Lokhova v Longmuir
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Nicola Davies |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] EWHC 1977 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2016/0115 |
| Date | 29 July 2016 |
[2016] EWHC 1977 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Nicola Davies
Case No: QB/2016/0115
Desmond Browne QC & Julian Santos (instructed by Taylor Wessing) for the Respondent
Justin Rushbrooke QC & Lorna Skinner (instructed by Osborne Clarke) for the Appellant
Hearing dates: 22 July 2016
This is the defendant's appeal of the decision of Master McCloud dated 9 May 2016 whereby she rescinded her direction made on 18 March 2016 releasing to a judge the claimant's application dated 20 November 2015 to amend her Particulars of Claim to add three new causes of action and to plead a claim in aggravation of damage. All of the new causes of action are time barred, one of which is a claim for slander. Permission to appeal was granted by Laing J on 8 July 2016.
Background to the Proceedings.
The claimant in these libel proceedings is a former employee of Troika Dialog Group, a financial services group now merged with Sberbank CIB ("the Bank"). The claimant was employed in equity sales from 20 June 2011 until her resignation on 18 April 2012. She reported to the defendant who was the head of Equity Sales UK at the Bank. He was employed by the Bank in Moscow from 1 June 2004, thereafter from 3 May 2011 until his resignation on 12 April 2013. Following her resignation from the Bank the claimant brought Employment Tribunal proceedings against the Bank, the defendant and another senior colleague for sex discrimination, harassment, victimisation and unlawful unfair dismissal. The claimant was successful in the employment proceedings and was awarded £3.4 million gross in damages including £44,000 for damages for injury to her health and feelings arising from the derogatory statements made about her by the defendant and £15,000 in aggravated damages regarding a false allegation that she was a drug user.
On 14 June 2012 the claim form in these proceedings was issued; it was not served until October 2012. In these proceedings the claimant alleges libel in respect of 6 emails and Bloomberg "instant chat" messages to seven individuals and one slander. All of the publications initially complained of took place between June and December 2011. Following notification of the claim the defendant apologised, offered compensation, payments of costs and undertakings not to repeat. Such offers have been repeated on an open basis. He has made an Offer of Amends and has offered to join in the making of a Statement in Open Court. The last offer was made on 23 November 2015.
The claimant also issued libel proceedings against another employee of the bank, Mr Tymula. The claimant sought to have those proceedings consolidated with these. The Tymula proceedings were struck out by Dingemans J on 12 February 2016, Lokhova v. Tymula [2016] EWHC 225. The judge held that the claimant had been guilty of significant and unexplained delay in the period between early April 2015 and the issue of her application for a direction pursuant to section 32A of the Limitation Act 1980 ("the 1980 Act") which he refused. He also took account of what he regarded as the inherent weakness of the claim. Permission to the claimant to appeal that decision was refused on 18 April 2016 by Christopher Clarke LJ. The claimant seeks to renew that application at an oral hearing on 30 November 2016.
The substance of the claimant's application to amend.
This application was issued by the claimant on 20 November 2015, the same date as her application for a section 32A direction in the Tymula proceedings. The application consists of the following:
i) An application to amend/plead a new time barred claim arising from the publication dated 12 May 2011 to a Mr Mark Van Loon, a colleague based in the bank's Moscow office. It would appear that the claimant was aware of this email at the time she issued the proceedings on 14 June 2012;
ii) An application to amend/plead a new time barred libel claim arising from the publication of an email dated 22 May 2011 to a personal friend of the defendant. The claimant was provided with a copy of the email by, the latest, on 19 February 2013. The publishee is now deceased.
iii) An application to amend/plead a new time barred slander claim in respect of words alleged to have been spoken by the defendant on 5 February 2014 to a Mr Dayan of BCS Financial Group. The claimant's knowledge of the words is alleged to come from a third party who was not present in the room when the words were allegedly spoken. The claimant was not told of this for a year after it was alleged to have occurred and it was a further six months before the claimant notified the defendant of this allegation.
iv) An application to amend to plead for the first time a substantial case in aggravation of damages.
