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

Conduct not pleaded as part of a harassment claim must not be used to determine liability or assess damages. Where the pleaded conduct independently establishes harassment, the appropriate appellate remedy may be a proportionate reduction in damages rather than setting aside the judgment.

An order directing separate claims to be case managed and tried together does not, without more, consolidate them or add a person as a party to a claim. A person who was not a party to the relevant proceedings cannot be made liable for their costs without compliance with the statutory and procedural requirements governing non-party costs orders.

The appeal arose from two claims tried together in the Staines County Court. The first concerned alleged breaches of warranties in an employment settlement agreement. The second concerned harassment and unlawful conspiracy.

The second defendant, Mr Asombang, was a defendant in the harassment claim but had not been added as a party to the County Court claim against Ms Nicholas. The Recorder awarded damages against both defendants and ordered them jointly and severally to pay indemnity costs.

Permission to appeal was granted on two grounds: whether unpleaded use of a statutory demand and freezing injunction could form part of the harassment findings and damages assessment, and whether Mr Asombang could be ordered to pay costs relating to the County Court claim.

1. Ground 7 allowed in part. The statutory demand and freezing injunction were not pleaded as conduct forming part of the harassment claim. They were nevertheless included in the Recorder’s assessment of the evidence and damages. They could not properly be treated as merely obiter or passing observations.
2. The pleaded conduct, considered independently, was sufficient to support the finding of harassment. The procedural irregularity therefore did not require the judgment to be set aside in its entirety. The appellate court could exercise the lower court’s powers and make the necessary assessment itself. The damages for harassment were reduced from £17,500 to £15,000.
3. Ground 8 allowed. The order directing the two claims to be joined and case managed under one claim number was not an order adding Mr Asombang as a party to the County Court claim. Nor was it an order consolidating the proceedings. It was properly characterised as a direction that the separate claims be case managed and tried together.
4. Mr Asombang was therefore not a party to the County Court proceedings. The requirements applicable to a costs order against a non-party under Senior Courts Act 1981, s 51 and CPR r 46.2 had not been satisfied. In particular, he had not been added as a party or given proper notice and opportunity to address personal liability for the County Court costs.
5. The parts of the order making Mr Asombang liable for costs relating to the County Court proceedings were set aside. The indemnity-costs order was otherwise undisturbed in respect of the litigation to which the defendants were parties.

• Staines County Court: Recorder Gallagher entered judgment for the claimants, awarding damages of £274,763.77 against Ms Nicholas and £17,500 against Mr Asombang, together with joint and several indemnity costs and injunctive relief. The order was dated 19 September 2024.
• High Court (King’s Bench Division): Permission to appeal was granted on Grounds 7 and 8. The appeal was allowed in part. Harassment damages were reduced to £15,000 and Mr Asombang’s liability for costs relating to the County Court proceedings was set aside.