Golda Ajayi v Ebury Partners Limited [2025] EWHC 3652 (Comm)

[2025] EWHC 3652 (Comm)Case No CL-2022-000572
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING’S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Fetter Lane, London, EC4A 1NLDate 15 December 2025
Before
LIONEL PERSEY KC
Between
GOLDA AJAYIClaimantEBURY PARTNERS LIMITEDDefendant
for The Claimant did not appearJamie Riley KC and Gretel Scott (instructed by Shakespeare Martineau) for DefendantHearing Hearing Date: 11 December 2025
JUDGMENTON CONSEQUENTIALS
Lionel Persey KC
[1]The Court issued my draft judgment to the Claimant, Ms Ajayi, and to the Defendant’s counsel on 18th November 2025. The parties were invited to provide their spelling corrections by 21st November. It did not prove possible to hand the judgment down in circumstances where Ms Ajayi has issued an application in which she asks me to recuse myself (“recusal application”). She also requested the Defendant’s solicitor, Mr Mark Rondel, and its leading and junior counsel, Jamie Riley KC and Ms Gretel Scott, to withdraw from the case. The recusal application[2]Ms Ajayi raised objections and questions in relation to my draft judgment on 19th November and again on 21st November when she submitted her proposed corrections. She also wrote a lengthy email (with substantial attachments) to Mr Justice Andrew Baker on that day. Mr Tame, the Senior Listing Officer, advised her that if she had an application to make that would require an Application Notice. She apparently also sent me a letter on 23rd November (although I did not receive it then – I was out of the country). Ms Ajayi issued her recusal application on 24th November, accompanied by a witness statement and draft order. I was sent this on 28th November.[3]On 26th November Ms Ajayi wrote separate letters to Mr Rondel, Mr Riley and Ms Scott, requesting them to withdraw from the case. Mr Rondel responded on 28th November, declining to do so. Mr Tame told Ms Ajayi that her application had been passed to me, stated that the procedure for a recusal application was that it must be heard by the judge being requested to recuse either himself or herself and asked Ms Ajayi to confirm her availability for a hearing on Wednesday, 3rd December. In emails received by the Court on 28th November Ms Ajayi submitted that I could not hear the recusal application because for me“… to take any further substantive action (such as perfecting a judgment, making further orders, or holding consequential hearings) would be to risk making a potentially invalid decision while [my] capacity to act impartially is formally under challenge. Such action would be seen by the "fair-minded observer" as undermining the very process of the recusal application itself ...”[4]On the morning of 1 December Ms Ajayi again wrote to Mr Justice Andrew Baker She submitted in her email to him that I should take no further substantive action until my capacity to act impartially had been determined. Mr Tame responded that he had not passed this email on to Andrew Baker J as it was not appropriate to do so, that I would hear her application on Wednesday, 3rd December and that if I decided not to recuse myself that I would hand down the judgment immediately afterwards and that the parties should be prepared to argue consequentials forthwith.[5]Ms Ajayi responded at 1100 on 1st December and again submitted that it was not appropriate for me to consider the application and that her N244 application placed a mandatory pause on all further work, including the finalisation and promulgation of the judgment. She went on to say that she was a vulnerable litigant in person who suffered from health issues (the first time that she raised questions relating to her health), that she had had no proper notice of any purported hearing of decision to proceed with the judgment and that she was actively seeking counsel to properly articulate the serious grounds of apparent bias.[6]At 1117 she again wrote, setting out her submissions as to the appropriate process and saying this “… With regards to availability, I am very sick and looking for a barrister to represent me as I am not able to attend court on Wednesday. I am actually now trying to contact my respiratory and cardiac doctor as my heart rate is at 146 bpm and my oxygen is down to 88. I will then head to hospital or call an ambulance …”[7]That was the last message received from Ms Ajayi. At 1420 on 1st December her husband, Mr Tame Ajayi, informed the Court that she would not be able to attend because of “ill health, her cardiac and respiratory issues”. I decided that the date should be maintained unless a doctor’s letter was supplied. At 1415 on 2nd December Mr Ajayi wrote to the Court, and said this “… I am afraid she is not well enough to undertake such an important responsibility. She is currently confined to bed and dependent on an oxygen machine. Speaking causes significant difficulty with her breathing, resulting in her oxygen levels dropping, her heart rate rising above 130 bpm, and her blood pressure becoming dangerously elevated. These symptoms are interconnected, and medical guidance she received in the past is that she has to avoid speaking when this happens. Given her condition, she is unable to communicate effectively and therefore cannot represent herself or participate meaningfully in any proceedings. Unfortunately, she is simply not healthy enough to take on a task of this importance at this time. I have heard from the GP and they are going to send me her patient record that can be done today, so I am waiting for that. With regards to the letter on how she is today, they say it will take around 4 weeks as it is not an NHS service. I have pressed on them how important this is, they say that it cannot be fast tracked. As soon as I get the patient record, I will send them over to you …”[8]I decided to adjourn the hearing until the following week.[9]On 4th December the Defendant’s solicitor wrote to the Court in the following terms:
