Tates (Agents) Limited & Anor v Caroline Nicholas & Anor

This is an appeal against the Order of Recorder Gallagher (“the Judge”) dated 19 September 2024, following the handing down of judgment for the Respondents at the Staines County Court.

The First Claimant/Respondent (“Tates”) is a firm of estate agents, owned and run by the Second Claimant/Respondent (“Mr Gottlieb”). The First Defendant/Appellant (“Ms Nicholas”) worked for Tates from 2007 to 2020. The Second Defendant/Appellant (“Mr Asombang”) is Ms Nicholas’ cohabiting partner. By a settlement agreement dated 5 June 2020, Tates and Ms Nicholas agreed terms regarding the termination of her employment with Tates. Those terms included that Tates would pay Ms Nicholas £25,000 immediately, in addition to £45,000 by way of 9 monthly instalments of £5,000. Tates also agreed to pay the hire charges on Ms Nicholas’ company car until March 2022. The settlement agreement contained warranties from Ms Nicholas to the effect that there were no circumstances existing at the date of the agreement which would have entitled Tates to terminate Ms Nicholas’s employment without notice or payment in lieu of notice.

Tates paid the £25,000 initial payment and the first 4 monthly payments of £5,000, plus £4,268.70 car hire charges. In October 2020 Tates ceased making payments, on the grounds that Mr Gottlieb had discovered serious acts of gross misconduct committed by Ms Nicholas during the course of her employment. Ms Nicholas denied any misconduct and sought payment of the sums outstanding under the settlement agreement.

In November 2020 Ms Nicholas served a statutory demand under section 123(1)(a) of the Insolvency Act 1986 in respect of sums then due under the settlement agreement.

In April 2021 Tates commenced proceedings in the Staines County Court (Claim No. H49YX780) against Ms Nicholas, alleging breach of contractual warranty, and seeking repayment of the £49,268.70 it had so far paid out. In June 2021 Ms Nicholas filed a Defence and Counterclaim seeking payment of the £25,000 which remained unpaid.

In September and October 2021 there were oral and written communications between Mr Asombang and Mr Gottlieb regarding the dispute between Tates and Ms Nicholas. Mr Gottlieb considered these, and subsequent exchanges, to be harassment by Mr Asombang, carried out with the agreement of Ms Nicholas (and so eventually pleaded as an unlawful means conspiracy in the subsequent harassment action – see further below).

On 9 September 2021 Ms Nicholas obtained an ex-parte freezing injunction against Tates before Mrs Justice Bacon, freezing assets up to £100,000. The order records that Mr Asombang had attended court and given an undertaking to guarantee Ms Nicholas’ cross undertaking in damages. She was required to file an affidavit of his means within 24 hours. An affidavit, sworn by Mr Asombang was filed, dated 13 September 2021.

On 16 September 2021 Mr Justice Meade made an order that the freezing injunction had ceased to have effect upon a solicitor’s undertaking having been given. He also transferred the matter to the County Court to be consolidated with the existing claim. The injunction was subsequently discharged by order of Her Honour Judge George on 11 January 2022. The judgment which accompanied that order includes a finding that the cross undertaking was wholly inadequate given non-disclosure of Mr Asombang’s financial background and previous bankruptcy as well as uncertainty over the value attributed to one of his companies.

In November 2021 Mr Gottlieb and Tates commenced a claim against Ms Nicholas and Mr Asombang in the High Court (Claim No. QB-2021-004088) seeking damages and an injunction under the Protection from Harassment Act 1997. The damages sought were limited to £15,000. Mr Nicholas and Mr Asombang filed defences in that High Court Claim in December 2021, denying harassment and unlawful conspiracy.

The particulars of harassment cover a period commencing in October 2020 and give details of the actions of Mr Asombang which are said to amount to a course of conduct within section 1 and 3 of the 1997 Act. They do not make any reference to the statutory demand or the freezing injunction.

