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

In February 2024 the Judge (Recorder Gallagher) refused Ms Nicholas application for an order for specific disclosure (in which Ms Nicholas had sought disclosure of Tates’ files in respect of each of the transactions referred to in the Re-Amended Particulars of Claim). He gave directions for a trial, which commenced before him on 8 April 2024. The trial itself was spread over 13 days in the period April to June 2024. The Defendants represented themselves. It is evident from the portions of the transcript that I have read that the Judge was scrupulously fair to the defendants as litigants in person. Mr Asombang, in his submissions to me, confirmed that he had no complaints about the conduct of the proceedings notwithstanding that he took issue with the Judge’s conclusions.

The Judge gave a reserved judgment for the Claimants in the sum of £274,763.77 against Ms Nicholas and £17,500 against Mr Asombang, making an order for indemnity costs, including payments on account of £297,811.98, against both Defendants, jointly and severally. He granted permanent injunctive relief. The Order was sealed by the Court on 19 September 2024 (although in error it bears the date 9 April 2024).

The Judge’s conclusions about Mr Asomabang and Ms Nicholas in relation to their honesty and credibility were scathing but well-reasoned and grounded in the material before him and the assessment that he made of them when they gave their evidence (and the contrasting conclusions he came to in relation to other witnesses whose accounts he preferred).

The Judge dealt with the two actions separately in his written judgment observing [90]:

“Of course, there is a degree of overlap between the two cases. That is why they were ordered to be and have been heard together. Many of the same individuals appear in each action, and the broad geographical locality is the same. Furthermore, it can properly be said that the second action has sprung out of the first. Put another way, had the dispute the subject of the first action not occurred, the facts surrounding the second action are most unlikely to have arisen. That said, the similarities are not all encompassing as Mr. Asombang seemed to be arguing. By way of example, success by say, Ms. Nicholas on the first action would not automatically mean success for Mr. Asombang (and Ms. Nicholas) on the second. The causes of action in the two claims are wholly different, the decisive facts in each case are also very different, and the crucial evidence in each is also different. For good measure, Ms. Nicholas is the lead Defendant and counterclaiming Claimant in the first claim, whilst Mr. Asombang is the lead Defendant in the second. Each claim or action is perfectly capable of being tried separately from the other, though it is more convenient for both to be tried together, as has happened.” (my emphasis)

In relation to the harassment claim he said [94, 96. 98 and 99]:

“94.

…Mr. Asombang engaged in a campaign of harassment, which was ramped up to include threats of violence, unsubstantiated and irrelevant allegations against Mr. Gottlieb’s character, attempts at blackmail, and attempts to bring Tates to a standstill by means of the issue of a wholly improper statutory demand and the equally wholly improper obtaining of a freezing order.[…]

“96.

…Indeed, the wholly wrongfully obtained freezing order could, as I have stated above, easily have driven Tates out of business, and I have little doubt that it was intended to cause the maximum harm possible. It was brought without notice a year after the dispute had arisen, and after the attempt to issue a statutory demand had gone nowhere. In my judgment a freezing order should never have been sought; it was done so out of spite and for very wrongful tactical purposes, and to do damage to Tates and Mr. Gottlieb. […]”

98.

Why do I express myself so positively? In the first place I note that HHJ George at paragraph 6.3.1 in her judgment of 1 1th January 2022 in which she discharged the freezing order (622ff) said as follows: “There is no explanation of the revaluation (of the shares in Chunga Ltd, put forward in a cross-undertaking as to damages) and no independent audit-there is no requirement for one. The assets are said to be property assets for development. Much of the debt is bank loans, presumably secured on the property and therefore a priority debt but none of this is clear in the accounts. None of this was explained to Bacon J. when Mr. Asombang offered the undertaking as to damages nor is it explained in his Affidavit of Means. Further, it was not made clear that he had been made bankrupt on two previous occasions, most recently in 2010: that he had been the subject of a number of previous proceedings for unpaid debts and that in Soutzos v Asombang and others 2010 EWHC 842 Newey J found that Mr. Asombang had not told him the full story, that the evidence given by Mr. Asombang was untruthful, and that Mr. Asombang accepted he had been party to a document that was “pretty misleading.” Newey J concluded that: “I cannot regard any of the Defendants as reliable or even a truthful witness,” and that but for his discharge from bankruptcy Mr. Asombang would have been indebted to the claimant in that case in the sum of £765,000.00. None of this information was disclosed to Bacon J. Nor was the inadequacy of the cross-undertaking at the hearing before Meade J Given the nature of the substantive assets relied upon by Mr. Asombang to support the cross-undertaking, I consider that the failure to disclose his financial history to be serious. It calls into question his financial integrity and therefore the reliability of the self certified accounts and their adequacy as security for the cross-undertaking.” The learned judge went on to state that the second asset previously relied upon was “wholly inadequate,” and that there was “no evidence” of the personal monies asserted to exist. She found the cross-undertaking in damages to be “wholly inadequate,” and discharged the freezing order with costs.