Procedural history of the application.
The application notice was served on 20 November 2015. In her application notice the claimant stated that the application should be heard by a "High Court Judge". At that stage the issue of consolidation with the Tymula proceedings was live. Following the strike out of those proceedings the claimant then sought to have the application heard by a Master. The defendant sought to have the matter heard by a judge. On 16 March 2016 Master McCloud listed a case management conference for 9 May 2016 with a one hour time estimate. On 18 March 2016 the Master considered paper submissions provided on behalf of the defendant (dated 15 March 2016) in support of his contention that the application should be released to be heard by a judge with a one day time estimate and made a direction to that effect. On 30 March 2016 Queen's Bench listing wrote to the parties stating that the hearing of the application had been placed in the warned list for the week commencing 18 April 2016. On 7 April 2016 the claimant issued an application seeking to set aside the Master's decision to release the matter to a judge.
Hearing before Master McCloud on 9 May 2016.
The hearing, listed for one hour, lasted an hour and a half. The parties were represented by junior counsel; Mr Sherborne for the claimant, Ms Skinner for the defendant. The defendant contended that although the Master had jurisdiction to hear the application she should release it to be heard by a judge pursuant to CPR PD 2B para 1.2 and para 6.3.12 of the Queen's Bench Guide (2016 edition) because the application raised issues of unusual difficulty or importance. The defendant relied upon the fact that an issue arose on the construction of section 35 (3) of the 1980 Act, namely whether the effect of the section, together with CPR 17.4 (2), is to preclude the court from exercising any discretion, pursuant to section 35 or separately pursuant to section 32A of the 1980 Act. In Komarek v. Ramco Energy Plc, an unreported decision of Eady J in 21 November 2002, [2002] EWHC B2 (QB), the judge found that no such discretion existed. However, conflicting views have been expressed by way of obiter dicta by the Court of Appeal in Otuo v. Brierley [2016] EMLR 6. The claimant's case was that the issue was a straightforward one. It was for the court to determine whether the new causes of action arose from the same or substantially the same facts ( CPR 35(3)); consideration of the section 32A discretion was not relevant.
In her extemporary judgment the Master noted that this was an interim application to make amendments out of time to a statement of case. She stated that it is "the sort of thing that Masters deal with day in and day out when not hearing more weighty applications and it is not at all unusual for decisions of puisne judges to be cited and argued over." The Master made reference to the judgment of Eady J in Komarek as follows:
"4. As things stand there is of course no decision of relevance which I disagree with at all, rather the application is currently put on the basis that I would be bound by a particular decision of Eady J and hence that if submissions are to be made inviting departure from that decision then I should, or perhaps must, release it to a puisne judge since I cannot depart from his decision even if it is wrong. I disagree.
5. If it might be necessary, at the ultimate hearing of the underlying application, to consider the relevance of a decision of Mr. Justice Eady as part of the argument, and possibly for me to consider whether I think it is wrong, then that has to be a factor for me to take into account as to whether it is appropriate for me to hear it, but that does imply that I am bound to release it. It seems to me, looking at this case, that there are arguments to the effect that this application actually turns on its own merits and facts. There are arguments both ways, of course and I am not at this point hearing the application itself……
8. If it boils down to an argument over whether a decision of Mr. Justice Eady is one which I think is clearly wrong then I can hear that argument and it may then be for the Court of Appeal, or a puisne judge constituted as the appeal court to decide. It may very well not boil down to that, however. It may very well boil down to the application being decided on its own merits and facts as so many are. But it does not seem to me that this is an appropriate case for me to depart from the conventional approach which is that I should decide this application on its merits and, if I am wrong, I can be appealed to the relevant appeal court.
9. I have to remind myself also that, by and large – if you look at Wood and in particular, and indeed the Good case, the Lloyds case and so on all of those cases pre-date the changes to the overriding objective that does require me to manage cases proportionately as to cost and in a proportionate way in a wider sense as well. It does involve...
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