Thus, there were two claims, the first in the County Court for breach of warranty, to which the Defendant was Ms Nicholas and the second a High Court Claim, based upon allegations of harassment and conspiracy, to which both Mr Asombang and Ms Nicholas were Defendants.

On 10 November 2021 Mr Gottlieb and Tates obtained an interim injunction in the High Court proceedings by order of Mrs Justice Collins Rice. The order prohibited Mr Asombang and Ms Nicholas from communicating with Tates or Mr Gottlieb or contacting any person who was a customer of Tates in connection with the matters which were the subject of the County Court claim. Tates and Mr Gottlieb subsequently contended that this prohibition applied to any employees or former employees of Tates who might be witnesses in the Staines County Court proceedings.

Mr Asombang and Ms Nicholas filed evidence in December 2021 opposing the injunction, but it was continued at the Return Date hearing, on 17 January 2022, by Mr Justice Nicklin.

In June 2022 Tates obtained permission to amend the Particulars of Claim in the County Court proceedings to add further allegations and claims. The amended claim sought damages or compensation (beyond repayment of the sums paid under the settlement agreement) for the alleged breaches of duty in the additional sum of £60,650.74. Ms Nicholas filed an amended defence in October 2022. In April 2023 Tates obtained permission to further re-amend the Particulars of Claim to add further allegations and claims, such that the additional damages (beyond reimbursement of the sums paid under the settlement agreement) totalled £124,535.74. Ms Nicholas filed her re-amended defence and counterclaim on 30 May 2023.

It appears that Mr Gottlieb and Tates did not progress the High Court proceedings. In July 2023 Mr Justice Nicklin ordered them to explain why no steps had been taken and listed a Case Management hearing. He sought an explanation as to why separate proceedings had been commenced in the High Court when there were already proceedings in the County Court at Staines without making that clear to the High Court. He concluded subsequently that this was an abuse of process.

At a Case Management Hearing on 3 November 2023 Mr Justice Nicklin ordered that the High Court claim be transferred to the County Court at Staines and “...upon receipt for consideration by that court of consolidation of the claim with the Staines Action”.

By Order of Her Honour Judge George in the Staines County Court, dated 21 November 2023, both claims were to be “listed together” for a Case Management hearing preferably in front of her or another civil circuit judge. In fact, the matter came back before a Recorder.

By Order of Recorder Bedingfield, dated 11 December 2023, the two sets of proceedings were to be “joined and case manged together under Claim No number H49YX780.” There was no express order for consolidation and no order for consolidated statements of case or amendment of the parties to each separate claim. Mr Asombang has never been added as a defendant to the County Court claim. The requirement for the litigation to proceed under the County Court case number was, on this basis, administrative in nature.

In February 2024 the Judge (Recorder Gallagher) refused Ms Nicholas application for an order for specific disclosure (in which Ms Nicholas had sought disclosure of Tates’ files in respect of each of the transactions referred to in the Re-Amended Particulars of Claim). He gave directions for a trial, which commenced before him on 8 April 2024. The trial itself was spread over 13 days in the period April to June 2024. The Defendants represented themselves. It is evident from the portions of the transcript that I have read that the Judge was scrupulously fair to the defendants as litigants in person. Mr Asombang, in his submissions to me, confirmed that he had no complaints about the conduct of the proceedings notwithstanding that he took issue with the Judge’s conclusions.

The Judge gave a reserved judgment for the Claimants in the sum of £274,763.77 against Ms Nicholas and £17,500 against Mr Asombang, making an order for indemnity costs, including payments on account of £297,811.98, against both Defendants, jointly and severally. He granted permanent injunctive relief. The Order was sealed by the Court on 19 September 2024 (although in error it bears the date 9 April 2024).

The Judge’s conclusions about Mr Asomabang and Ms Nicholas in relation to their honesty and credibility were scathing but well-reasoned and grounded in the material before him and the assessment that he made of them when they gave their evidence (and the contrasting conclusions he came to in relation to other witnesses whose accounts he preferred).

