Lokhova v Tymula

In a defamation claim subject to the one-year limitation period, the court must balance all the circumstances under section 32A of the Limitation Act 1980. Relevant considerations include the claimant’s knowledge, the reasons for and length of delay, promptness after knowledge, evidential prejudice, the strength of the claim and the prejudice to each party. A reasonable stay agreed to await related proceedings may justify earlier delay, but the claimant must progress the action promptly when the stay ends. A weak case may still constitute a real and substantial tort where vindication or a justification issue remains realistically possible. Summary judgment must not become a mini-trial, and a qualified-privilege defence should proceed to trial where malice is arguable.

The claimant brought a libel claim concerning two emails sent by the defendant, former work colleagues, in September 2011. The claim form was issued in November 2012. The parties later agreed a stay pending Employment Tribunal proceedings involving the claimant’s former employer. The claimant applied to disapply the limitation period, while the defendant applied for reverse summary judgment on qualified privilege and malice and to strike out the claim as a Jameel abuse of process.

The court found that the relevant email had been in an earlier disclosure but did not become known to the claimant until October 2012. The stay expired four weeks after the Employment Tribunal remedy judgment, on 3 April 2015. The central issues were whether malice was arguable, whether the claim involved a real and substantial tort, and whether it was equitable to disapply the statutory limitation period.

1. Qualified privilege and malice. The emails were published to work colleagues with a common interest and therefore on an occasion of qualified privilege. However, the claimant had an arguable, albeit weak, case that the defendant acted with malice. Further disclosure and evidence might establish that statements were knowingly untrue or made for an improper purpose. Reverse summary judgment was therefore refused. The court emphasised that an application under CPR Part 24 is not a trial or fact-finding exercise and must not become a mini-trial.
2. Abuse of process. The limited publication and weakness of the malice case did not make the proceedings abusive. The defendant reserved a justification defence, so the proceedings might still provide a legitimate advantage, including vindication. The claim was capable of amounting to a real and substantial tort. The application to strike out as a Jameel abuse was refused.
3. Stay. On the proper construction of the consent order, “disposal” of the Employment Tribunal proceedings meant hand-down of the judgment dealing with remedies. The stay therefore expired on 3 April 2015. The Employment Appeal Tribunal proceedings were separate proceedings. In any event, the parties’ correspondence had varied or clarified the agreement so that the remedy judgment was decisive.
4. Limitation. The claimant knew of the relevant facts in October 2012 and issued proceedings promptly. The period covered by the agreed stay was a reasonable period and was discounted. After 3 April 2015, however, the claimant took no steps for several months and gave no evidence explaining the delay. The proposed wider case alleging a campaign would create substantial cost, evidential and procedural prejudice to the defendant, while the underlying claim had weak prospects. Balancing all the circumstances under sections 4A and 32A of the Limitation Act 1980, it was not equitable to disapply the limitation period.
5. The applications for reverse summary judgment and strike-out as a Jameel abuse were dismissed. The claim was struck out as statute-barred.