99.

1 have already stated that the effect of the freezing order could have been to bring down Tates. The finding was not appealed.”

In his assessment of damages, he identified the matters which he had taken into account:

“128.

Mr Gottlieb, as he is entitled, also seeks damages. These are to be awarded for the anxiety caused, such should be relatively modest. 1 must, though, bear in mind the following factors:

(i), Mr Gottlieb was subjected to a prolonged campaign of harassment beginning in October 2020 and persisting right up to and indeed through trial. These included physical threats of violence,

(ii)

Mr Gottlieb was attacked in his commercial, personal and political life,

(iii)

Mr Gottlieb’s business was made the subject of a wholly wrongful statutory demand and freezing order, the latter of which could easily have brough the business down. Both of these, in my judgment, were specifically designed to cause the maximum amount of harm and distress,

(iv)

the most foul and unpleasant and utterly irrelevant suggestions, by way of innuendo, almost of guilt by association, were made against Mr Gottlieb arising out of the conviction of his brother. These were made out of pure spite and in order intimidate Mr Gottlieb into paying or cause Tates to pay monies to Ms Nicholas that were not due and owing and to which she was not entitled,

(v)

Mr Asombang throughout has made it clear that he wants to attack Mr Gottlieb’s, and by extension Tates’, reputation and to attack Mr Gottlieb’s reputation and standing as a former Winchester City Councillor and his integrity as an estate agent and surveyor.” (my emphasis)

In making an award of damages in respect of harassment the judge considered a figure of £17,500 to be appropriate. This was lower than the amount which the Respondents had argued for at trial but higher than the limitation in the Particulars of Claim. The Judge gave permission to amend the Particulars of Claim to extend the limitation.

On the day following judgment the Judge considered and gave a further judgment in respect of costs. He began as follows:

“1.

These were two conjoined actions proceeding under one claim number in the County Court, one being originally a County Court action, the other originally a High Court action sent down to the County Court. I gave my judgment yesterday.

2.

CPR 44(2) gives the Court discretion as to costs as to whether costs are payable by one party to another. Without any doubt, Mr Asombang and Ms Nicholas have both been parties to the litigation before this Court. I read on further then to part 46.2 dealing with costs orders in favour of or against non-parties insofar as that might be relevant to Mr Asombang and I am bound to say I am not convinced that it is because he was not a non-party. Therefore, by looking it as it were I am giving him certain leeway because undoubtedly I could make the order on the basis of part 44.2. Part 44.6, 46 sorry, part 46.2 says that where the court is considering whether to exercise its powers to make a costs order in favour of or against a person who is not a party to that proceedings, first of all the person must be added to the proceedings. Mr Asombang, for what it is worth, satisfies that element, times over, because he has been a party to the proceedings throughout trial and well before.

[…]

5.

It was abundantly clear as I think I specifically found that he was the dominant partner amongst the two and he certainly was the person that was controlling and directing the conduct of the litigation insofar as the defendants are concerned. I am wholly satisfied that were he a non-party, the facts of this case would be exception, quite outside the ordinary run of cases and it would justify me in making a costs order against him. In fact, I do not have to go that far because as I have already stated, and as of course is clear from the record, he is and has been a party to the litigation throughout.

6.

When I use the word “throughout” of course he has been a party to what was the High Court case on its inception but importantly he has been a party to the County Court case as well since the debt, the two cases were conjoined and ordered to proceed under one claim number and he most certainly, for the avoidance of any doubt whatsoever, has been a party throughout the litigation before me, i.e., the trial and indeed the earlier application which I think took place in about April of this year. Therefore, 1 do not have a problem at all in ordering that it is the defendants who are to pay the costs of the proceedings. I direct it be on an indemnity basis if not agreed.”

I observe that the term “conjoined” is normally used in relation to appeals and does not appear in CPR Part 3 which sets out the court’s general case management powers:

“3.1—(1) [….]