The Judge dealt with the two actions separately in his written judgment observing [90]:

“Of course, there is a degree of overlap between the two cases. That is why they were ordered to be and have been heard together. Many of the same individuals appear in each action, and the broad geographical locality is the same. Furthermore, it can properly be said that the second action has sprung out of the first. Put another way, had the dispute the subject of the first action not occurred, the facts surrounding the second action are most unlikely to have arisen. That said, the similarities are not all encompassing as Mr. Asombang seemed to be arguing. By way of example, success by say, Ms. Nicholas on the first action would not automatically mean success for Mr. Asombang (and Ms. Nicholas) on the second. The causes of action in the two claims are wholly different, the decisive facts in each case are also very different, and the crucial evidence in each is also different. For good measure, Ms. Nicholas is the lead Defendant and counterclaiming Claimant in the first claim, whilst Mr. Asombang is the lead Defendant in the second. Each claim or action is perfectly capable of being tried separately from the other, though it is more convenient for both to be tried together, as has happened.” (my emphasis)

In relation to the harassment claim he said [94, 96. 98 and 99]:

“94.

…Mr. Asombang engaged in a campaign of harassment, which was ramped up to include threats of violence, unsubstantiated and irrelevant allegations against Mr. Gottlieb’s character, attempts at blackmail, and attempts to bring Tates to a standstill by means of the issue of a wholly improper statutory demand and the equally wholly improper obtaining of a freezing order.[…]

“96.

…Indeed, the wholly wrongfully obtained freezing order could, as I have stated above, easily have driven Tates out of business, and I have little doubt that it was intended to cause the maximum harm possible. It was brought without notice a year after the dispute had arisen, and after the attempt to issue a statutory demand had gone nowhere. In my judgment a freezing order should never have been sought; it was done so out of spite and for very wrongful tactical purposes, and to do damage to Tates and Mr. Gottlieb. […]”

98.

Why do I express myself so positively? In the first place I note that HHJ George at paragraph 6.3.1 in her judgment of 1 1th January 2022 in which she discharged the freezing order (622ff) said as follows: “There is no explanation of the revaluation (of the shares in Chunga Ltd, put forward in a cross-undertaking as to damages) and no independent audit-there is no requirement for one. The assets are said to be property assets for development. Much of the debt is bank loans, presumably secured on the property and therefore a priority debt but none of this is clear in the accounts. None of this was explained to Bacon J. when Mr. Asombang offered the undertaking as to damages nor is it explained in his Affidavit of Means. Further, it was not made clear that he had been made bankrupt on two previous occasions, most recently in 2010: that he had been the subject of a number of previous proceedings for unpaid debts and that in Soutzos v Asombang and others 2010 EWHC 842 Newey J found that Mr. Asombang had not told him the full story, that the evidence given by Mr. Asombang was untruthful, and that Mr. Asombang accepted he had been party to a document that was “pretty misleading.” Newey J concluded that: “I cannot regard any of the Defendants as reliable or even a truthful witness,” and that but for his discharge from bankruptcy Mr. Asombang would have been indebted to the claimant in that case in the sum of £765,000.00. None of this information was disclosed to Bacon J. Nor was the inadequacy of the cross-undertaking at the hearing before Meade J Given the nature of the substantive assets relied upon by Mr. Asombang to support the cross-undertaking, I consider that the failure to disclose his financial history to be serious. It calls into question his financial integrity and therefore the reliability of the self certified accounts and their adequacy as security for the cross-undertaking.” The learned judge went on to state that the second asset previously relied upon was “wholly inadequate,” and that there was “no evidence” of the personal monies asserted to exist. She found the cross-undertaking in damages to be “wholly inadequate,” and discharged the freezing order with costs.

99.

1 have already stated that the effect of the freezing order could have been to bring down Tates. The finding was not appealed.”

In his assessment of damages, he identified the matters which he had taken into account:

“128.

