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

This is my judgment in relation to consequential matters following the handing down of the Substantive Judgment and further submissions from the parties. The Appellant succeeded on both grounds on which he had been given permission to appeal.

Ground 7 related to the taking into account by the Judge of unpleaded matters in determining the allegation of harassment and quantifying damages for that cause of action. As Sir Stephen Stewart observed in granting permission, the result of the appeal could only realistically have been a reduction in the damages awarded. That was because, as I concluded, there was a much wider case of harassment before the Judge which was not the subject of the appeal before me and would in any event have led to an award of damages. I reduced the damages awarded by the Judge to £15,000.

In fact, the Respondent had made an offer to settle which included a reduction in damages to £15,000. The Respondent seeks to rely on that offer in arguing that the Appellant should pay its costs of the appeal on Ground 7. That offer was made by way of without prejudice save as to costs correspondence date 2 May 2025. Whilst the offer letter of that date does indeed offer to reduce damages it was coupled with an offer in relation to costs generally which does not reflect the outcome of the appeal and by comparison with which Mr Asombang has improved his position and bettered the offer. There is no indication that the Respondent would have been prepared to compromise the Ground 7 issue alone and the offer is not framed in those terms; it was predicated on all of the terms of the offer being accepted and payment made. Mr Asombang is entitled to his costs. I am not in a position to summarily assess costs so there will have to be a detailed assessment unless the costs can be agreed.

The result of the appeal is to amend rather than set aside the order as to the damages payable. The damages in respect of harassment remain outstanding and should be paid together with interest. I accept the Respondent's calculation of the interest on the revised sum up to the date of judgment and at the daily rate thereafter. Although Mr Asombang’s skeleton and draft order refer to the return of monies paid pursuant to the order of the 19 September 2024 it is not clear that any sums have been paid and none are referred to by the Respondent.

By Ground 8 the Appellant successfully challenged the finding that he was jointly liable for the costs of the entire proceedings when he was not a party to the claim brought against Ms Nicholas. It follows that his liability is limited to the costs of the harassment claim. He is therefore entitled to his costs of the appeal in this respect notwithstanding that it is likely that his costs will be eclipsed by the costs of the substantive action in relation to harassment. That will lead to a set off pursuant to CPR 44.12 and will require a detailed assessment. Mr Asombang is a litigant in person although he appears to have had assistance from counsel in preparing for the appeal. I am not in a position to make any assessment of his costs.

By order of Deputy ICC Judge Kiriakides of the 6 May 2025, the Respondent’s solicitor, Anya Bloom, provided an assessment of the costs of the harassment claim for the purposes of a bankruptcy petition. The reasoned assessment set out in her witness statement of the 19 May 2025 was that £96,561.77 was to be attributed to the harassment claim alone.

As I have observed it is more probable than not that this will be a substantially higher figure than any costs incurred by Mr Asombang in pursuing the appeal. The outcome of the appeal if it succeeded, was a reduction in the amount of costs payable rather than the liability to pay costs being entirely extinguished as the Judge did not differentiate between the costs of the separate claims nor did the Respondent’s costs schedule. There is nothing wrong in principle therefore in requiring a payment of costs on account; that is to say a reasonable proportion of those costs which the Respondent will recover against Mr Asombang in the costs assessment. I am asked to make such an order in a sum representing 80% of the “harassment costs”. I consider that the allowance for a margin of error in this case must be greater so as to accommodate such costs as Mr Asombang may be entitled to in respect of the appeal on Grounds 7 and 8, and any arguments as to assessment notwithstanding that the costs were ordered to be paid on an indemnity basis, a finding which I do not disturb. I therefore order a payment on account of costs in the sum of £40,000.

The Respondents also sought their costs of Mr Asombang's unsuccessful application to adjourn. Whilst this involved the preparation of a witness statement responding to Mr Asombang's own witness statement in support of his application, the request to adjourn was made in the immediate period before the hearing when both counsel and solicitors were already engaged in preparation. The arguments were essentially about case management in the light of Mr Asombang's undoubted medical problems and the risk that these might prevent him from doing justice to his arguments at a hearing. As it was, he conducted the hearing remotely from hospital. For the reasons set out in the Substantive Judgment the potential risk did not eventuate at the hearing, although if it had done so, I would have been prepared to adjourn. In all these circumstances it seems to me that the correct order on the adjournment application is ‘no order for costs’.