SETTING JUDGMENT ASIDE: LIMITATION, SECTION 33 AND DENTON: CARDS ON THE TABLE PLEASE – THIS IS THE CPR

July 15, 2018 · by · in Appeals, Applications, Civil Procedure, Default judgment,, Limitation, Relief from sanctions, Setting aside judgment, Skeleton arguments, Written advocacy

In TPE v Franks [2018] EWHC 1765 (QB) Mr Justice Julian Knowles set aside a default judgment.  The case contains some important observations as to how the courts should consider an application to set aside a default judgment – considering the merits first and the Denton criteria afterwards.  It is open to a claimant to rely on the strength of their case under Section 33 of the Limitation Act 1980 in response to an application to set aside a default judgment. However in these circumstances it is important that a claimant puts sufficient evidence before the court in relation to the Section 33 criteria.

Further the judge was anxious to avoid  “ambushes” and held that the claimant should have been more open about the points it was going to argue at the hearing. Serving a skeleton argument some 20 minutes before the hearing itself was not an appropriate means of conducting litigation.

” In the modern era, civil litigation should be conducted so that both parties ‘put their cards on the table’ and give proper and fair notice of their position. It is simply not acceptable to serve a Skeleton Argument plus authorities on an opponent 20 minutes before a hearing”

THE CASE

The claimant is suing the defendant for a rape that took place in 1996.  The claimant was aged 18 in 2000. He reported the matters to the police in 2003. The defendant was subsequently convicted in 2016 and sentenced to 15 years imprisonment. He was subsequently convicted of a further offence involving another boy.

PROCEDURE  AND JUDGMENT

A letter of claim was sent to the defendant in prison in May 2017. The claim was issued (and the claimant granted anonymity)  in June 2017.

The claim was served on the defendant, in prison, on the 1st August 2017. No acknowledgement or defence was received.   The transcript states that the claimant applied for summary judgment (I assume that this was default judgment, it is referred to as default judgment later in the judgment) and judgment was entered on the 24th August.

THE APPLICATION TO SET ASIDE JUDGMENT

On the 21st September 2017 the claimant’s solicitors wrote asking for an interim payment on account of damages and costs.

On the 5th October the defendant made an application to set aside judgment and relief from sanctions for failure to file or serve an acknowledgment of service.

On the 1st November 2017 the defendant filed and served a costs budget and made an application for relief from sanctions for failing to serve it on time.

CONFUSION AT THE HEARING

The judgment makes it clear that it was not clear to the parties what was listed before the Master.
    1. I have been supplied with a full transcript of the hearing before the Master on 13 November 2017.
    2. 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 Court will hear the application, but there has not been a response and it has never been listed.”

  1. Mr Hayden went to indicate that it was only when he received TPE’s Skeleton Argument very shortly before the hearing that he became aware that TPE was arguing that the time limit applicable to the claim by virtue of s 11 of the 1980 Act (ie, three years), should be excluded pursuant to s 33.
  2. Mr McClenaghan for TPE said his position was that relief from sanctions should not be granted and in any event the application to set aside should be dismissed on its merits. There was then a discussion about the service of the default judgment on the Appellant, and the time it had taken for him to apply to set it aside, and for relief from sanctions, following his receipt of it. Mr McClenaghan submitted that the Appellant had not engaged with the Claimant’s solicitors, having been on notice since May 2017 that proceedings would be issued, and that he had not acted promptly (cf. CPR r 13.3(2), which provides that in considering whether to set aside, the court must consider whether the person seeking to set aside the judgment made an application to do so promptly).
  3. Following this discussion, the Master concluded that the Appellant had acted promptly, and said that she would look at the merits of the application to set aside, but then commented that, “I have the problem of defence counsel [ie, Mr Hayden] not being instructed in terms of responding to the limitation point” (Transcript, p14).