“… Judgment was circulated in draft on 18 December. At the time you circulated the draft you indicated that the Judge would like to hear consequentials on 1, 2 or 3 December and so you asked the parties to confirm which date would be suitable. The Defendant’s Counsel’s clerk responded accordingly. However, the Claimant ignored that request, initially informing you that she was seeking advice and then vacillating between that position and one of writing to the Judge, other members of the judiciary, issuing an application for recusal and then repeatedly and entirely incorrectly suggesting to you that the judge could not hand down judgement. That approach persisted even when you indicated last Friday that the hearing would go ahead this past Wednesday (3 December). The Claimant’s stance only then changed last Tuesday (2 December) on the eve of the hearing, when the Claimant’s husband suggested that the Claimant was not well enough to undertake the hearing. No medical evidence to support the Claimant’s inability to attend the hearing was provided, or has since been provided, notwithstanding that it is settled law that a litigant seeking an adjournment should provide such evidence. There was also a notable disconnect between the Claimant’s asserted illness and her ability to have been arguing points of asserted law as recently as the day before. That aside and when you then sought to re-list next week, her Husband, who had taken over correspondence on her behalf, has simply failed to engage with you. Whilst the Defendant is sympathetic if the Claimant is unwell, the current state of affairs is unfair on the Defendant who is entitled to finality and for any outstanding matters to be addressed and for judgement to now be handed down ..”
[10]On 5th December Mr Ajayi again wrote to the Court and attached a summary of Ms Ajayi’s patient records. A record dated late July 2025 from Addenbrooke’s Hospital showed that Ms Ajayi’s main diagnosis was atypical connective tissue disease (systemic sclerosis spectrum sclerosis), comprisingnew onset Raynaud's phenomenon, early sclerodactyly, episodic bouts of respiratory distress (CT suggestive of bronchiectasis rather than ILD), acute pulmonary oedema in the peripartum period, that recent cardiac imaging and cardiology review has not revealed any cardiac abnormalities, and that her ongoing shortness of breath was recorded as “stable”. The documents also showed that Ms Ajayi was due to have a telephone consultation with Addenbrooke’s Hospital on 9th December.[11]On Monday 8th December the Court informed the parties that I had decided to hear the recusal application on Thursday, 11th December and that, in the event that this was unsuccessful, that I would hand down the judgment and deal with consequential orders.[12]Mr Ajayi responded at 2034 on 8th December in the following terms:
“… After assessing Golda’s condition today, I can sincerely say that she will not be able to attend the hearing if listed for Thursday, 11 December 2025. She is also unable to prepare or submit any documents, including a skeleton argument, by 12 noon on Wednesday, 10 December 2025 as she is too sick to do that. As I explained last week, Golda’s condition remains extremely serious. She is confined to bed and dependent on an oxygen machine. She has a hospital consultation tomorrow, Tuesday, at which I will be doing the speaking and narrating the current crisis to the consultants. The medical team is considering commencing a new medication. I made all of this clear in previous correspondence, and her condition has not improved much. I have requested a letter from her GP, and I will forward this to the Court as soon as it is available. I respectfully request that the hearing should be listed at a time when Golda’s health has improved and she is able to prepare and represent herself in the proceedings. This is particularly important given that she is a Litigant in Person.Listing this application at a time when Golda is demonstrably unwell is, in my view, unjust …”
[13]At 1410 on 9th December the Court advised Ms Ajayi and Mr Ajayi that I was not prepared to consider adjourning Thursday’s hearing without a doctor’s letter saying that she was unfit to attend the hearing, whether in person or virtually. Mr Ajayi responded at 1101 on 10th December as follows:
“… I have requested the GP letter and it will take up to 4 weeks (28 days), I am chasing them and there isn't any much I can do at the moment. This is unfair and it should not be like this ...”