Mr Gottlieb, as he is entitled, also seeks damages. These are to be awarded for the anxiety caused, such should be relatively modest. 1 must, though, bear in mind the following factors:

(i), Mr Gottlieb was subjected to a prolonged campaign of harassment beginning in October 2020 and persisting right up to and indeed through trial. These included physical threats of violence,

(ii)

Mr Gottlieb was attacked in his commercial, personal and political life,

(iii)

Mr Gottlieb’s business was made the subject of a wholly wrongful statutory demand and freezing order, the latter of which could easily have brough the business down. Both of these, in my judgment, were specifically designed to cause the maximum amount of harm and distress,

(iv)

the most foul and unpleasant and utterly irrelevant suggestions, by way of innuendo, almost of guilt by association, were made against Mr Gottlieb arising out of the conviction of his brother. These were made out of pure spite and in order intimidate Mr Gottlieb into paying or cause Tates to pay monies to Ms Nicholas that were not due and owing and to which she was not entitled,

(v)

Mr Asombang throughout has made it clear that he wants to attack Mr Gottlieb’s, and by extension Tates’, reputation and to attack Mr Gottlieb’s reputation and standing as a former Winchester City Councillor and his integrity as an estate agent and surveyor.” (my emphasis)

In making an award of damages in respect of harassment the judge considered a figure of £17,500 to be appropriate. This was lower than the amount which the Respondents had argued for at trial but higher than the limitation in the Particulars of Claim. The Judge gave permission to amend the Particulars of Claim to extend the limitation.

On the day following judgment the Judge considered and gave a further judgment in respect of costs. He began as follows:

“1.

These were two conjoined actions proceeding under one claim number in the County Court, one being originally a County Court action, the other originally a High Court action sent down to the County Court. I gave my judgment yesterday.

2.

CPR 44(2) gives the Court discretion as to costs as to whether costs are payable by one party to another. Without any doubt, Mr Asombang and Ms Nicholas have both been parties to the litigation before this Court. I read on further then to part 46.2 dealing with costs orders in favour of or against non-parties insofar as that might be relevant to Mr Asombang and I am bound to say I am not convinced that it is because he was not a non-party. Therefore, by looking it as it were I am giving him certain leeway because undoubtedly I could make the order on the basis of part 44.2. Part 44.6, 46 sorry, part 46.2 says that where the court is considering whether to exercise its powers to make a costs order in favour of or against a person who is not a party to that proceedings, first of all the person must be added to the proceedings. Mr Asombang, for what it is worth, satisfies that element, times over, because he has been a party to the proceedings throughout trial and well before.

[…]

5.

It was abundantly clear as I think I specifically found that he was the dominant partner amongst the two and he certainly was the person that was controlling and directing the conduct of the litigation insofar as the defendants are concerned. I am wholly satisfied that were he a non-party, the facts of this case would be exception, quite outside the ordinary run of cases and it would justify me in making a costs order against him. In fact, I do not have to go that far because as I have already stated, and as of course is clear from the record, he is and has been a party to the litigation throughout.

6.

When I use the word “throughout” of course he has been a party to what was the High Court case on its inception but importantly he has been a party to the County Court case as well since the debt, the two cases were conjoined and ordered to proceed under one claim number and he most certainly, for the avoidance of any doubt whatsoever, has been a party throughout the litigation before me, i.e., the trial and indeed the earlier application which I think took place in about April of this year. Therefore, 1 do not have a problem at all in ordering that it is the defendants who are to pay the costs of the proceedings. I direct it be on an indemnity basis if not agreed.”

I observe that the term “conjoined” is normally used in relation to appeals and does not appear in CPR Part 3 which sets out the court’s general case management powers:

“3.1—(1) [….]