 

THE PROCEDURAL POSITION BEFORE THE MASTER

The judge summarised the position before the Master.

a. The Appellant had applied to set aside the default judgment on the grounds that he had a real prospect of defending the claim on limitation grounds. This was on the straightforward basis that the tort had been committed in 1997/8, the claim had not been issued until 2017, and so it was out of time under s 11 of the 1980 Act. That was Mr Hayden’s position at the hearing.
b. However, for some reason, Mr Hayden arrived for the hearing only thinking it was to be a CCMC. His solicitors had not ascertained from the Court what had been listed.
c. Minutes before the hearing Mr McClenaghan handed Mr Hayden a Skeleton Argument raising s 33, and referring to at least two authorities (namely, Raggett v The Society of Jesus Trust 1929 for Roman Catholic Purposes [2009] EWHC 909 (QB) and Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB)). This was the first time that Mr Hayden knew that the Claimant would be seeking to defeat his application at the hearing by relying on s 33 and by arguing that the Appellant had no real prospect of showing that the trial judge would not exclude the s 11 time limit pursuant to s 33.
  1. The Master then moved to hear submissions on limitation and the application of s 33. Although the application to set aside was the Appellant’s application and, as was and is common ground, the burden was on the Appellant to show that the discretion under CPR r 13.3(1)(a) should be exercised in his favour, the Master began by hearing submissions from Mr McClenaghan for the Respondent as to why an application to exclude the time limit under s 33 would inevitably succeed. Mr Clenaghan conceded that the claim had been brought outside the limitation period. But, relying solely on a psychiatric medical report from Dr Ruth Jarman, a consultant psychiatrist, which concluded that the Appellant suffered from a number of mental health issues as a result of the abuse he had suffered, as well as other issues not connected with the abuse, Mr McClenaghan submitted this report by itself amounted to material from which the Master could be sure that an application to extend time would inevitably succeed, so that there was not a real prospect of the Appellant defending the claim on that basis and therefore the application to set aside should be refused.

THE MASTER’S DECISION

The judge summarised the Master’s decision.
    1. The Master’s judgment can be summarised as follows:
a. The test was whether there was a defence which was not merely fanciful. She reminded herself that she was not trying the case summarily.
b. In terms of the commission of the tort, there was no realistic prospect of defending that given the Appellant’s conviction and what the Master described as “the wealth of medical evidence”.
c. TPE had capacity from 2000 (when he turned 18), so the Appellant “got off the ground” in terms of pleading a limitation defence.
d. However, the Appellant had to go further than that and show that he had some real prospect of defeating what she called “the inevitable application to extend time” so as to exclude the time limit in s 11 of the 1980 Act. She said:

“In other words, is there a real prospect of success on the limitation point, or is this in reality a ‘slam-dunk’ for the Claimant in terms of, ultimately, defeating the limitation point ? Is there a real prospect of success for the Claimant overall ?” (sic)

The reference in the penultimate line should obviously be to “the Defendant” rather than “the Claimant”.
e. There was clearly no prejudice, because the conviction would prove the tort.
f. Looking at the medical evidence, in the Master’s view that showed that between 2000 and 2005 the Claimant was very unwell, and so the court would not do anything but extend time for that period.
g. Going forward to 2013, TPE went to the police and the criminal proceedings and conviction followed in 2017. The Master said she thought it was “fanciful” to suppose that a Court would “hold that against the Claimant”.
h. The Master then asked: “What about the period 2005 up to 2013 ?” She then cited certain parts of Dr Jarman’s report. At paras 16-18 she concluded:

“16. The summary of the assessment was that he appeared at the threshold for diagnosis of Autistic Spectrum Disorder. He had long term difficulties with social communication and interaction and restricted behaviours, as well as his level of learning. That is just on, if you like, autism aspects and his restricted ability to deal with some of the central aspects of everyday life, on top of the other diagnoses that he has, depression, PTSD and so on.

17. That is the picture during the interim period. Would a judge hearing an application to extend time, in an otherwise bang to rights case, decline to extend time ? I do not think there is any prospect a judge would decline to extend time, given that background. He is a man with multiple deficits, some of which may have been caused by these assaults and some may not. He may have been born autistic, but either way, when you look at that package, there just is not, applying my critical faculties, a reasonable prospect of that relief in the form of dispensing with limitation being refused. I do not think I strictly have to go as far even as concluding that point as clearly as I have in the event done, in order to conclude that the application is defeated.

