Svetlana Lokhova v David Longmuir
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 20 October 2016 |
| Neutral Citation | [2016] EWHC 2579 (QB) |
| Docket Number | Case No: HQ12D02397 |
| Court | Queen's Bench Division |
| Date | 20 October 2016 |
[2016] EWHC 2579 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ12D02397
David Sherborne & Julian Santos (instructed by Taylor Wessing) for the Claimant
Justin Rushbrooke QC & Lorna Skinner (instructed by Osborne Clarke) for the Defendant
Hearing date: 10 October 2016
Judgment Approved
Introduction
This is an application for permission to amend the Particulars of Claim in this action for defamation. The claimant presently complains of seven defamatory statements published in 2011. By an application notice issued nearly a year ago, in November 2015, she now seeks to add three further causes of action: two in libel arising from emails sent by the defendant in May 2011, and one in slander, arising from words allegedly spoken in February 2014. At the same time, the claimant seeks to expand by amendment her case on damages, by adding details of matters to be relied on in aggravation. The limitation period for defamation is one year: Limitation Act 1980, s 4A. So all the new causes of action alleged are, on the face of it, statute-barred.
The application raises the following main issues:-
(1) Do the new claims fall within the scope of s 35 of the Limitation Act 1980 and CPR 17.4(2), such that the court has power to grant permission to amend?
(2) If so, should the court grant permission to amend?
(3) Should the court grant permission to make the amendments to the damages claim?
In addressing those issues I shall have to consider the impact, if any, of the Reply served on the claimant's behalf in the early hours of Thursday, 6 October 2016, one clear day before this hearing.
One thing that does not fall for decision is whether the court should exercise the power conferred by s 32A of the Limitation Act, to disapply the limitation period provided for by s 4A. As originally framed the application notice sought permission to amend "including if necessary permission under section 32A of the Limitation Act 1980 that section 4A of the Act shall not apply to the proposed amendments." But in the course of a hearing before Nicola Davies J in July 2016 Mr Browne QC, Leading Counsel then appearing for the claimant, disavowed any such application. He made it clear that his client was relying only on CPR 17.4(2) and that if she did not get through that gateway that would be the end of her application. Mr Rushbrooke QC, who appears for the defendant today as he did then, was concerned by some wording in the claimant's skeleton argument for this hearing, which he feared might indicate an attempt to row back on that concession. But that would need to be done without equivocation; I did not read the skeleton as resiling on what was said by Mr Browne QC; and Mr Sherborne has focused his argument on CPR 17.4(2).
Background and procedural history
From 2008 to 2010 the claimant, Svetlana Lokhova, worked for the investment bank Troika Dialog, now part of Sberbank CIB ("the Bank"). Having left to work for another financial institution she was approached in early 2011 with a view to rejoining the Bank, and she did so on 20 June 2011. She was a member of the Bank's Equity Sales Team. The defendant, David Longmuir, was the Bank's Head of UK Sales, to whom the claimant reported.
The claimant was constructively dismissed by the Bank on 18 April 2012. In May 2012 she brought proceedings in the Employment Tribunal ("the ET proceedings") against the Bank, the defendant, and three other individuals. Her claims in the ET proceedings were for sex discrimination, harassment, victimisation and unfair dismissal. Her claim against the defendant in the ET proceedings focused on derogatory statements he had made about her during her employment.
On 14 June 2012 the claimant issued this action for defamation. In it she complains of seven publications to a total of eight individuals. The publications complained of took place in and between June and December 2011. In date order they are:
(1) 15 June 2011: Instant Bloomberg chat communication to Kirill Gromov of Troika's Moscow offices
(2) 15 June 2011: Instant Bloomberg chat communication to Mark Van Loon, a fellow member of the Equity Sales Team, based in Troika's Moscow offices
(3) 20 June 2011: Instant Bloomberg chats to David Reid of Blackrock International (a Troika client based in London)
(4) 11 July 2011: words spoken and published in the office at 85 Fleet Street
(5) 28 July 2011: Instant Bloomberg chat to Richard Phillips of VTB Capital (Troika's main competitor)
(6) 28 September 2011 Instant Bloomberg chat to Marcus Martin of Unicredit (a Troika competitor based in London)
(7) 9 December 2011 email to Martin Taylor and Nicholas Barnes of Nevsky Capital (a Troika client based in London).
The words complained of in those publications include descriptions of the claimant as a " bi-polar coke-crazed madwoman", and " Miss Bonkers". The details vary but, as Mr Rushbrooke accepts, they follow a general theme of mental instability and/or drug use.
