Tates v Nicholas: Appeal partially succeeds on harassment damages and costs liability

The High Court has allowed an appeal in part against a judgement from Staines County Court, reducing damages awarded for harassment and setting aside a costs order against a party who was never formally joined to the principal proceedings.

The case arose from a settlement agreement between Tates (Agents) Limited, an estate agency, and its former employee Caroline Nicholas. Following allegations of gross misconduct, Tates ceased making payments under the agreement, triggering two separate pieces of litigation: a County Court claim for breach of warranty against Ms Nicholas, and a High Court harassment claim against both Ms Nicholas and her partner Joseph Asombang.

The harassment proceedings alleged a campaign of conduct by Mr Asombang between October 2020 and the trial, including threats and attempts to damage Tates' business. Recorder Gallagher found in favour of the claimants, awarding £17,500 in damages against Mr Asombang and ordering both defendants to pay costs jointly and severally, including an interim payment of £297,811.98.

The appeal grounds

Permission to appeal was granted on two grounds. Ground 7 challenged the judge's reliance on a statutory demand and freezing injunction as findings of harassment when these matters had not been pleaded. Ground 8 contested the costs order against Mr Asombang for the entire proceedings, given he was never a party to the County Court claim.

Unpleaded conduct in harassment claims

Mr Justice Sweeting accepted that the statutory demand and freezing injunction, whilst featuring prominently in the trial judge's reasoning, had not been included in the particulars of claim. The Respondents argued these were merely obiter observations, but the Court found they formed part of the substantive findings and featured in the assessment of damages.

However, the procedural irregularity did not warrant setting aside the entire order. The pleaded conduct alone sufficiently supported the harassment finding. The appropriate remedy was an adjustment to damages. The Court noted that the Respondents' own initial assessment had limited damages to £15,000, and accordingly reduced the award from £17,500 to £15,000.

Costs liability and party status

The more significant issue concerned Mr Asombang's liability for costs of the County Court proceedings. The trial judge had stated that the two actions had been "conjoined" and that Mr Asombang "is and has been a party to the litigation throughout."

Mr Justice Sweeting rejected this characterisation. Recorder Bedingfield's earlier order was best understood as directing that the two cases be case managed and tried together, not as consolidating them under CPR Part 3 or adding Mr Asombang as a party under CPR Part 19. No amended pleadings had been served naming him as a defendant to the County Court claim.

The judge below had considered whether a non-party costs order under CPR 46.2 and section 51 of the Senior Courts Act 1981 could be made, but Mr Asombang had received no notice of this possibility and no opportunity to address the specific principles applicable to such orders. The correct analysis was that he had never been a party to the County Court proceedings, and therefore no basis existed for a costs order against him in respect of that claim.

The parts of the order identifying Mr Asombang as liable for costs of the County Court proceedings were set aside. The finding that costs should be assessed on the indemnity basis was upheld, the trial judge having identified ample grounds for that approach.

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