(2)

Except where these Rules provide otherwise, the court may—

(a)

extend or shorten the time for compliance with any rule, practice

direction or court order (even if an application for extension is

made after the time for compliance has expired);

(b)

adjourn or bring forward a hearing;

(c)

require that any proceedings in the High Court be heard by a

Divisional Court of the High Court;

(d)

require a party or a party’s legal representative to attend the court;

(e)

hold a hearing and receive evidence by telephone or by using any

other method of direct oral communication;

(f)

direct that part of any proceedings (such as a counterclaim) be

dealt with as separate proceedings;

(g)

stay the whole or part of any proceedings or judgment either

generally or until a specified date or event;

(h)

consolidate proceedings;

(i)

try two or more claims on the same occasion;

(j)

direct a separate trial of any issue;

(k)

decide the order in which issues are to be tried;”

The passages in the cost judgment I have set out above appear to reflect the arguments which were advanced at the hearing of which I have been provided with a transcript. Mr Myers on behalf of the Respondent submitted that:

“…it would be wholly artificial for the Court to try to draw a distinction between the costs of the High Court action and the costs of the County Court action and payable by whom in circumstances where again, as reflected in the Court’s judgment, the factual background and matrix between the two disputes are entirely intertwined. The separate causes of action may be different but they now form part of the same proceedings and the Court can’t go behind that order nor can the defendants. The order of Recorder Bedingfield. And it is quite clear that the defendants have defended them jointly at every stage together both of them attending every single hearing and in nine times out of ten, Mr Asombang doing nearly all of the talking and the conducting of the proceedings. So in my submission, it’s a logical reflection of the way these proceedings have been joined and thereafter conducted subsequent to the joinder of them, that the costs order is payable jointly and severally as between them.”

This lies uneasily perhaps with the Judge’s own assessment of the relationship between the two claims (see above) in the judgment.

Mr Asombang objected to a costs order being made against him in respect of the County Court proceedings:

“…it was the claimants that did everything they possibly could to make sure that I was not able to address the Court regarding Ms Nicholas’s case and here they are saying well Mr Asombang should should pay part should pay the costs, it’s, I don’t have any words to, there’s nothing else I can say other than just this is typical of the claimant. It’s a joke. It’s just not right. I haven’t been able address the Court about it in any way, shape or form but they are seeking that I should then pay the costs. I’m not claiming. They’ve had plenty of time during that time, because they’ve amended 3their claim twice, they could have amended then and put me into the proceedings. They didn’t. Now they are somehow trying to get me to pay the costs through the back door […]

So I wasn’t running this court case from the get-go as the claimants are now putting it. I certainly would say that from when the solicitors came off the record, I tried to be as helpful as I can to my partner. I would understand the logic of that if she was just a co-defendant, somebody that I didn’t know. But this is my life partner. So of course, I’m going to do everything that I possibly can to help and assist. […]

But that does not make me a defendant. And especially in a trial where I was blocked from even going through my evidence, even going through my evidence, because we didn’t have a barrister. I wanted to go through my evidence. I wanted to draw your attention to various documents. The claimants refused. It’s, I say it’s just quite incredible that they now want me to be party to these costs.”

Mr Asombang’s complaint appears to stem from discussions at the outset of the trial as to how cross-examination was to take place, with the Respondents contending that each Defendant should cross examine about matters referable to the distinct claims against them (allowing for an overlap in relation to the harassment claim):

RECORDER GALLAGHER: Right, let us go to you, how long, now, you are representing yourselves, I appreciate that, is one representing, speaking on behalf of both of you, or are both of you going to have a go at speaking; I do not mind either way, but I do want to know what it is at the outset? You will each be called to be giving evidence, I appreciate that, you cannot give evidence for each other, but insofar as addressing the Court is concerned is one of you going to speak for both of you, or are you each going to have a go at it?

MR ASOMBANG: Yes, Your Honour, I intend to speak on behalf of the two of us.

RECORDER GALLAGHER: Right, and you are happy for that?

MS NICHOLAS: Yes.

....

MR MYERS: I am rather uneasy about that.

RECORDER GALLAGHER: Yes.

MR MYERS: For this reason, obviously Ms Nicholas and Mr Asombang are each separate defendants to this matter.

RECORDER GALLAGHER: Yes, and their causes are not, are by no means identical and they do not run necessarily in parallel lines.

MR MYERS: Entirely right, I mean, Mr Asombang as been named as a defendant collectively in the consolidated proceedings because he was the defendant in the context of the High Court claim, obviously.”