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

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.