TPE v Harvey Franks
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 10 July 2018 |
| Neutral Citation | [2018] EWHC 1765 (QB) |
| Date | 10 July 2018 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2017/0297 |
[2018] EWHC 1765 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: QB/2017/0297
Steven Hayden (instructed by Myers, Fletcher & Gordon) for the Defendant/Appellant
David McClenaghan of Bolt Burdon Kemp for the Claimant/Respondent
Hearing date: 14 th June 2018
Judgment Approved
The Honourable
Introduction
The Claimant, TPE seeks damages for personal injury and loss arising out of sexual offences committed against him by Harvey Franks in 1997–8. Mr Franks is the Appellant in this appeal, and TPE is the Respondent.
TPE's identity has been anonymised by an order of this court dated 13 June 2017 and this is a case to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. No matter relating to TPE shall during his lifetime be included in any publication if it is likely to lead members of the public to identify him as the victim of a sexual offence.
Before me is an appeal by the Appellant against the judgment of Master McCloud dated 13 November 2017 in which she refused to set aside the default judgment entered against the Appellant in TPE's favour on 24 August 2017. 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 1980 Act”), the claim having been issued in 2017. It was conceded by TPE that the claim had been brought out of time, however the Master held that it was inevitable that any judge would exclude the time limit pursuant to the equitable power to do so in s 33 of the 1980 Act.
The Appellant challenges that conclusion on a number of grounds, namely:
a. The Master erred by considering s 33 of the 1980 Act at all in conjunction with the Appellant's application to set aside the default judgment. His argument is because the claim was conceded to be out of time (subject to the exercise of the power in s 33), the Master was bound to conclude there was a real prospect of the Appellant defending the claim, and so should have set aside the default judgment without more.
b. Alternatively, in the event that s 33 properly fell to be considered in relation to that application, the Master should have adjourned the argument because the Appellant was only put on notice by TPE that s 33 was to be relied upon on the day of the hearing.
c. Further or alternatively, the Master applied the wrong test on whether the Appellant had a reasonable prospect of successfully defending the claim.
Permission to appeal was granted by Butcher J on 10 May 2018.
The Appellant is represented by Mr Hayden. TPE is represented by Mr McClenaghan. Both advocates appeared below.
The statutory provisions
It is convenient at the outset to set out the relevant statutory provisions.
Section 11 of the 1980 Act provides:
“Special time limit for actions in respect of personal injuries.
(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
(1A) This section does not apply to any action brought for damages under section 3 of the Protection from Harassment Act 1997.
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( 4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from—
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.”
Section 33 provides:
“Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a) the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
…
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
The facts
TPE was born on [a date in] 1982. In or about 1996, when he was approximately 14 years old, TPE joined the Football Association and began to train as a linesman (as they were then called; they are now known as assistant referees). The Appellant was in charge of the training course which TPE undertook. On a date between 2 July 1997 and 28 July 1998, when he was aged 15 or thereabouts, TPE was raped by the Appellant at his house where he was tutoring TPE for a referee's exam.
TPE achieved his majority in 2000. He reported the rape to the police in 2003. However, at that time he was suffering from chronic depression and so felt unable to pursue the allegations. In January 2014 TPE reported the matter again to the police and was interviewed. In due course the Appellant was prosecuted, and on 8 July 2016 at Croydon Crown Court he was convicted following a trial of raping TPE. The Appellant was also convicted of the indecent assault of another boy.
On 2 August 2016 the Appellant was sentenced to a total of 15 years' imprisonment for these offences. He was later convicted of a further offence against another boy and sentenced to a further two years' imprisonment to be served consecutively, meaning that the Appellant is now serving a total sentence of 17 years' imprisonment.
On 19 May 2017 the Court of Appeal refused the Appellant's renewed application for permission to appeal against conviction and sentence: see [2017] EWCA Crim 768.
A letter before claim was sent to the Appellant in prison in May 2017. The claim was issued and TPE was granted anonymity on 13 June 2017.
The claim was served on the Appellant in prison on or about 1 August 2017. No acknowledgement of service or defence was entered.
On 16 August 2017 TPE applied for summary judgment. This was granted on 24 August 2017, with the order being sealed on 30 August 2017. It was served on the Appellant on 1 September 2017. On 21 September 2017 TPE wrote to the Appellant seeking an interim payment on account of damages and costs.
On 25 September 2017 the Appellant's solicitors notified TPE's solicitors that they were now acting.
On 5 October 2017 the Appellant made an application to set aside default judgment and relief from sanctions for failure to file or serve an acknowledgement of service.
On 18 October 2017 TPE filed and served his costs budget for the CCMC.
The Appellant's application to set aside was served on TPE on 27 October 2017.
On 1 November 2017 the Appellant filed and served his costs budget and made an application for relief from sanctions for failure to file it in time.
On 13 November 2017 the Master heard the Appellant's application to set aside the default judgment, and in an extempore judgment, refused it. On 1 December 2017 the Appellant filed his Notice of Appeal against the Master's decision.
The hearing before the Master
I have been supplied with a full transcript of the hearing before the Master on 13 November 2017.
It is clear that there was some confusion as to precisely what had been listed for hearing and whether it was to be a CCMC or a hearing of the Appellant's application to set aside default judgment. Mr Hayden, who appeared for the Appellant, told the Master:
“Mr Hayden: Master, we are in a strange situation. There was default judgment, as a result of a failure to acknowledge service and/or file a defence, it was set down today for a costs and case management hearing, budgets have been filed.
Master McCloud: Yes
Mr Hayden: The Defendant has made an application to set aside the default judgment. Unfortunately, today has not been listed for that, and there have been attempts, I believe by both parties, as well, in fact, to ascertain whether or not the...
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