TPE v Franks

TPE v Franks

The Master erred in failing to adjourn the hearing to allow the Appellant proper notice and opportunity to respond to the section 33 argument, and further erred in her application of the section 33 criteria by not properly analysing the evidence or applying the statutory factors to the entire period of delay. On the material before the court, there was a real prospect of the Appellant defending the claim on limitation grounds, and the default judgment should be set aside.

Parties
Claimant/respondent: TPE; Defendant/appellant: Harvey Franks
Jurisdiction
England and Wales
Judgment Date
10 July 2018
Procedural Posture
Civil Appeal / Appeal Against Refusal to Set Aside Default Judgment
Outcome
Appeal allowed; default judgment set aside.
Legal Topics
Limitation of Actions, Personal Injury, Sexual Offences, Default Judgment, Relief From Sanctions
Tort Law Civil Procedure Limitation of Actions Personal Injury Sexual Offences Default Judgment Relief From Sanctions

Case Brief

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Parties

TPE

Claimant/respondent

Harvey Franks

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal Against Refusal to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the Master erred in refusing to set aside default judgment where the claim was brought outside the limitation period
  2. 2 Whether the Master was entitled to consider section 33 of the Limitation Act 1980 at the interlocutory stage
  3. 3 Whether the Appellant had a real prospect of defending the claim on limitation grounds

Ratio Decidendi

The Master erred in failing to adjourn the hearing to allow the Appellant proper notice and opportunity to respond to the section 33 argument, and further erred in her application of the section 33 criteria by not properly analysing the evidence or applying the statutory factors to the entire period of delay. On the material before the court, there was a real prospect of the Appellant defending the claim on limitation grounds, and the default judgment should be set aside.

Court Disposition

Appeal allowed; default judgment set aside.

Orders

  • Default judgment in favour of the Claimant is set aside.
  • Relief from sanctions granted to the Appellant.