18. It follows that the one, potentially viable defence, which is the defeating an application to extend time, is not realistically viable in substance, so I will not set aside the default judgment. I do not see any other reason for setting aside the judgment and having a trial.”

THE DECISION ON APPEAL

The judge allowed the appeal.  He held that the Master had adopted the wrong approach to the question of setting aside a default judgment.

    1. The approach which the Master should have adopted in relation to the application to set aside the default judgment is that set out in the judgment of Christopher Clarke LJ in Regione Piemonte v Dexia Crediop SpA [2014] EWCA Civ 1298, paras 38-41, which was approved in Gentry v Miller [2016] 1 WLR 2696, paras 23-24. In the former case, Christopher Clarke LJ said:

“38. A question arose at the hearing of the appeal as to the extent to which the principles laid down in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 applied to applications to set aside a default judgement. Since the hearing this Court has given judgment in Denton v TH White Ltd [2014] EWCA Civ 906 and the parties have made written submissions on it. Neither case was concerned with applications to set aside a judgment.

39. In essence Piedmont submits that the Mitchell/Denton principles do not apply to an application to set aside a default judgment. The majority in Denton considered that the Mitchell decision was correct to attribute a particular importance to the factors listed at CPR 3.9 (1) (a) (the need “for litigation to be conducted efficiently and at proportionate cost“) and (b) (the need “to enforce compliance with rules, practice directions and orders“) because the Civil Procedure Rule Committee had rejected a recommendation in the Review of Civil Litigation Costs Final Report that CPR 3.9.1 should be reworded so that 3.9.1 (b) read “the interests of justice in the particular case“. But the Final Report did not propose any amendment to CPR 13.3 so that the reasoning of the majority in Denton does not apply to it. There is thus, it is submitted, no reason to conclude that the Mitchell/Denton principles apply to an application under CPR 13.3 or that promptness under CPR 13.3 should be regarded as anything more than a factor. I disagree.

40. In my judgment the matter stands thus. CPR 13.3 requires an applicant to show that he has real prospects of a successful defence or some other good reason to set the judgement aside. If he does, the court’s discretion is to be exercised in the light of all the circumstances and the overriding objective. The Court must have regard to all the factors it considers relevant of which promptness is both a mandatory and an important consideration. Since the overriding objective of the Rules is to enable the court to deal with cases justly and at proportionate cost, and since under the new CPR 1.1 (2) (f) the latter includes enforcing compliance with rules, practice directions and orders, the considerations set out in CPR 3.9 are to be taken into account: see Hussein v Birmingham City Council [2005] EWCA Civ 1570 per Chadwick LJ at [30]; Mid-East Sales v United Engineering and Trading Co (PVT) Ltd [2014] EWHC 1457 at [85]. So also is the approach to CPR 3.9 in Mitchell/Denton. The fact that the Court’s judgment in Denton was reinforced by the fact that CPR 3.9 was not reworded in the manner proposed by Jackson LJ does not detract from the relevance of CPR 3.9, and what was said about it in Denton, to applications under CPR 13.

41. Denton makes clear that any application for relief against sanctions involves considering (i) the seriousness and significance of the default (ii) the reason for it and (iii) all the circumstances of the case. At the third stage factors (a) and (b) in CPR 3.9 are of particular, but not paramount, importance.”

