Svetlana Lokhova v Piotr Tymula
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 12 February 2016 |
| Neutral Citation | [2016] EWHC 225 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12D04720 |
| Date | 12 February 2016 |
[2016] EWHC 225 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dingemans
Case No: HQ12D04720
David Sherborne and Julian Santos (instructed by Taylor Wessing) for the Claimant
Justin Rushbrooke QC and Gervase De Wilde (instructed by Carter-Ruck) for the Defendant
Hearing dates: 25, 26 and 27 January 2016
Introduction
This is the hearing of a number of applications which relate to a libel claim brought by Svetlana Lokhova ("Ms Lokhova") against Piotr Tymula ("Mr Tymula"). One issue is whether I should disapply the limitation period which applies because the libel claim is in respect of two emails sent by Mr Tymula concerning Ms Lokhova dated 21 st and 22 nd September 2011 and the action was commenced on 9 th November 2012. This is an action to which the provisions of the Defamation Act 2013 do not apply.
At the time when the emails were sent, Ms Lokhova and Mr Tymula were work colleagues at Troika Dialog (UK) Limited ("the bank"). The bank subsequently became part of the Sberbank Group and became Sberbank CIB (UK) Limited ("Sberbank").
Ms Lokhova, who left her employment with the bank, brought proceedings in the Employment Tribunal against the bank, David Longmuir ("Mr Longmuir") and Paolo Zaniboni ("Mr Zaniboni") who were her line managers, and a number of other Respondents for sex discrimination, harassment, victimisation and unlawful dismissal. The hearings took place over 22 days and Ms Lokhova was successful in her claim and was awarded compensation in the sum of £1,762,129.50. Although there were many allegations made by Ms Lokhova the claim mainly succeeded in respect of a campaign against Ms Lokhova by Mr Longmuir which included very derogatory emails sent by him about Ms Lokhova, the Bank's defensive response to Ms Lokhova's proper complaints which caused her detriment, and the influence that those matters had on Ms Lokhova's decision to resign. As both parties have referred to press coverage of this hearing in their submissions (as appears below) I should make it clear that this libel claim is not in respect of the very derogatory emails sent by Mr Longmuir.
The applications and procedural issues
The applications are: (1) on behalf of Mr Tymula to strike out the Particulars of Claim on the basis that the causes of action are statute barred, and on behalf of Ms Lokhova to disapply the limitation period. There are issues about when Ms Lokhova became aware of the email dated 22 nd September 2011, and when a stay of proceedings, agreed by the parties, expired; (2) on behalf of Mr Tymula to strike out the Particulars of Claim on the basis that the action is a Jameel abuse of process. This is on the basis that there was a minimal publication and that there is no real and substantial tort; (3) on behalf of Mr Tymula to strike out the claim or, depending on whether Mr Tymula was granted permission to issue such an application on 14 th December 2015, for reverse summary judgment, because it is contended that the emails were published on an occasion of qualified privilege and Ms Lokhova has not identified any arguable case of malice.
The applications have been particularly hard fought. There has been a conspicuous lack of co-operation by the parties with each other in the preparation of these applications for hearing, an example of which was that the parties did not agree the order of applications in the bundles or the order in which the applications were to be addressed at the hearing (in the event I heard Mr Rushbrooke QC first because his application had been first in time). The effect of this lack of co-operation has been to increase the costs of these applications.
The applications were first listed before Nicola Davies J. on 26 th November 2015, but were adjourned in circumstances where the Claimant had waited until 20 th November 2015 to make an application to disapply the limitation period. The applications were ordered to be listed for 2 days on 14 th and 15 th December 2015. Directions for the service of evidence were given providing for service of the Claimant's evidence by 4.30 pm on 1 st December 2015 and for service of the Defendant's evidence by 4.30 pm on 8 th December 2015. The deadline for service of the Claimant's evidence was extended until 1159 hours on 2 nd December 2015. As it was the Claimant's evidence was not served until after the close of business on 2 nd December 2015 and some evidence was served in the early hours on 3 rd December 2015, meaning that the evidence was not able to be considered by the Defendant until 3 rd December 2015. The Defendant served evidence on 9 th December 2015. In that round of evidence the Defendant served expert evidence on Russian law about which no notice had been given. The Claimant then served further evidence on the morning of the hearing on 14 th December 2015, contending that the Defendant had gone further than expected with its evidence and complaining about the service of the Russian law evidence.
