Svetlana Lokhova v Piotr Tymula

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.

1. When did the 22 September email come to C’s attention?
2. When did the stay in the libel proceedings expire?
3. Were the emails protected by qualified privilege and was the evidence capable of showing malice?
4. Was there a real and substantial tort?
5. Should s. 4A of the Limitation Act 1980 be disapplied?

Dismissing the applications for reverse summary judgment and to strike out the action as a Jameel abuse, but granting the application to strike out the action because it was statute barred:

1. The email dated 22nd September 2011 was in the March 2012 DSAR disclosure but it was not noted by C until October 2012 because she had become upset on reading the contents of the disclosure.
2. The words “disposal … of Employment Tribunal proceedings” meant (in the absence of a settlement) the handing down of a judgment which dealt with issues of remedies in the ET. If he was wrong on that construction, the parties varied their agreement on the stay to make the position clear when, after the delivery of the judgment on liability, C’s solicitors wrote 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”. This made it clear that it was the judgment on the remedy hearing which was critical to the ending of the stay.
3. Since the 21 and 22 September emails were published to work colleagues who had a common interest in the subject matter of the publication, they were indisputably on an occasion of qualified privilege. C’s case on malice was arguable because she might, with further disclosure and evidence, have been able to show that D had made statements about her which he knew to be untrue. However, it could fairly be characterised as weak: there was no documentary evidence to suggest a campaign by D, and there was only the possibility that further documents or telephone calls might evidence such a campaign. The Judge considered whether his finding that there was a weak case on malice had any effect on the other applications.
4. There was limited evidence about D’s involvement in any campaign. Publication of the emails was very limited, and was made to individuals who had a low opinion of C, although not one which related to regulatory risk, and against whom C had brought ET proceedings. Although there was very little evidence to suggest that D would republish the allegations, there remained the possibility that justification might be in issue and D had made it plain that he reserved the right to plead justification. This meant that the proceedings might serve a purpose and were capable of amounting to a real and substantial tort.
5. The stay expired on 3 April 2015, four weeks after the hand down of the judgment on remedies, and C did not take any steps to progress the libel action at that stage. Nothing was done to progress the action until 30 September 2015, and there was no evidence to show that C’s failure to do so resulted from a misunderstanding as to whether it was still in place. There was an important period of delay at a time when there was a need to get on with the action. D would suffer substantially more prejudice from the disapplication of the limitation period than C from a refusal to disapply. The new proposed case was of a different magnitude from the claim arising out of the two emails. On the other hand C would lose her right to bring a libel action which had a weak prospect of success. It was not equitable to allow the action to proceed. The need to get on with the libel action, as with all libel actions, was very much engaged after 3rd April 2015. Instead C did nothing for a further unexplained period of delay in a case which was weak, and was seeking to pursue a much wider case involving allegations of a campaign.

The decision is another salutary reminder (following Bewry v Reed Elsevier [2014] EWCA Civ 1411; [2015] 1 WLR 2565) that a claimant must get on with her pursuit of a libel complaint both before and after a claim has been issued, and provide an adequate explanation for any delay that occurs where the discretion under s.32A is invoked. It further confirms that there is no rule of practice requiring a defendant to serve a defence before C is required to issue a limitation application.

The decision also highlights the wide-ranging nature of the analysis of the circumstances of the case that will be undertaken by the Court on a s.32A application. The fact that the Judge found that C’s case was weak, and the fact that she sought to expand her case to include more wide-ranging allegations of a campaign, were also significant factors in the Court’s refusal to disapply the limitation period.

Epilogue: C was refused permission to appeal on paper by decision of a single Lord Justice dated 18 April 2016.