THIS IS A SORRY TALE OF WOE:SPECULATIVE SKELETON ARGUMENTS ARE OF NO ASSISTANCE

In Lokhova -v- Tymula [2016] EWHC 225(QB) Mr Justice Dingemans set out a sorry tale of procedural issues in relation to applications in a defamation action. There are important observations in relation to co-operation; service of witness evidence and the drafting of skeleton arguments.

“There has been a conspicuous lack of co-operation by the parties with each other in the preparation of these applications for hearing, an example of which was that the parties did not agree the order of applications in the bundles or the order in which the applications were to be addressed at the hearing …. The effect of this lack of co-operation has been to increase the costs of these applications.”

“The Skeleton Arguments were much too long to be of any immediate assistance. Parts of the Skeleton Arguments were devoted to speculation about the other side’s motives for taking a particular step … Such speculation is very unlikely to be of assistance or persuasive.”

THE CASE

The claimant was bringing an action for libel. The defendant made an application to strike out on the grounds that the action was statute barred or as an abuse of process.  (The defendant was ultimately successful on the limitation ground).

THE JUDGMENT ON PROCEDURAL ISSUES

The applications and procedural issues

1. The applications are: (1) on behalf of Mr Tymula to strike out the Particulars of Claim on the basis that the causes of action are statute barred, and on behalf of Ms Lokhova to disapply the limitation period. There are issues about when Ms Lokhova became aware of the email dated 22^ndSeptember 2011, and when a stay of proceedings, agreed by the parties, expired; (2) on behalf of Mr Tymula to strike out the Particulars of Claim on the basis that the action is a Jameel abuse of process. This is on the basis that there was a minimal publication and that there is no real and substantial tort; (3) on behalf of Mr Tymula to strike out the claim or, depending on whether Mr Tymula was granted permission to issue such an application on 14^th December 2015, for reverse summary judgment, because it is contended that the emails were published on an occasion of qualified privilege and Ms Lokhova has not identified any arguable case of malice.

2. The applications have been particularly hard fought. There has been a conspicuous lack of co-operation by the parties with each other in the preparation of these applications for hearing, an example of which was that the parties did not agree the order of applications in the bundles or the order in which the applications were to be addressed at the hearing (in the event I heard Mr Rushbrooke QC first because his application had been first in time). The effect of this lack of co-operation has been to increase the costs of these applications.

3. The applications were first listed before Nicola Davies J. on 26^th November 2015, but were adjourned in circumstances where the Claimant had waited until 20^th November 2015 to make an application to disapply the limitation period. The applications were ordered to be listed for 2 days on 14^th and 15^th December 2015. Directions for the service of evidence were given providing for service of the Claimant’s evidence by 4.30 pm on 1^stDecember 2015 and for service of the Defendant’s evidence by 4.30 pm on 8^th December 2015. The deadline for service of the Claimant’s evidence was extended until 1159 hours on 2^nd December 2015. As it was the Claimant’s evidence was not served until after the close of business on 2^ndDecember 2015 and some evidence was served in the early hours on 3^rd December 2015, meaning that the evidence was not able to be considered by the Defendant until 3^rd December 2015. The Defendant served evidence on 9^th December 2015. In that round of evidence the Defendant served expert evidence on Russian law about which no notice had been given. The Claimant then served further evidence on the morning of the hearing on 14^th December 2015, contending that the Defendant had gone further than expected with its evidence and complaining about the service of the Russian law evidence.

4. The hearing came before me on 14^th December 2015 and it was apparent that the applications could not then be fairly determined. This was because both sides were contending that the late service of evidence had been caused by the other side, because both sides wanted to be able to consider the evidence served and adduce further evidence, and because neither side had attempted to co-operate and identify what the essential issues for determination were to be. There was a dispute between Mr Sherborne for the Claimant and Mr Rushbrooke QC for the Defendant about whether the hearing before Nicola Davies J. had been a directions hearing or an adjournment.

