Lokhova v David Longmuir

An appellate court should not interfere with a Master’s case-management discretion unless the decision is plainly wrong or falls outside the generous ambit of reasonable disagreement. However, an application may properly be referred to a puisne judge where it raises important and non-straightforward legal issues, involves conflicting authorities, may affect the trial timetable, or raises significant costs and proportionality questions. The factors in the Queen’s Bench Guide are not exhaustive, and no single factor is necessarily decisive. The appropriate judicial level must be assessed in the context of the overriding objective, including the efficient use of court resources and the avoidance of unnecessary appellate stages.

The claimant brought libel proceedings against the defendant arising from publications made during their employment relationship. She applied to amend her Particulars of Claim to add three new, time-barred causes of action and a claim for aggravated damages.

The Master initially directed that the application be heard by a judge, but later rescinded that direction and decided to hear the application herself. The defendant appealed. The central issue was whether the application raised legal and case-management difficulties making it more appropriate for determination by a puisne judge under the Queen’s Bench Guide and the overriding objective.

1. Appeal allowed. The application to amend was directed to be heard by a puisne judge.
2. The appellate court applied the restraint applicable to case-management appeals. It should not substitute its own discretion for that of the first-instance judge. Intervention is justified where the judge misdirected herself, failed to take relevant matters into account, considered irrelevant matters, or reached a decision plainly outside the generous ambit of reasonable disagreement. This principle was stated in Broughton v Kop Football (Cayman Limited) [2012] EWCA Civ 1473 and affirmed in Global Torch Limited v Apex Global Management Limited [2014] 1 WLR 449.
3. The proposed amendments required consideration of two separate issues. First, whether the new causes of action arose from the same or substantially the same facts under section 35 of the Limitation Act 1980 and CPR 17.4. Secondly, if they did not, whether any discretion remained under section 35 or section 32A. Those issues required engagement with conflicting decisions and dicta in Komarek v Ramco Energy Plc, Otuo v Brierley [2016] EMLR 6 and Economou v De Freitas [2016] EWHC 2128.
4. The Master had not separated those issues or grappled with the significance of the conflicting authorities. The application was therefore not straightforward and raised issues of importance within paragraph 6.3.12 of the Queen’s Bench Guide.
5. Other relevant considerations included the possible loss of the defendant’s costs protection, the proposed aggravated-damages claim, the hard-fought nature of the litigation, delay, the likely effect on the trial timetable, and the benefit of removing one level of appellate scrutiny. Hearing the application before a puisne judge was more proportionate and likely to be quicker and less costly.

• High Court (Queen’s Bench Division): The appeal from Master McCloud’s decision was allowed. The amendment application was directed to be heard by a puisne judge.
• Master McCloud: The Master had rescinded an earlier direction releasing the application to a judge and had decided to hear it herself.