TPE v Harvey Franks [2018] EWHC 1765 (QB) - limitation
The Claimant sued for personal injury and loss arising out of sexual offences committed against him by the Defendant in 1997-8, and for which he had been convicted in 2016. A letter before claim was sent to the Defendant in prison in May 2017. The claim was issued and served on the Defendant in prison on or about 1 August 2017. No acknowledgement of service or defence was entered. On 16 August 2017 The Claimant applied for summary judgment. This was granted on 24 August 2017. On 25 September 2017 the Defendant’s solicitors notified TPE's solicitors that they were now acting. Master McCloud refused to set aside the default judgment entered against the Defendant. She did so on the basis that the Appellant had no reasonable prospects of defending the claim, in particular, on the grounds that the claim was brought outside the three-year period provided for in s 11 of the Limitation Act 1980. The Master held that it was inevitable that any judge would exclude the time limit pursuant to the equitable power to do so in Section 33 of the 1980 Act.
The order of Master McCloud was appealed and that appeal was successful before Mr Justice Knowles. He said that the Master should first have considered the merits of the Defendant’s claim that there was a real prospect of succeeding in a defence and, if she was in the Defendant’s favour on that issue, then gone on to consider how to exercise her discretion in light of her conclusion on promptness and the other factors identified by caselaw. There was also a problem because the Claimant’s solicitor had served his skeleton argument raising the issue of limitation 20 minutes before the hearing, at which point the Defendant’s counsel was “ambushed”.
Knowles J then took the unusual step of re-exercising the court’s discretion on Section 33 in relation to this claim. He pointed to a number of deficiencies in the Claimant’s account of why it had taken this long to bring a claim, including evidence from the Claimant himself. Consequently, judgment would be set aside.
The Claimant sued for personal injury and loss arising out of sexual offences committed against him by the Defendant in 1997-8, and for which he had been convicted in 2016. A letter before claim was sent to the Defendant in prison in May 2017. The claim was issued and served on the Defendant in prison on or about 1 August 2017. No acknowledgement of service or defence was entered. On 16 August 2017 The Claimant applied for summary judgment. This was granted on 24 August 2017. On 25 September 2017 the Defendant’s solicitors notified TPE's solicitors that they were now acting. Master McCloud refused to set aside the default judgment entered against the Defendant. She did so on the basis that the Appellant had no reasonable prospects of defending the claim, in particular, on the grounds that the claim was brought outside the three-year period provided for in s 11 of the Limitation Act 1980. The Master held that it was inevitable that any judge would exclude the time limit pursuant to the equitable power to do so in Section 33 of the 1980 Act.
The order of Master McCloud was appealed and that appeal was successful before Mr Justice Knowles. He said that the Master should first have considered the merits of the Defendant’s claim that there was a real prospect of succeeding in a defence and, if she was in the Defendant’s favour on that issue, then gone on to consider how to exercise her discretion in light of her conclusion on promptness and the other factors identified by caselaw. There was also a problem because the Claimant’s solicitor had served his skeleton argument raising the issue of limitation 20 minutes before the hearing, at which point the Defendant’s counsel was “ambushed”.
Knowles J then took the unusual step of re-exercising the court’s discretion on Section 33 in relation to this claim. He pointed to a number of deficiencies in the Claimant’s account of why it had taken this long to bring a claim, including evidence from the Claimant himself. Consequently, judgment would be set aside.