[14]The hearing went ahead on 11th December. I ensured that a videolink was made available for Ms Ajayi to attend remotely but she did not attend.[15]I decided to proceed with the hearing notwithstanding Ms Ajayi’s failure to attend. Mr Riley KC submitted that she had been given sufficient notice of the application and that no sufficient evidence that she was unfit to attend had been given. I agreed with this and also with Mr Riley’s further submission that it was surprising, if she was unfit to attend, that she had not obtained a note or certificate to that effect from the Addenbrooke’s team following her appointment on 10th December.[16]There was, therefore, no evidence before me to establish that Ms Ajayi’s condition was any worse than it had been during the trial. Although the trial was paused from time to time to enable Ms Ajayi to take oxygen she was nevertheless able to present detailed argument and to cross-examine Ebury’s witnesses in support of her claim that the judgment of Henshaw J. should be set aside on the ground that it had been obtained by fraud.[17]I also had very much in mind the balance of justice when deciding whether to proceed. Ms Ajayi had raised very serious allegations of fraud against Ebury and their witnesses. I had found these to be without any basis. It was important for Ebury and their witnesses for the judgment to be published without further delay.[18]In my judgment I found that Ms Ajayi had failed to prove her very serious allegation that the Defendant, Ebury, had procured the judgment of Henshaw J in its favour as a result of conscious or deliberate dishonesty. Ms Ajayi was quick to assert that my draft judgment was compromised due to a serious conflict of interest in relation to the proceedings and that my judgment was authored by Ebury’s counsel. She did so because the metadata in the draft judgment showed that the document had been created by Ms Scot. This was because I had used Ebury’s skeleton argument as a foundation for writing my judgment: I considered it to be well crafted and well organised and it dealt with issues in the way that I found to be helpful. I did not have, and would not have had, any contact with Ebury’s counsel whilst I was working on my judgment. I do not consider that any reasonable or fair-minded person would consider, let alone allege, otherwise. As the metadata relied upon by Ms Ajayi also shows, I revised the document 157 times and spent some 2,455 minutes (i.e. 40.9 hours) in doing so. The judgment contained my findings on the evidence and law.[19]This unjustified attack upon my credibility and that of the Defendant’s legal representatives is, in my judgment, another example of Ms Ajayi’s readiness to assume, without more, that she is being, and has been, unfairly dealt with. She has not.[20]Ms Ajayi further submitted that my judgment exceeded the Court’s jurisdiction in several further respects, namely(1) basing my judgment on the Defendant’s skeleton arguments rather than upon the alleged false statements that Ms Ajayi had pleaded,(2) failing to use the List of Common Ground and Issues,(3) failing to analyse Ms Ajayi’s pleaded case in my draft judgment, and(4) failing to base Ms Ajayi’s summary judgment application on CPR r.24.3.[21]I do not agree. I dealt with those issues that I considered it appropriate to deal with. I could have confined my judgment to paragraphs 90-105 in which I rejected, on the evidence, Ms Ajayi’s submission that Ebury was consciously and deliberately dishonest in making the representations that she alleged that they did make. Should Ms Ajayi wish to challenge any of my findings then the appropriate course for her to take is to seek permission to appeal.[22]I was not, therefore, prepared to recuse myself and Ms Ajayi’s recusal application was rejected. I found it to be totally without merit. Handing down[23]I accordingly handed down my judgment at the hearing on 11th December. I found that Ms Ajayi’s claim had failed in every respect and was persuaded by Mr Riley’s submission that it was totally without merit. Ms Ajayi had failed to persuade me that there was any relevant new evidence upon which she could rely and, even more importantly, she had wholly failed to satisfy me that Ebury had procured the judgment of Henshaw J in its favour as a result of conscious or deliberate dishonesty. It was, and ought to have been, obvious to any reasonable, objective and suitably informed observer that her case was bound to fail. Costs[24]Ebury claim that they are entitled to their costs of the claim on an indemnity basis, and seek a payment on account of those costs and pre- and post-Judgment interest upon those costs.