The Claimant, Svetlana Lokhova (“C”) and the Defendant, Piotr Tymula (“D), were work colleagues at Troika Dialog (UK) Limited (“the Bank”). After resigning C successfully brought proceedings in the Employment Tribunal (“ET”) against the Bank, her line managers DL and PZ, and a number of other Respondents for sex discrimination, harassment, victimisation and unlawful dismissal, for which she was awarded compensation in the sum of £1,762,129.50.
D sent two emails in relation to C while they were employed together which were the subject of her libel claim. The first, sent on 21st September 2011, was sent to a colleague MVL who was based in the Bank’s Moscow office (“the 21 September email”). In it, D referred to a risk to the Bank arising from C’s hiring and his desire to distance himself from her in case of some serious breach with accounts.
The second email, sent on 22 September 2011, was sent to DL and PZ, and bcc:d to MVL (“the 22 September email”). In it, D said he had always been open about the serious threat that C posed to the Bank and individuals that worked with her.
Prior to her ET proceedings, C made a Data Subject Access Request (DSAR) to the Bank. On 9 March 2012, the Bank provided documents to her then solicitors. There was a dispute at the instant hearing about whether the documents contained the 22 September email. Complaints were made about the adequacy of the DSAR disclosure, and, on 26 October 2012, two further files of DSAR material were sent to C. These files contained the 21 September email and the 22 September email.
A claim for libel was issued by C on 9 November 2012, ie 1 ½ months after expiry of the limitation period and whilst the ET proceedings were pending. On 16 November 2012 C’s solicitors sent a letter of claim to D. His solicitors responded stating that the claim was statute barred and that an application to disapply the limitation period would need to be made. They contended that C had had a copy of the 22 September email since March 2012.
The libel proceedings were then stayed by a consent order dated 15 March 2013, which was before the defence was due for service. The stay provided that:
“These proceedings be stayed until four weeks after disposal (whether by hand-down of judgment or settlement) of Employment Tribunal proceedings between the Claimant and Troika Dialog (UK) Limited and others (Case no.2201940/2012).”
C contended at the instant hearing that the stay covered proceedings up to and including the determination of any proposed appeal, while D contended that the stay concluded 4 weeks after the judgment on remedies was handed down.
The ET handed down judgment on liability on 31 October 2013. In a letter dated 10 December 2013, D’s solicitors noted that the judgment on remedies was outstanding and referred to some of the issues that would be addressed in that judgment, contending that as the remedy hearing had not taken place the proceedings had not been disposed of. C’s solicitors responded referring to the consent order and saying “we confirm that we agree that the stay will not therefore end until disposal of the remedy hearing or earlier settlement of those proceedings”.
C was awarded compensation by a judgment handed down on 5 March 2015. On 6 April 2015 the Bank lodged a notice of appeal. On 12 June 2015 the Employment Appeal Tribunal (“EAT”) issued directions, and the EAT Judge recorded that he was doubtful that there were any reasonable prospects of success for the appeal.
The bank did not pursue the appeal and approached C in September 2015 about withdrawing the appeal.
On 30 September 2015 C’s solicitors wrote claiming that the stay was about to expire because the appeal was going to be withdrawn and recording that their client considered that D had been part of a campaign to destroy C’s reputation.
On 20 October 2015 the Bank and D wrote to the EAT withdrawing the appeal, which agreement was confirmed in an order dated 22nd November 2015. On 22 October 2015 an application was made on behalf of D to strike out the proceedings on the basis that the causes of action were statute barred and that the claim was a Jameel abuse of process. On 20 November 2015 an application was made on behalf of C to disapply the limitation period. Following an adjourned hearing of the applications on 14 December 2015, D issued an application for strike out or reverse summary judgment, because it was contended that the emails were published on an occasion of qualified privilege, and D had not identified any arguable case of malice.
An application to amend the Particulars of Claim was also made on behalf of C to rely on a malicious campaign alleged to have been carried out by DL and D against her, C claiming that she became aware of the campaign against her from the ET proceedings.