HomeInsightsHigh Court declines to use discretionary power to exclude limitation period in defamation claim.

The claimant, Svetlana Lokhova issued libel proceedings against the defendant, Piotr Tymula, in respect of two emails sent by Mr Tymula concerning Ms Lokhova dated 21 and 22 September 2011.

At the time the emails were sent, Ms Lokhova and Mr Tymula were work colleagues at the bank, Troika Dialog (UK) Limited.  When Ms Lokhova left her employment with the bank, she brought proceedings in the Employment Tribunal against her employer and her line managers for sex discrimination, harassment, victimisation and unlawful dismissal.  Ms Lokhova was successful in her claim and was awarded compensation in the sum of £1,762,129.50.

Ms Lokhova issued libel proceedings concerning the two September 2011 emails in November 2012.  Section 4A and of the Limitation Act 1980 provides that the time limit for bringing an action in defamation is one year from the date on which the cause of action accrued.  Ms Lokhova applied to the court for discretionary exclusion of the time limit under s 32A.

In deciding whether or not to exercise discretion, Mr Justice Dingemans noted that he had to consider whether it was equitable to allow the action to proceed having regard to the balance of prejudice.  He had to take account of all of the circumstances of the case, including the fact that Ms Lokhova’s claim in relation to malice was weak, and that there were likely to be very considerable costs involved in the proposed disclosure exercise.

Dingemans J also had to take account of the length of and reasons for delay, the date on which any facts became known to Ms Lokhova, and the extent to which she had acted promptly and reasonably once she knew whether or not the facts in question might be capable of giving rise to an action.

Dingemans J found that, contrary to Mr Tymula’s argument, the two 2011 emails had not become known to Ms Lokhova until October 2012 when disclosure was given by the bank in the Employment Tribunal proceedings.

However, considering the balance of the prejudice to Ms Lokhova from not dis-applying the limitation period and the prejudice to Mr Tymula in dis-applying the limitation period, Dingemans J found that Mr Tymula would suffer substantially more prejudice than Ms Lokhova.  He would be engaged in expensive and time consuming litigation which was bound to involve, at the least, contested applications for amendments and disclosure in which he would face a very serious allegation of a campaign which was made on the basis of some comments from the Employment Tribunal proceedings which, of themselves, did not yet support the allegations.  This was a new proposed case raised by Ms Lokhova and was “of a different magnitude” from the claim arising out of the two September 2011 emails.  On the other hand, Dingemans J said, Ms Lokhova would lose her right to bring a libel action, but that libel action had “a weak prospect of success”.

Balancing all of these factors, and taking into account all the circumstances of the case, in Dingemans J’s judgment it was not equitable to allow the action to proceed.  This was because, although the parties had acted reasonably and promptly until 3 April 2015 according to the evidence, the need to get on with the libel action, as with all libel actions, was very much engaged after this date and Ms Lokhova had done nothing for a further unexplained period of delay in a case which was weak.  She was now seeking to pursue a much wider case involving allegations of a campaign.  Therefore, Dingemans J said, s 4A of the Limitation Act should not apply.  (Svetlana Lokhova v Piotr Tymula [2016] EWHC 225 (QB) (12 February 2016) — to read the judgment in full, click here).

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