of rent failed because, as a matter of law, Durban did not assume a duty of care to perform the repairs or avoid causing the Claimant economic loss. As a matter of fact, he had not established that he was unable to let the Property by reason of the damage caused by the 2005 leak.

ii) Durban owed a duty to act reasonably in liaising with insurers to identify and arrange the repairs. Durban should have raised the outstanding items of repair (the doors, the master bedroom and the electrics) with insurers; but the Claimant had failed to prove that insurers would have paid for these additional items.

iii) In breach of covenant, Durban had failed to apply insurance monies received by about April 2006 in reinstatement of the premises. In fact, the premises were not repaired until February 2007. However, the Claimant could not prove any inconvenience as a result, because he was living elsewhere during that period, although the Property was habitable.

iv) Durban was also in breach of covenant in failing to maintain the common parts from 2005 until 2011. However, as the Claimant was not actually living at the Property during the period from 2005 to 2008, he was only entitled to damages for inconvenience / loss of amenity for the period from 2008 to 2011 which she assessed in the sum of £500 per year.

10

As a result, the Claimant was awarded damages of £1,500. Because he had failed to beat Durban's offer, he was ordered to pay 50% of the costs incurred by Durban prior to 11 May 2012 (the end of the relevant period for acceptance of Durban's Part 36 Offer).

11

The Claimant sought permission to appeal the decision on a number of grounds. A number of these grounds failed. Permission to appeal was granted in relation to two issues:

i) whether the Judge was wrong to refuse to award damages for inconvenience for a period when the Claimant was not living in the Property and/or whether the award was too low; and

ii) whether the Judge was wrong to dismiss the claim for the cost of completing the additional repairs. Throughout the appeal process, the Claimant was represented by alternative counsel, Mr Simon Williams.

12

On appeal, Moorjani v Durban Estates [2015] EWCA Civ 1262, the Court of Appeal rejected the submission that the assessment of general damages for loss of amenity due to the condition of the common parts was too low. It held that the claim for the cost of completing repairs to the doors and the bedroom should have succeeded and awarded damages of £3,450. It held that the fact that the Claimant was not living in the flat was not fatal to his claim for damages for inconvenience, but it was relevant to the quantification of his loss and awarded £3,930 in respect of his impaired amenity. He was awarded total damages of £8,880 together with interest, but he had still failed to beat the Part 36 offer. As to the costs incurred prior to the end of the relevant period, no order for costs was substituted for the order that the Claimant should pay 50% of Durban's costs.

The Wahab Claim

13

In the Wahab Claim, the Claimant claimed damages against Mr Wahab and Others as the owners of Flat 82, alleging that they were liable to him in nuisance / negligence and/or under the doctrine in Rylands v Fletcher for damage caused by a series of leaks from their property, including the 2005 leak and the 2006 leak.

14

According to the Claimant, he accepted an offer to settle the claim for £16,000 made on 3 September 2013, but the offer did not determine interest or costs and so he applied to the Court. The Defendant did not represent the Claimant at the hearing. The Claimant states that the hearing was determined by District Judge Taylor, who made no order as to costs.

The Claimant's claims against the Defendant

15

The Claimant acts in person and has drafted his own particulars of claim. He told me, in the course of the hearing that he had been a law lecturer before his retirement, none the less, as Mr Radford observed in his witness statement, the particulars are drafted in a narrative style and it is not at all easy to separate the narrative from the alleged breaches of duty. In essence, it is the Claimant's case that, had his claim against Durban been presented properly, he would have...

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