Svetlana Lokhova v David Longmuir
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 05 December 2016 |
| Neutral Citation | [2016] EWHC 3568 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHJ/16/0636 |
| Date | 05 December 2016 |
[2016] EWHC 3568 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Warby
Case No: IHJ/16/0636
Mr N Shanmuganathan (Solicitor) appeared on behalf of the Claimant
Mr J Rushbrooke QC (instructed by Osborne Clarke) appeared on behalf of the Defendant
(As Approved)
This is an application on behalf of the claimant to adjourn a hearing that is currently fixed for Thursday, 8 December, on medical grounds.
The background is that the claimant seeks damages and other remedies for slander and libel. Liability is admitted, in that the defendant has made an offer of amends; but the offer has not been accepted. The claimant's case is that the defendant published the words complained of knowing them to be false or with reckless disregard for their falsity and that therefore the offer of amends does not amount to a defence.
The publications complained of were made five years ago and more, in and between June and December 2011. The claim form was issued in June 2012. The offer of amends was made in November of that year. The procedural history of the claim after that is set out in my judgment of 20 October 2016, [2016] EWHC 2579 (QB). That judgment was handed down following a hearing on 10 October in which the claimant applied for permission to amend her claim to add further causes of action and to plead matters in aggravation of damages. I refused the majority of the proposed amendments and struck out at my own initiative parts of reply which have recently been served, and I gave directions in terms which had been reviewed by the parties before they were given.
The directions included an order that all questions of costs and other matters consequential on the judgment and the orders that I have referred to were adjourned to a date and time to be fixed by liaison between the parties and the court, not before 22 November 2016. Paragraph 5 contained a list of matters to be considered at what was defined as "the Adjourned Hearing". Among those matters were:
(5) all matters of costs relating to an application before Master McCloud, and appeal before Nicola Davies J, and the claimant's application to adjourn the hearing on 10 October; and
(8) any application to the lower court for permission to appeal any decision made at the hand down or at the Adjourned Hearing.
Time for seeking to appeal from the appeal courts was extended to 21 days after the date of the Adjourned Hearing.
Thereafter the availability of counsel and the parties were checked and there were two dates which were under consideration for the Adjourned Hearing. They were 8 December, this coming Thursday, and 16 January 2017. After correspondence between the parties a hearing to fix a date took place on Monday, 21 November. It was being said then on behalf of the claimant that she had a hearing in the Employment Tribunal due to take place on 9 December, this coming Friday, which she did. It was a hearing in an action brought by her against the solicitors who previously acted for her in the Employment Tribunal proceedings.
It was said that she was unrepresented in that matter and would need time to prepare. The matter was referred to me to give listing directions and on Wednesday, 23 November the parties were told of my direction. This was that the Adjourned Hearing should be listed on 8 December. That was very nearly two months after the substantive hearing of the claimant's application. It clearly could not be called hasty. I gave reasons briefly for giving that direction. They were as reported to the parties that
"The personal attendance of the claimant is not necessary. If she prefers to work on preparing for the Employment Tribunal, she may do so."
That was said on the understanding that the 9 December hearing was an Employment Tribunal Hearing.
It was by email sent at 16.26 on Thursday, 1 December 2016 that the claimant's solicitors made the application that is now before me. It attached a copy of a report prepared by a medical professional with whom the claimant has been consulting since 2012, if not before. This described, according to the email: "amongst other things, the negative impact the preparatory work for hearings (including time spent including her lawyers) has on her health." The email requested the hearing should be adjourned to be fixed at a date in January 2017. It went on to say that it was not simply a question of whether or not it is necessary for the client to attend the hearing in person:
"As stated in the medical report, our client is currently unfit to meaningfully proceed with preparatory work for any hearing. Therefore, she will be unable to properly instruct us in preparation for the hearing if it remains on 8 December 2016."
( Quote unchecked)
The email went on, in apparent discord with the statement that I have just quoted, to say this: "Our client has asked us to remind the court that in her employment claim about Sberbank … the Employment Tribunal stated …" There was then a summary of a quotation from an important passage in the Employment Tribunal's judgment, containing a finding that the conduct of the employer had caused continuing ill health to the claimant.
My initial response was to decline to read the medical report, because it had been put forward on the basis that it could not be disclosed to the defendant. Correspondence ensued in which — to state things in summary — the defendant's solicitors proposed, in response to something that I had floated, that the hearing on 8 December should be curtailed so as to address three matters: firstly, all matters relating to costs as set out at paragraph 5 of the order; secondly any application for permission to appeal as set out in paragraph 5(8); and thirdly any other consequential issues arising from my judgment.
That was not accepted and in the result the matter has come before me today. I have heard argument from Mr Shan on behalf of the claimant and from Mr Rushbrooke QC on behalf of the defendant, and I am very grateful to them both for their clear and cogent submissions.
I have read the report in advance of the hearing. It is not necessary in view of the confidentiality of its content to read the diagnosis, or the description of the claimant's health conditions. It is enough to say that those are known to the parties, were accepted by the Employment Tribunal, and that Mr Rushbrooke has expressly stated today that there is no quarrel with the diagnostic aspect of the report.
The second part of the report for present purposes contained three paragraphs which I shall read:
"I believe she currently has various court related matters starting on 30 November until 20 December. I believe she has at least five court related matters. All of this involves major preparatory work and also for her to prepare and...
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