[25]I asked Mr Riley whether I should proceed to consider costs at the hearing on 11th December or whether I should give Ms Ajayi a little more time in which to make any submissions in the event that she chose to do so. Mr Riley submitted that she had already had sufficient time and that to delay matters any further would inevitably push a final decision into the new year. I said that I would hear Ebury on costs and would decide whether to accede to their application in this judgment. Having further reflected on the matter I have decided that it is appropriate for me to rule on the question of costs now. The basis of Ebury’s applications was very fully set out in the skeleton argument prepared by Mr Riley and Ms Scott. Ms Ajayi has had full notice of Ebury’s case. Mr Riley and Ms Scott presented their oral submissions very fairly and with due regard to the fact that Ms Ajayi was not in attendance. Indemnity costs[26]Ebury is the winning party and is entitled to its costs: CPR r.44.2(2)(a). Ebury seeks to recover its costs on the indemnity basis pursuant to CPR r.44.3(1)(b). It does so on 6 grounds, namely:(1) Ms Ajayi’s widespread and failed allegations of fraud;(2) The obvious weakness of Ms Ajayi’s claim;(3) Ms Ajayi’s inappropriate correspondence and regulatory threats;(4) Ms Ajayi’s collateral attacks on the judiciary including the recusal application;(5) Her failure to act reasonably in agreeing various joint trial documents; and(6) Her failure to accept a generous settlement offer from Ebury.[27]Mr Riley rightly accepted in oral argument that the authorities do not establish an automatic right to indemnity costs where a claim in fraud is dismissed. The Court of Appeal in Thakkar v Mican [2024] 1 WLR 496 recently summarised the principles applicable to the exercise of the court’s discretion to award indemnity costs as follows:(1) the discretion to award indemnity costs is a wide one and must be exercised taking into account all the circumstances of the case, including (but not limited to) the conduct of the paying party;(2) in order to obtain an order for indemnity costs, the receiving party must surmount a high hurdle and demonstrate some conduct or some circumstance which takes the case out of the norm. That is the critical requirement;(3) to the extent that the application is based on the paying party’s conduct, it is necessary to show such conduct was unreasonable to a high degree in order to recover indemnity costs, but it is not necessary to go so far as to demonstrate a moral lack of probity or conduct deserving of moral condemnation by the paying party;(4) merely because the conduct in question may happen regularly in litigation does not mean that such conduct cannot also be ‘out of the norm’: the word ‘norm’ is not intended to reflect whether what occurred was something that happened often so that in one sense it might be seen as ‘normal’ but rather to reflect something outside the ordinary and reasonable conduct of proceedings; and(5) the Court’s wide discretion as to costs means that efforts to go beyond the CPR to identify rules, default positions, presumptions, starting points and the like should be avoided [19-25], per Coulson LJ.[28]The authorities do show that, whilst always retaining a complete discretion, the court will in the ordinary course of events order the claimant to pay costs on an indemnity basis if they make allegations of fraud which fail: Clutterbuck v HSBC Plc [2016] 1 Costs LR 13 per David Richards J (as he then was). The case most relevant to the present is that of Tinkler v Essen [2022] Costs LR 1265, in which Leech J ordered the claimant to pay costs on an indemnity basis following his failure to set aside a previous judgment for fraud. He there held that the claimant’s attempts to set aside the previous judgment were out of the norm, based as they were on serious allegations on which he had lost comprehensively, on new documents that had little probative value and which were used as an excuse to litigate the same issues on the same evidence, and which showed that his conduct in bringing a second claim was so lacking in proportionality that it justified an order for indemnity costs [25].