By the time the claim was issued the defendant had already apologised and offered to pay compensation and costs, and to undertake not to repeat the allegations complained of. His solicitors had written to that effect on 5 April 2012, in response to the pre-action letter sent by the claimant's solicitors. A counter-offer was made on 8 June 2012. But no agreement was reached, and proceedings were issued.
Particulars of Claim settled by Leading Counsel were served on 26 October 2012. They made the following allegations of damage, at paragraph 10: "By reason of the said publications and each of them the Claimant has suffered serious injury to her personal and professional reputation, and has also been caused considerable distress and embarrassment."
At paragraph 11 the Particulars of Claim asserted that the defendant was "likely to have published the same or comparable allegations on other occasions", and that "the claimant reserves the right to claim in respect of each and every additional such publication of which she is presently unaware but which may yet be disclosed to her…".
By letter of 22 November 2012 the defendant made a formal offer of amends pursuant to the Defamation Act 1996. The Defence was served the following day, 23 November 2012. It did not advance any positive defence. Instead, it pleaded the offer of amends as a defence. Matters were pleaded in mitigation of damages including the limited circulation of the defamatory statements, and earlier apologies and offers of settlement by the defendant. It was pleaded that the claimant's purported reservation of rights had no effect.
If the claimant had accepted the offer of amends, the defamation proceedings would have been at an end. By s 3(2) of the 1996 Act, "The party accepting the offer may not bring or continue defamation proceedings in respect of the publication concerned against the person making the offer but is entitled to enforce the offer … as follows." The regime contained in the remainder of s 3 ensures that any agreed steps can be enforced and that, failing agreement, compensation may be assessed by a Judge, without a jury, on the same principles as damages for defamation. By s 4(2) an unaccepted offer is a defence unless the conditions in s 4(3) are met: these are that the offeror
"knew or had reason to believe that the statement complained of
(a) referred to the aggrieved party or was likely to be understood as referring to him, and
(b) was both false and defamatory of that party."
A defendant is presumed not to have known or had reason to believe these things: s 4(3). Put another way, the burden of proof lies on the claimant. "Had reason to believe" is equivalent to the recklessness or conscious indifference which amounts to malice for the purposes of qualified privilege. In substance, these provisions require a claimant to prove malice of that variety, if he is to defeat an offer of amends: Milne v Express Newspapers plc [2004] EWCA Civ 664; [2004] EMLR 24. Failure to do so will result in the dismissal of the claim.
Generally speaking, a claimant whose main aim is vindication has little incentive to take on the risks involved in rejecting an offer of amends. Ordinarily, such an offer will have a substantial mitigating effect on compensation; there is what is often referred to as a "discount" for making an offer. So claimants who accept offers of amends will normally recover less in compensation than they would if they pressed on to a trial. But the reason for that is that the offer will normally have reduced the harm to reputation and feelings that would otherwise be caused by the defamation. It will have done that because the offer involves a correction and apology, normally made by a statement in open court and often accompanied by a published repetition.
The offer of amends provisions relate to "the statement complained of." Any offer must relate to one or more such statements. The bar on proceedings imposed when an offer is accepted relates to "the publication concerned".
Initially Ms Lokhova neither accepted nor rejected Mr Longmuir's offer. Her position was set out in a letter of 28 February 2013. This said that she was "minded to accept" the offer, but "subject to the issue of comprehensive disclosure". She was not convinced that she knew the full extent of what her solicitors called the defendant's "defamatory campaign" against her. Disclosure in the ET proceedings was said to be continuing. The solicitors wrote that they did not anticipate being in a position to respond to the offer of amends until "the employment trial has ended and the outstanding disclosure issues have been resolved". They proposed a four week adjournment of...
To continue reading
Request your trial
-
Dr Craig Wright v Peter McCormack
...in which the rule has been read down (or ‘expanded’, to adopt Jackson J's term) in the way set out earlier. 128 In Lokhova v Longmuir [2017] EMLR 7, in contrast, Warby J was referred to the relevant cases and held at [47] that the expanded version of CPR r 17.4(2) was to be applied. At [48]......
-
Richard Millett v The Right Honourable Jeremy Corbyn MP
...already claimed a remedy in the proceedings. That is a threshold hurdle. The relevant principles are set out in Lokhova v Longmuir [2016] EWHC 2579 (QB) [2017] EMLR 7 and Economou v De Freitas [2016] EWHC 1218 (QB), to which both parties made 51 Mr Millett argues that he can meet this te......
-
Svetlana Lokhova v David Longmuir
...defendant in 2011. Much of the background is set out in a previous judgment of mine handed down over a year ago, on 20 October 2016: [2016] EWHC 2579 (QB) ("the 2016 Judgment"). Reference can be made to that judgment for more detail, but for present purposes the key features of the factual......
-
Svetlana Lokhova v David Longmuir
...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 furth......