TPE v Franks [2018] EWHC 1765 (QB) (10 July 2018)

TPE v Franks [2018] EWHC 1765 (QB) (10 July 2018)

The Master erred in principle by not properly applying the s 33(3) criteria to the whole period of delay and by failing to require cogent evidence from the claimant explaining the delay; in the absence of such evidence, the Appellant has a real prospect of defending the claim on limitation grounds, warranting the setting aside of the default judgment.

Citation
[2018] EWHC 1765
Parties
Claimant/respondent: TPE; Defendant/appellant: Harvey Franks
Jurisdiction
England and Wales
Judgment Date
10 July 2018
Procedural Posture
Appeal / Judgment on Appeal Against Refusal to Set Aside Default Judgment
Outcome
Appeal allowed; default judgment set aside; relief from sanctions granted; leave to file and serve Defence.
Legal Topics
Default Judgment, Limitation Act 1980, Section 33 Discretion, Sexual Offences, Relief From Sanctions
Civil Procedure Personal Injury Limitation Default Judgment Limitation Act 1980 Section 33 Discretion Sexual Offences Relief From Sanctions

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Parties

TPE

Claimant/respondent

Harvey Franks

Defendant/appellant

Procedural Posture

Appeal / Judgment on Appeal Against Refusal to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the Master erred in refusing to set aside default judgment
  2. 2 Whether the limitation defence had a real prospect of success
  3. 3 Whether the Master should have adjourned the hearing due to late notice of s 33 argument

Ratio Decidendi

The Master erred in principle by not properly applying the s 33(3) criteria to the whole period of delay and by failing to require cogent evidence from the claimant explaining the delay; in the absence of such evidence, the Appellant has a real prospect of defending the claim on limitation grounds, warranting the setting aside of the default judgment.

Court Disposition

Appeal allowed; default judgment set aside; relief from sanctions granted; leave to file and serve Defence.

Orders

  • Default judgment entered for the Claimant is set aside.
  • Relief from sanctions granted to the Appellant.