    1. In fact, the Master decided the question of promptness first, having been invited to do so by Mr McClenaghan, and held that the Appellant had, given the circumstances of his incarceration, acted promptly, and she then went on to consider whether the limitation defence had a real prospect of success. That was the wrong way around. As the case law I have quoted makes clear, the Master should first have considered the merits of the Appellant’s claim that there was a real prospect of succeeding in a defence and, if she was in the Appellant’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 Christopher Clarke LJ. In saying this, I do not intend to be critical of the Master. She was not assisted by the way in which the advocates presented the issues to her. It does not appear that she was shown the relevant authorities, although Denton was referred to in passing.
    2. However, had she adopted the correct approach, in my judgment the Master would have been bound to conclude that if there was a real prospect of the Appellant defending the claim, then her discretion should be exercised in the Appellant’s favour to set aside the default judgment. There is no Respondent’s Notice in respect of her findings on promptness, and in any event I am inclined to agree with her.
    3. It follows that this appeal turns on how the Master approached the limitation defence, both procedurally and substantively, and whether she was correct in her conclusions.
Was the Master entitled to consider s 33 at all ?
    1. I do not consider that Mr Hayden is correct in his submission that the Master was not entitled to consider s 33 at all on the application under CPR 13.3(1), and that she was bound to set aside the judgment in default on the simple basis that the cause of action arose in 1997/8 and the claim was not issued until 2017. True it is that the Claimant had not pleaded it in a Reply. But there could not have been a Reply because the Claimant had obtained judgment in default in the absence of a Defence.
    2. As the White Book 2018, Vol 2, says at para 8-94.7, the question of whether to exclude a time limit under s 33 can be determined at trial or as a preliminary issue or at an interlocutory stage. It goes on to point out that the 1980 Act does not lay down any specific procedure whereby the statutory power under s 33 is to be invoked. Then, it says this (sic):

“In order to preclude any undue prolongation of an action which it may not be equitable to permit to proceed and in seeking to limit the burden of costs which may be imposed on the defendant, an application by the defendant to stay the claim under CPR r 3.1(2)(f) would, provided that the claimant has given due notice of the defendant’s intention to rely on the section, serve to initiate the investigation contemplated by s 33.”

    1. I think there may be some words missing in this passage. It appears to be derived from what Shaw LJ said in Walker v Precision Forgings Ltd [1979] 1 WLR 1228, 1238 in relation to the analogous provisions in the Limitation Act 1979 as amended by s 1 of the Limitation Act 1975:

“The Act of 1975 does not lay down any specific procedure whereby the statutory power under section 2D is to be invoked and considered in relation to an action instituted by a writ issued after the expiry of the primary period of limitation. It would seem, therefore, that the question can be raised at any appropriate stage of the litigation so commenced. It may await the actual trial of the substantive issues in the action; indeed it may in some situations be so intimately and inextricably bound up with them as to make any summary resolution of the question impracticable. More generally, in order to preclude any undue prolongation of an action which it may not be equitable to permit to proceed and in seeking to limit the burden of costs which may be imposed on a defendant, a summons by him to stay the action would serve to initiate the investigation contemplated by section 2D. In a clear case the action may be thus summarily terminated.”

    1. I think therefore that the extract from the White Book that I have quoted should read at the end:

“… , an application by the defendant to stay the claim under CPR r 3.1(2)(f) would, provided that the claimant has given due notice of [his] intention to rely on the section, serve to initiate the investigation contemplated by s 33.”

