KA-2024-000188 - [2025] EWHC 2869 (KB)

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.