[29]I found in my judgment that Ms Ajayi’s fraud claim failed in every respect [109]. Her allegations were of the most serious kind. Ebury had little option but to come to court in order to defend them. Ms Ajayi was warned from the very outset, and frequently thereafter, that Ebury would be seeking indemnity costs in the event that she proceeded with her claim. I regard her conduct in bringing the claim heard before me as an abuse of process and quite out of the norm. I am satisfied that this justifies the making of an order of indemnity costs.[30]This means that it is strictly unnecessary for me to consider the further matters relied upon by Ebury. I am, however, satisfied that her persistent correspondence with Ebury, her threats of making reports to the FCA and HMRC, and her reporting of Mr Rondel to the Law Society, were wholly unjustified. Moreover, her equally unjustified collateral attacks on Henshaw J, in which she accused him of reaching a judgment that was perverse, unjust and racially motivated and on Males LJ (who dismissed her application for permission to appeal), who she accused of colluding with Henshaw J, are entirely consistent with her efforts to derail the handing down of my judgment in this claim. Finally, I note that Ebury made a generous “without prejudice save as to costs” offer to Ms Ajayi on 27 May 2025, in which they offered to bear their costs of the proceedings and waive their entitlement to costs in relation to the first claim in return for Ms Ajayi waiving any existing or future claims. She would have been considerably better off had she accepted that offer. These are all matters that reinforce my decision to make an award of indemnity costs against Ms Ajayi. Payment on account of costs[31]Ebury seeks a payment on account of costs in the sum of £473,830.57 pursuant to CPR r.44.2(8). This sum is made up as follows:-(1) 60% of incurred costs (approved by Robin Knowles J at the CMO on 14 June 2024) in the sum of £242,589), amounting to £145,553.40.(2) 100% of budgeted costs (as also approved by Robin Knowles J), amounting to £311,650.(3) 1% of the approved budget as the costs of compiling Precedent H, pursuant to CPR r.3.15(5)(a): £5,542.39.(4) 2% of the approved budget as the costs of the costs budgeting process, pursuant to CPR r.3.15(5)(b): £11,084.78.[32]I am satisfied that these costs are reasonably claimed and that the circumstances of this case are such that I should order a payment of account in the full amount for which Ebury claim. The usual order is that a payment in account is payable within 14 days but I agree with Ebury’s suggestion that the payment should be made by 9 January 2026. Interest on costs[33]Ebury submits that it is entitled to recover interest on its costs as follows:-(1) in the period pre-Judgment (i.e. to 11th December 2025), at the rate of 1% per annum over the Bank of England base rate from time to time, running from the date of payment of those costs by Ebury (which is a matter for detailed assessment) up until the date of the order; and(2) from the date of the Judgment, 11th December 2025, at the rate of 8% per annum pursuant to section 17 of the Judgments Act 1838.[34]I am satisfied that that this interest is reasonably claimed and that the sums are appropriate. Summary[35]For the reasons that I have given above I order that:(1) The Claimant’s recusal application is dismissed;(2) The Claimant shall pay the Defendant’s costs of these proceedings, to be assessed forthwith on the indemnity basis if not agreed.(3) The Claimant shall pay the Defendant the sum of £473,830.57 on account of the costs ordered under (2) above, and such payment is to be made on or before 9th January 2026.(4) The Defendant is entitled to recover interest on its costs as follows: (a) to 11th December 2025), at the rate of 1% per annum over the Bank of England base rate from time to time, running from the date of payment of those costs by Ebury (which is a matter for detailed assessment) up until the date of the order; and (b) from 11th December 2025, at the rate of 8% per annum.[36]I invite the Defendant to draw up an order reflecting my decisions.