Svetlana Lokhova v David Longmuir
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 07 December 2017 |
| Neutral Citation | [2017] EWHC 3152 (QB) |
| Date | 07 December 2017 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12D02397 |
[2017] EWHC 3152 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATION LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ12D02397
Mark Lewis Solicitor Advocate of Seddons for the Claimant
Justin Rushbrooke QC (instructed by Osborne Clarke) for the Defendant
Hearing date: 1 December 2017
On this application, I have to resolve costs issues arising from the claimant's late acceptance of a Part 36 offer, and from some further applications and disputes that have followed that acceptance.
It is common ground that I should make the orders which CPR 36.13(5) requires the Court to make where a Part 36 offer is accepted after the expiry of the "relevant period", unless it would be unjust to do so. The claimant is entitled to her costs up to the date on which that period expired ("the Claimant's Part 36 Costs"). The defendant is entitled to his costs from the date of expiry of the relevant period to the date when the Part 36 Offer was accepted ("the Defendant's Part 36 Costs"). It is also common ground that the Claimant's Part 36 Costs should be assessed on the standard basis.
The defendant applies, however, for the following:
(1) an order that the Defendant's Part 36 Costs be assessed on the indemnity basis, except for those that are already the subject of an order for standard basis costs;
(2) an order that the claimant pay on the indemnity basis the defendant's costs of an application he made, post-acceptance. for an order that the damages payable under the Part 36 offer should be set off against costs which the claimant is due to pay the defendant;
(3) an order that the claimant pay the balance of the defendant's post-acceptance costs, on the standard basis.
In the course of the hearing, Mr Rushbrooke QC has corrected a misapprehension on the claimant's side, that the third application seeks prospective costs orders. It is in fact concerned only with the costs from the date of acceptance to the date of this hearing.
Procedural background
The action is for remedies for libels and a slander published by the 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 and procedural background can be quite shortly summarised.
Events from 2008 to 23 November 2015
The claimant was employed by Troika Dialog, now part of Sberbank ("the Bank"). Whilst in that job she was the victim of unlawful treatment by the Bank and fellow members of staff. One of those responsible was the defendant in this action, who was the Bank's Head of UK Equity Sales. The claimant pursued a claim in the Employment Tribunal ("ET") against him, the Bank and other fellow staff members. She alleged sex discrimination, harassment, victimisation and unfair dismissal.
Whilst that claim was pending, the claimant brought this defamation claim against the defendant personally. Her claim related to seven statements published by him to colleagues, clients, and competitors, in and between June and December 2011. The words complained of in those publications included descriptions of the claimant as a " bi-polar coke-crazed madwoman", and " Miss Bonkers". The thrust of the words complained of was that the claimant was mentally unstable and/or a drug abuser.
These proceedings were started on 14 June 2012. By that time, the defendant had already admitted liability and offered an apology and other remedies in settlement of the claim. He did so in April 2012, in response to the letter of claim. The defendant made a series of further settlement offers, and the claimant made counter-offers. None of these was accepted.
On 22 November 2012, the defendant made an offer of amends pursuant to the Defamation Act 1996. That was not accepted. The question of whether it would be accepted was put on hold, by agreement, pending the resolution of the claimant's ET claim. The claimant's solicitors had said in February 2013 that she was "minded to accept" the offer of amends, subject to "comprehensive disclosure". By that they meant full disclosure of the defendant's "campaign" of defamation.
Judgment on the merits in the ET claim was handed down in October 2013. The ET upheld the claimant's complaints of sex discrimination, harassment, victimisation and unlawful dismissal. Remedies were dealt with in a judgment of 5 March 2015, which awarded the claimant £1.762m net.
On 30 September 2015, the claimant notified the defendant of an intention to amend her claim by adding three further causes of action, two for libel and one for slander: see the 2016 Judgment at [24]. Some seven weeks later, on 20 November 2015, the claimant filed an application notice seeking permission to amend her claim in this way. But that notice did not come to the attention of the defendant straight away.
On 23 November 2015, the defendant made a Part 36 offer. This offered the sum of £70,500 "in full and final settlement of your client's claim … including the proposed amendments to that claim set out in your letter dated 30 September 2015." The offer letter also offered to issue letters of apology to the claimant and to the publishees of the offending statements, and included drafts of such apologies. The defendant offered to make a statement in open court in the form of a draft enclosed with the letter. He offered an undertaking not to repeat the same or any similar allegations. He confirmed his willingness to make payment of the sum of £70,500 within 14 days of acceptance. The letter made clear that it was intended to have the consequences of Part 36.
Events from 23 November 2015 to 10 October 2016
The "relevant period" for accepting the defendant's offer, and automatically recovering costs to the date of acceptance pursuant to CPR 36.13(1), expired on 14 December 2015 ("the Expiry Date"). It was not accepted. Instead, the claimant proceeded with her application for permission to amend her claim.
She sought to amend by adding claims in respect of two alleged libels in May 2011, and one alleged slander in February 2014. The themes of the words complained of were the same as those already complained of. The claimant had known of the 2011 publications for some time. On 6 October 2016 the claimant made a further witness statement in support of her amendment application in which, at paragraph 69, she said this about the need for these amendments:
"If I am not allowed to amend my claim to add these new statements, I will be at risk for substantial costs because of offers that the Defendant has made previously. … It is therefore critical that these amendments are allowed, in order that the entirety of the Defendant's campaign (or as much of it as I have been able to obtain through the unsatisfactory disclosure so far) can be before the Court."
I heard the claimant's amendment application on 10 October 2016. In the reserved judgment mentioned above, I dismissed it. I did so on the grounds that the slander claim had no real prospect of success, and/or the new claims were all so weak that permission should be refused on Jameel grounds ( Jameel (Yousef) v Dow Jones Inc [2005] EWCA Civ 75, [2006] QB 946); further, there had been significant unjustified delay by the claimant; it was far from clear that the grant of permission would or could achieve the claimant's stated aim; if it would, there would be prejudice to the defendant which outweighed any which the claimant might suffer; and the introduction of the new claims would represent an unnecessary and disproportionate complication of a relatively straightforward piece of litigation: see the 2016 Judgment at [64].
Events since the 2016 Judgment
My decision to dismiss the amendment application was embodied in a formal order dated 8 December 2016 ("the 8 December Order"). By that order the claimant was required to pay the costs of the amendment application, and of various other applications and appeals by her, to be assessed on the standard basis. I made an order ("The Interim Payment Order") that required the claimant to make an interim payment on account of these costs, in the sum of £105,000. That sum was due within 14 days, according to the CPR. The claimant has not paid those costs. What has happened since 8 December is this.
On 21 December 2016, the claimant issued an application seeking another 28 days to pay. I dealt with the application without a hearing on 23 December 2016. I extended time to 4 January 2017, giving these written reasons:
"1. The application is made on short notice, and the evidence filed in support has some fairly obvious shortcomings; in particular, it contains no supporting detail about the Claimant's means, in circumstances where I know she was employed at a senior level and (partly for that reason) is the recipient of a very substantial award in the Employment Tribunal.
2. Nevertheless, the evidence is just sufficient in all the circumstances to justify a short extension of time over the holiday period. I bear in mind what is said about the difficulty of getting instructions from the claimant. A further application will have to be made if a further extension is required. That application will need to be supported by evidence.
3, If no better evidence is filed than has been filed in support of this application there is a real risk the extension will not be granted. On the face of it, the claimant should be able to authorise others to amass the evidence necessary to demonstrate rather than merely assert her financial position, and to provide some detail."
No payment was made on or before 4 January...
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