5. At the hearing on 14^th December 2015 it had become apparent that there was a factual dispute about whether Ms Lokhova, and her partner David North (“Mr North”), had received and seen the email dated 22^nd September 2011 in March 2012 (as alleged by the Defendant) or in October 2012. The Defendant relied on the evidence of James Davies (“Mr Davies”), a solicitor at Salans who were acting on behalf of the bank, and who gave evidence to the effect that the document was in bundles supplied by his firm on behalf of the bank responding to Ms Lokhova’s Data Subject Action Request (“DSAR”) in March 2012. As this issue of fact related to the application to disapply the limitation period, and it would be difficult to determine it fairly without cross examination, there was a discussion on 14^th December 2015 about whether there should be cross examination on the witness statements.

6. In the event I made an order pursuant to CPR 32.7(1) granting permission to the Defendant to cross examine Ms Lokhova and Mr North for 20 minutes each, and granting permission to the Claimant to cross examine Mr Davies for 20 minutes. The reason for the limit of time was because cross examination was restricted to the issue of receipt of the email dated 22^nd September 2011.

7. For the reasons given in a ruling I adjourned the hearing on 14^th December 2015 and reserved costs, expressing the provisional view that both parties were to blame for the need for an adjournment.

8. When the matter came back before me on 25^th January 2016 there were further procedural issues raised by the parties. These were: (1) whether the Defendant was granted permission to bring an application for reverse summary judgment, as opposed only to an application for a strike out, in respect of the claim for qualified privilege at the hearing on 14^th December 2015; (2) whether the Defendant should have permission to rely on the witness statement of Mr Davies who did not attend for cross examination on a witness statement in circumstances where he had moved from London; (3) whether the Defendant should have permission to rely on a new witness statement from Alex Trotter (“Mr Trotter”) an associate who was working for Salans at the material time.

Mr Tymula can apply for reverse summary judgment

1. I am satisfied that the Defendant was granted permission to make an application for reverse summary judgment at the hearing on 14^th December 2015 and I therefore approve the Defendant’s form of the competing drafts of my order dated 14^th December 2015 for that reason. I make this finding because at the hearing on 14^th December 2015 there was a discussion about whether it would make things clearer if the Defendant issued an application dealing directly with the issue of qualified privilege in circumstances where the Defendant was contending that the limitation period should not be disapplied and the claim struck out as an abuse of process partly by reference to what was said to be the strength of the Defendant’s case on qualified privilege, and where some of the submissions had suggested that the Claimant’s case on malice was not arguable. In the discussions relating to that issue it is right to say that Mr Rushbrooke QC did use the words, which I repeated, of “strike out“. However it was plain from the context that this was to ensure that the submissions on qualified privilege could be properly made, and that “strike out” was being used loosely to describe a summary dismissal of the claim after consideration of the evidence which had been served, or more accurately an application for reverse summary judgment pursuant to CPR Part 24. This was made clear when towards the end of the hearing I asked Mr Rushbrooke whether he was seeking reverse summary judgment and he replied “yes” (transcript 14^th December 2015, page 61, lines 24-25).

2. I am also satisfied that there was no further evidence that the Claimant wished to serve in relation to the issue of reverse summary judgment, because the issue had been identified and the Claimant was given permission to rely on further evidence in the order dated 14^th December 2015. At the hearing before me Mr Sherborne did not identify any further relevant evidence which was to be adduced for the purposes of the reverse summary judgment issue although he made submissions, which I will address when dealing with qualified privilege, to the effect that the matter should go to trial because further evidence might be obtained.