The hearing came before me on 14 th December 2015 and it was apparent that the applications could not then be fairly determined. This was because both sides were contending that the late service of evidence had been caused by the other side, because both sides wanted to be able to consider the evidence served and adduce further evidence, and because neither side had attempted to co-operate and identify what the essential issues for determination were to be. There was a dispute between Mr Sherborne for the Claimant and Mr Rushbrooke QC for the Defendant about whether the hearing before Nicola Davies J. had been a directions hearing or an adjournment.
At the hearing on 14 th December 2015 it had become apparent that there was a factual dispute about whether Ms Lokhova, and her partner David North ("Mr North"), had received and seen the email dated 22 nd September 2011 in March 2012 (as alleged by the Defendant) or in October 2012. The Defendant relied on the evidence of James Davies ("Mr Davies"), a solicitor at Salans who were acting on behalf of the bank, and who gave evidence to the effect that the document was in bundles supplied by his firm on behalf of the bank responding to Ms Lokhova's Data Subject Action Request ("DSAR") in March 2012. As this issue of fact related to the application to disapply the limitation period, and it would be difficult to determine it fairly without cross examination, there was a discussion on 14 th December 2015 about whether there should be cross examination on the witness statements.
In the event I made an order pursuant to CPR 32.7(1) granting permission to the Defendant to cross examine Ms Lokhova and Mr North for 20 minutes each, and granting permission to the Claimant to cross examine Mr Davies for 20 minutes. The reason for the limit of time was because cross examination was restricted to the issue of receipt of the email dated 22 nd September 2011.
For the reasons given in a ruling I adjourned the hearing on 14 th December 2015 and reserved costs, expressing the provisional view that both parties were to blame for the need for an adjournment.
When the matter came back before me on 25 th January 2016 there were further procedural issues raised by the parties. These were: (1) whether the Defendant was granted permission to bring an application for reverse summary judgment, as opposed only to an application for a strike out, in respect of the claim for qualified privilege at the hearing on 14 th December 2015; (2) whether the Defendant should have permission to rely on the witness statement of Mr Davies who did not attend for cross examination on a witness statement in circumstances where he had moved from London; (3) whether the Defendant should have permission to rely on a new witness statement from Alex Trotter ("Mr Trotter") an associate who was working for Salans at the material time.
Mr Tymula can apply for reverse summary judgment
I am satisfied that the Defendant was granted permission to make an application for reverse summary judgment at the hearing on 14 th December 2015 and I therefore approve the Defendant's form of the competing drafts of my order dated 14 th December 2015 for that reason. I make this finding because at the hearing on 14 th December 2015 there was a discussion about whether it would make things clearer if the Defendant issued an application dealing directly with the issue of qualified privilege in circumstances where the Defendant was contending that the limitation period should not be disapplied and the claim struck out as an abuse of process partly by reference to what was said to be the strength of the Defendant's case on qualified privilege, and where some of the submissions had suggested that the Claimant's case on malice was not arguable. In the discussions relating to that issue it is right to say that Mr Rushbrooke QC did use the words, which I repeated, of " strike out". However it was plain from the context that this was to ensure that the submissions on qualified privilege could be properly made, and that " strike out" was being used loosely to describe a summary dismissal of the claim after consideration of the evidence which had been served, or more accurately an application for reverse summary judgment pursuant to CPR Part 24. This was made clear when towards the end of the hearing I asked Mr Rushbrooke whether he was seeking reverse summary judgment and he replied " yes" (transcript 14 th December 2015, page 61, lines 24–25).
I am also satisfied that there was no further evidence...
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