(2)

Except where these Rules provide otherwise, the court may—

(a)

extend or shorten the time for compliance with any rule, practice

direction or court order (even if an application for extension is

made after the time for compliance has expired);

(b)

adjourn or bring forward a hearing;

(c)

require that any proceedings in the High Court be heard by a

Divisional Court of the High Court;

(d)

require a party or a party’s legal representative to attend the court;

(e)

hold a hearing and receive evidence by telephone or by using any

other method of direct oral communication;

(f)

direct that part of any proceedings (such as a counterclaim) be

dealt with as separate proceedings;

(g)

stay the whole or part of any proceedings or judgment either

generally or until a specified date or event;

(h)

consolidate proceedings;

(i)

try two or more claims on the same occasion;

(j)

direct a separate trial of any issue;

(k)

decide the order in which issues are to be tried;”

The passages in the cost judgment I have set out above appear to reflect the arguments which were advanced at the hearing of which I have been provided with a transcript. Mr Myers on behalf of the Respondent submitted that:

“…it would be wholly artificial for the Court to try to draw a distinction between the costs of the High Court action and the costs of the County Court action and payable by whom in circumstances where again, as reflected in the Court’s judgment, the factual background and matrix between the two disputes are entirely intertwined. The separate causes of action may be different but they now form part of the same proceedings and the Court can’t go behind that order nor can the defendants. The order of Recorder Bedingfield. And it is quite clear that the defendants have defended them jointly at every stage together both of them attending every single hearing and in nine times out of ten, Mr Asombang doing nearly all of the talking and the conducting of the proceedings. So in my submission, it’s a logical reflection of the way these proceedings have been joined and thereafter conducted subsequent to the joinder of them, that the costs order is payable jointly and severally as between them.”

This lies uneasily perhaps with the Judge’s own assessment of the relationship between the two claims (see above) in the judgment.

Mr Asombang objected to a costs order being made against him in respect of the County Court proceedings:

“…it was the claimants that did everything they possibly could to make sure that I was not able to address the Court regarding Ms Nicholas’s case and here they are saying well Mr Asombang should should pay part should pay the costs, it’s, I don’t have any words to, there’s nothing else I can say other than just this is typical of the claimant. It’s a joke. It’s just not right. I haven’t been able address the Court about it in any way, shape or form but they are seeking that I should then pay the costs. I’m not claiming. They’ve had plenty of time during that time, because they’ve amended 3their claim twice, they could have amended then and put me into the proceedings. They didn’t. Now they are somehow trying to get me to pay the costs through the back door […]

So I wasn’t running this court case from the get-go as the claimants are now putting it. I certainly would say that from when the solicitors came off the record, I tried to be as helpful as I can to my partner. I would understand the logic of that if she was just a co-defendant, somebody that I didn’t know. But this is my life partner. So of course, I’m going to do everything that I possibly can to help and assist. […]

But that does not make me a defendant. And especially in a trial where I was blocked from even going through my evidence, even going through my evidence, because we didn’t have a barrister. I wanted to go through my evidence. I wanted to draw your attention to various documents. The claimants refused. It’s, I say it’s just quite incredible that they now want me to be party to these costs.”

Mr Asombang’s complaint appears to stem from discussions at the outset of the trial as to how cross-examination was to take place, with the Respondents contending that each Defendant should cross examine about matters referable to the distinct claims against them (allowing for an overlap in relation to the harassment claim):

RECORDER GALLAGHER: Right, let us go to you, how long, now, you are representing yourselves, I appreciate that, is one representing, speaking on behalf of both of you, or are both of you going to have a go at speaking; I do not mind either way, but I do want to know what it is at the outset? You will each be called to be giving evidence, I appreciate that, you cannot give evidence for each other, but insofar as addressing the Court is concerned is one of you going to speak for both of you, or are you each going to have a go at it?

MR ASOMBANG: Yes, Your Honour, I intend to speak on behalf of the two of us.

RECORDER GALLAGHER: Right, and you are happy for that?

MS NICHOLAS: Yes.

....

MR MYERS: I am rather uneasy about that.

RECORDER GALLAGHER: Yes.

MR MYERS: For this reason, obviously Ms Nicholas and Mr Asombang are each separate defendants to this matter.

RECORDER GALLAGHER: Yes, and their causes are not, are by no means identical and they do not run necessarily in parallel lines.

MR MYERS: Entirely right, I mean, Mr Asombang as been named as a defendant collectively in the consolidated proceedings because he was the defendant in the context of the High Court claim, obviously.”