No permission to rely on the evidence of Mr Davies

1. At the hearing Mr Davies did not attend for cross examination. It appeared that Carter-Ruck, solicitors for Mr Tymula, had been told on 24^thDecember 2015 that Mr Davies was moving out of London and that he would not be able to attend Court. On 19^th January 2015 Mr Davies informed the bank that he was leaving London for Bath and would then be travelling in the west of the country. Carter-Ruck did not inform Taylor Wessing, solicitors for Ms Lokhova, about this until they sent a letter dated 21^st January 2016 stating that Mr Davies was moving out of London and would not be available to travel to London. The letter then went on to attempt to blame Taylor Wessing for this because the previous hearing had been adjourned. This was unsustainable. No order for cross examination had been made for the previous hearing and there was no information showing that Mr Davies would have been available if such an order had been made during the hearing.

2. Mr Rushbrooke accepted that CPR Part 32.7(2) was engaged. This provides that where a Court has given permission for cross-examination (as was this case) “but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission“. Mr Rushbrooke asked for permission to rely on Mr Davies’ evidence, and Mr Sherborne resisted the application. A written application was made supported by a witness statement from Claire Woolf of Carter-Ruck setting out information about when Carter-Ruck had been informed of Mr Davies’ absence. I refused permission to rely on Mr Davies’ evidence because there was no good explanation for Mr Davies’ absence such as a reason why he could not travel to London. I understand that the issue of fact to which his evidence went may not have been important for him, but there was a clear dispute of fact, and Mr Davies’ evidence was being relied on to show that the account given by both Ms Lokhova and Mr North was wrong. This meant that his evidence merited careful consideration and cross-examination had been ordered. I also took account of the fact that the application to rely on Mr Davies’ evidence was only made in the course of the hearing before me. Further although I could understand why Carter-Ruck had not alerted Taylor Wessing to the potential problems with Mr Davies over the Christmas holiday, there was no good reason for delaying providing information to Taylor Wessing until just before the hearing.

No permission to rely on the statement of Mr Trotter

1. Mr Rushbrooke also sought permission to rely on the evidence of Mr Trotter who had been an associate at Salans at the relevant time. A witness statement was produced from Mr Trotter setting out his dealings with the files. When Mr Trotter reviewed his witness statement he noted an inaccuracy, and very properly supplied further information. This related to the number of sets of files which had been made, which prompted further investigations by the Defendant during the hearing.

2. I refused the application to adduce Mr Trotter’s witness statement. This is because there was a serious failure to comply with the rules and directions which had been given for the service of evidence. The evidence was not even complete when the application was being made, because it was intended to search for the second set of files to examine them during the hearing. There was no good reason for the failures that was given to me. Mr Trotter’s evidence had been available at all times but had not been obtained. This was against a background of a procedural history where there had been failings (on both sides) to comply with orders, and where directions had been given as to service of the evidence designed to ensure that the hearing would be effective. In my judgment it would have been inconsistent with the overriding objective to allow such late evidence in circumstances where it could all have been obtained before, and where the evidence was still being clarified when the application was being made, compare Denton v TH White [2014] EWCA Civ 906; [2014] 1 WLR 3926 at paragraph 32.

Other matters

1. I should record that Mr Rushbrooke did tell me, in the course of his submissions in reply, what inquiries had shown in relation to the second set of bundles referred to by Mr Trotter. I did not take any account of this information. It was not evidence, and it related to information provided by a witness whose evidence was not before the Court because of serious procedural failings.

2. I should also record that Mr Sherborne made suggestions that Mr Tymula’s costs were being paid by the bank. I did not take any account of this information. It was not evidence.

3. I should mention one further procedural matter. This was the length of the Skeleton Arguments. As a result of a late change in arrangement for the hearing (for which the parties had no responsibility) I was given the papers in the morning of 25^th January 2016 for the two day hearing listed to start at 2 pm and to conclude by 1 pm on 27^th January (when it did conclude). There were 6 volumes of evidence (2 volumes related to the action brought by Ms Lokhova against Mr Longmuir) and 1 volume of authorities. The Skeleton Arguments were much too long to be of any immediate assistance. Parts of the Skeleton Arguments were devoted to speculation about the other side’s motives for taking a particular step (see for example paragraph 103 of the Claimant’s Skeleton Argument and paragraph 75 of the Defendant’s Skeleton Argument). Such speculation is very unlikely to be of assistance or persuasive.

4. It is important to note that the Queen’s Bench Guide, with which parties are expected to comply (see paragraph 1.13), provides at paragraph 7.10.13 at sub-paragraph 4, that a Skeleton Argument should “be as brief as the issues allow and not normally be longer than 20 pages of double-spaced A 4 paper“. Both Skeleton Arguments substantially exceeded this upper limit (being 35 pages) and the Claimant’s Skeleton Argument was in narrower type than permitted. There have been a number of authorities reminding parties of the need to keep Skeleton Arguments short and concise. InStandard Bank plc v Via Mat International Ltd [2013] EWCA Civ 490; [2013] 2 All ER (Comm) 1222, Moore-Bick LJ said “It is important that both practitioners and their clients understand that skeleton arguments are not intended to serve as vehicles for extended advocacy and that in general a short, concise skeleton is both more helpful to the court and more likely to be persuasive than a longer document which seeks to develop every point which the advocate would wish to make in oral argument.”

5. The evidence before me consisted of: witness statements dated 22^nd October 2015 and 9^th December 2015 from Nigel Tait (“Mr Tait”), a solicitor and partner in the firm of Carter-Ruck; witness statements dated 23^rd November 2015 and 2^nd December 2015 from Niri Shanmuganathan (“Mr Shanmuganathan”), a solicitor and board director in Taylor Wessing; witness statements dated 23^rd November 2015, 2^nd December 2015, 14^thDecember 2015 and 23^rd December 2015 from Ms Lokhova, and I heard cross examination of Ms Lokhova; a witness statement from Mr North dated 2^nd December 2015 and I heard cross examination of Mr North; witness statements dated 9^th December 2015 and 8^th January 2016 from Mr Tymula; and a witness statement dated 8^th January 2016 from Olga Klimova (“Ms Klimova”).

6. During the course of the hearing I was handed extracts from press coverage of the hearing before me, and Mr Shanmuganathan undertook, through Mr Sherborne, to make a witness statement exhibiting the extracts. By the time the judgment was circulated in draft to the parties I had not yet been provided with that witness statement, but a witness statement dated 10^th February 2016 has now been produced. Mr Sherborne relied on the extracts to show that Ms Lokhova needed vindication of her reputation. Mr Rushbrooke relied on the extracts to show that the emails referred to by the press in the extracts were the ones sent by Mr Longmuir, and not the ones sent by Mr Tymula. I did not derive any assistance from this evidence. This is because it showed only what might be expected from reports of the hearing before me, which reports picked up references to emails which had featured in the Employment Tribunal proceedings.

7. After the hearing the Defendant put in submissions to deal with the way in which Mr Sherborne had characterised a statement made by Mr Tymula in the email dated 22^nd September 2011 about refusing to be back up for Ms Lokhova as a lie, when it was said to be consistent with Ms Lokhova’s own evidence to the Employment Tribunal. The Claimant responded by putting in submissions to the effect that this showed that the case was not simple, and making points to the effect that Mr Tymula had not acted as if he had regulatory concerns in relation to clients. Both sides sought to adduce further evidence in the form of contemporaneous emails.

8. I have summarised material evidence in this judgment from the witness statements. However I am not in a position to make findings of fact (apart from the issue of fact in relation to date on which Ms Lokhova first received and saw a copy of the email dated 22^nd September 2011) and it is not my function to do so at an interim hearing which must not become a mini-trial. I am able to form an assessment, based on the materials before me and a reasonable assessment of what further material might become available, whether there is an arguable case on malice fit to be determined at trial and of the strength or weakness of a case to the extent that it is relevant to the limitation and abuse of process argument, but I am neither able nor entitled to go further than that, notwithstanding the invitations from counsel to do so.”

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