With the assistance of counsel, extensive Grounds of Appeal were drafted and filed. However, permission to appeal was only granted by Sir Stephen Stewart on Grounds 7 and 8 which concern Mr Asombang alone. That remained the position after an oral renewal hearing before Mr Justice Ritchie. These grounds have not been renumbered and continued to be referred to in the hearing before me by their original numbers; I take the same approach in this judgment.

The two grounds for which the Mr Asombnang has permission to appeal are, in summary, that the Judge was wrong:

The Respondents submit that it is incorrect to assert that the Court’s “material” finding of harassment was confined to the statutory demand and freezing order initiated by Mr Asombang. The Court was entitled to make “obiter” observations indicating that there was further conduct which, in law, would also amount to harassment of Mr Gottlieb. Such comments, it was said, are neither improper nor unusual.

The Respondents further contend that the Judge did not err in his application of CPR r.46.2 when determining the Appellants’ liability for costs. Mr Asombang was already a party to the proceedings, and accordingly, no non-party costs order was required or made. The Judge merely indicated, in the alternative, that he would have been minded to make such an order had it been necessary, but it was not, on the facts.

Prior to the hearing before me, Mr Asombang made a late application to adjourn. I refused that application for the reasons which were set out in an order of 9 October. Mr Asombang renewed his application on the morning of the hearing. I considered that there were no new circumstances and so refused the application but said that I would revisit the position if I considered that he was encountering any difficulties during the course of the hearing. In the event, he made cogent and succinct submissions, and I did not take the view that he was prejudiced by the refusal of either application to adjourn, both in any event being made at an extremely late stage.

There is no doubt, and the Respondents did not contend otherwise, that the issuing of the statutory demand and the obtaining of the freezing injunction were not pleaded allegations. It is equally clear that they formed part of the judgment in relation to the findings of harassment against Mr Asombang. It does not seem to me that they can simply be regarded as “obiter” comments by the Judge or were matters which he was referring to in passing when considering the evidence. They feature in the factors which he identified in setting the level of damages to which he concluded the Respondents were entitled and were prominent in his review of the evidence in relation to harassment. Equally I am not persuaded, as Mr Myers argued at the appeal, that Ground 7 is an example of “ex post facto lawyering” or technical argument based upon judicial slips.

The statutory demand and freezing injunction preceded the issue and pleading of the harassment claim. The Respondents’ written opening submissions for trial began with a consideration of this part of the claim as follows:

“The basis upon which the claim in harassment is put forward are set out in full in the Particulars of Claim dated 4.11 .21 and explained in the evidence in Mr Gottlieb’s W/S as dated 4.11.23 and Paris 34 dash 35 of his 8th witness statement.”

This was repeated in the closing submissions. Neither the Particulars of Claim, nor Mr Gottlieb’s evidence sought to advance the statutory demand or freezing injunction as part of the harassment claim or articulated how they would fall within the statutory cause of action. It would have been possible to have included them at the outset or to have amended to add them later but neither course was taken.

However, they were far from the only matters on which the harassment case turned in the Judge’s consideration of the claim. The pleaded conduct, which the Judge also considered in full and accepted, was more than sufficient to support the overall conclusion that he came to in relation to harassment. The statutory demand and freezing injunction were not in this sense the “material” findings on which the claim was determined. As Sir Stephen Stewart observed when giving permission to appeal on this ground, and as I agree, the consequence of the procedural irregularity is not that the order below requires to be set aside in its entirety but that an adjustment to the damages awarded is required to reflect the inclusion of matters which should not have been taken into account.

It would not be proportionate or in the interests of justice for the matter to be remitted for that exercise to be carried out. I am in a position to exercise all of the powers of the lower court and make an assessment for the purpose of the appeal. I note that the respondents own assessment of the limit of damages at the time of pleading the matters on which they succeeded at trial, irrespective of the statutory demand and freezing injunction, was £15,000. I consider that that is a fair assessment of the damages to which the respondents were entitled and so reduce the damages presently ordered by £2,500 to £15,000.

The Respondents written submissions at trial, reflected in the oral exchanges which I have referred to above, were to the effect that the two actions had been “consolidated”. The difficulty in reaching that conclusion is illustrated by the Respondents’ rather different submissions at the appeal before me, which were as follows:

“41.

Following the order of Recorder Bedingfield, the two previous claims were “joined”. The Court’s jurisdiction to join two previously separate sets of proceedings – and, as here, direct that they be managed under one claim number – arises under CPR Part 19. The purpose of a CPR Part 19 joinder is to make sure that all necessary parties and issues are before the Court, in order to resolve the issues in dispute. It is a process by which one or more parties are added to an existing claim as claimants or defendants, with the result that the original case continues (here, the County Court proceedings, but now including the additional claim(s) and party – here, Mr Asombang and the separate harassment claim brought against him and Ms Nicholas).

42.

This is to be distinguished from the procedure of consolidation (which is exercised under CPR Part 3), the effect of which is to combine multiple related cases into one, with the consolidated proceedings becoming one new case and the individual cases losing their separate identities. In the circumstances, Mr Asombang was a party to the proceedings from the making of the Order of Recorder Bedingfield on 11 December 2023...”

Part 19 concerns the addition or substitution of parties but Mr Asombang was not made a party to the County Court proceedings; no amended pleadings were served on him naming him as a defendant and no remedy or relief was sought against him in that claim. His addition as a party could not have been the effect of the order made by Recorder Bedingfield which is silent as to the identity of the parties to the two claims. His order seems to me to be best characterised as a direction that the two cases should be case managed and tried together; indeed, that would reflect the various observations made in the judgment and at trial about the relationship between the two separate pieces of litigation and the boundaries imposed on cross-examination and evidence.

Contrary to Mr Myers’ initial submissions at the appeal hearing the Appellant’s case was not advanced in ignorance of the reasoning set out in the cost’s judgment. A transcript had been obtained and additional submissions submitted. The criticism that these had been drafted by counsel who had not been present and had not been involved in the trial appears to me to be of limited force. The Judge was wrong to state at paragraph 5 of the cost’s judgment that Mr Asombang “is and has been a party to the litigation throughout”. That observation turned upon the effect of orders made in the litigation as Mr Asombang was plainly not a party to the County Court litigation when it was issued. Nor is it possible to say as the Respondents submitted that Mr Asombang was a “de facto” party to the county court litigation or must have been because at one stage compendious debarring orders were made. These arguments put the cart before the horse; the anterior question is whether he was made a party to the proceedings in accordance with the Civil Procedure Rules. Given that the majority of the costs were incurred in relation to the breach of warranty claim that was a question of considerable importance.

Whilst the Judge considered whether a costs order could be made against Mr Asombang as a non-party, where the Court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 to make a costs order against a person who is not a party to proceedings, that person must first be added as a party to the proceedings. Mr Asombang was not given notice of any intention to consider making him liable on this basis for all of the Respondents’ costs of pursuing Ms Nicholas in respect of the separate claim against her. He had no opportunity to take legal advice as to the principles to be applied under CPR 46.2 and s.51 Senior Courts Act, or to prepare arguments or evidence as to why he should not be personally liable for all of the Respondent’s costs of the County Court claim. The Respondents’ argument was, on the contrary, that it would be artificial to disentangle the costs of the proceedings and that the conduct of the proceedings had been so “exceptional” as “...to warrant the making of a collective cost order against both defendants” (my emphasis). In response Mr Asombang argued that he had not at any stage been a party to the proceedings in the County Court, which I conclude is in fact the correct analysis. There was therefore no basis for making a costs order against him.

It follows that those parts of the order which identify Mr Asombang as a paying party in respect of the County Court proceedings should be set aside and the damages payable in respect of the harassment claim are to be reduced. I see no reason to disturb the Judge’s finding that costs payable by Mr Asombang and Ms Nicholas in the litigation to which they are parties should be on the indemnity basis, there were ample grounds for that approach to costs.