    1. Be that as it may, I consider that the point is clear. No particular procedure is required before s 33 can be considered. Whether or not it will be appropriate to do so at an interlocutory stage will depend on the facts. I agree with Mr McClenaghan that it cannot be the case that the prima facie existence of the expiry of the time limit under s 33 can by itself justify the setting aside of a judgment in default, any more than it can by itself the staying of a case under CPR r 3.1(2)(f). As he says, that approach would be to ignore the obvious.
    2. It follows that it was open as a matter of principle to the Master to consider s 33 and she was not bound to aside default judgment on the basis of the dates alone.
    3. However, I emphasise the words ‘given due notice’ in the extract from the White Book. In Ground 2 Mr Hayden’s complaint is that he was not give due notice, and so to that issue I now turn.
Should the Master have adjourned the hearing ?
    1. The question is whether the Master should have adjourned the hearing once it became apparent that TPE was relying on s 33 and that Mr McClenaghan had only served his Skeleton Argument on Mr Hayden immediately before the hearing, so that he was only then on notice that that matter was to be litigated.
    2. I am firmly of the view that this should not have happened. In the modern era, civil litigation should be conducted so that both parties ‘put their cards on the table’ and give proper and fair notice of their position. It is simply not acceptable to serve a Skeleton Argument plus authorities on an opponent 20 minutes before a hearing, as Mr McClenaghan did in this case. Mr Hayden is justified in his complaint that he was “ambushed”.
    3. The Appellant’s Skeleton Argument refers to the fact that Mr McClenaghan’s Skeleton Argument was dated 10 November 2017. Even in the absence of a direction for the service of skeleton arguments Mr McClenaghan should have served his Skeleton Argument, authorities and evidence well in advance of the hearing together with a letter clearly identifying that TPE was relying upon s 33 and that he would be inviting the Master to conclude that the Appellant had no real prospect of defending the claim on limitation grounds because an application under s 33 would inevitably succeed.
    4. As well as potentially unfairly prejudicing the Appellant, the approach taken by TPE’s legal advisers did not assist the Master if, as I assume, she too only received the Skeleton Argument shortly before the hearing. Queen’s Bench Masters have to deal with an enormous volume of work and are entitled to proper notice and adequate time to consider the matters that they are going to be asked to adjudicate upon.
    5. The question whether or not to adjourn the hearing was a matter for the Master’s discretion, and her decision is not lightly to be interfered with on appeal. However, I am bound to say, with respect, that I think her conclusion was wrong and the reasons which she gave for not adjourning do not bear scrutiny.
    6. I have already set out the relevant part of the Master’s reasoning. Her reason for not adjourning was because she said that the Appellant’s solicitor had not checked with the court as to what the hearing was listed for. That misses the point of what Mr Hayden was complaining about. Even if his solicitors had checked, and been told that the set aside application was to be heard that day, Mr Hayden would have come to court believing that in order to show that the Appellant had a real prospect of defending the claim, he simply had to point to the fact that the tort was committed in 1997/8 and the claim not issued until 2017. He would still have been ambushed by the Claimant’s Skeleton Argument. The default on the part of the Appellant’s solicitors which the Master rightly or wrongly concluded had occurred was not therefore causally related to the prejudiced position which Mr Hayden found himself.
    7. For the same reasons, the fact that the Appellant’s solicitors sought to have the hearing as the set-aside hearing is nothing to the point. Mr Hayden would still have been ambushed.
    8. In my judgment the Master should, as a matter of fairness, have adjourned the hearing on the limitation issue for the Appellant to have a proper opportunity to consider the Claimant’s argument, authorities and evidence and to formulate a proper response.
    9. However, in light of my overall conclusion on the appeal, namely that the judgment in default should be set aside because the Master was wrong not to have concluded that there is a real prospect of the Appellant defending the claim, it is not necessary to say anything further on this ground of appeal.
Did the material before the Master demonstrate that the Appellant has a real prospect of defending the claim on limitation grounds ?
    1. Section 33 involves the exercise of discretion. In KR and others v Bryn Alyn Community (Holdings) Ltd (in liquidation) and another [2003] EWCA Civ 85 Auld LJ observed at paras 68 – 69 that the discretion of a judge under s 33 is fettered only to the extent that it provides a non-exhaustive list of circumstances to which he should have regard. However, the matter is not determined simply by assessing comparative scales of hardship: Long v Tolchard & Sons Ltd [2001] PIQR P18. The overall question is one of equity, namely, whether it would be ‘equitable’ to disapply the limitation provisions having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case, including those specifically mentioned in s 33(3): Nash v Eli Lilly & Co [1993] 1 WLR 782 and Whitfield v North Durham Health Authority [1995] 6 Med LR 32, 39 per Waite LJ.
    2. I have already mentioned that the question for me under CPR r 52.21(3) is whether the Master’s decision was ‘wrong’. In Bryn Alyn Auld LJ said that the width of the discretion under s 33 is such that an appellate court should not intervene save where the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement is possible: Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189, 197, per Ward LJ. That includes the exercise of wrong principles, taking account of irrelevant factors, ignoring relevant factors or the making of a decision that is ‘palpably or ‘plainly wrong: Farthing v North East Essex Health Authority [1998] Lloyd’s Rep Med 37 and Margolis v Imperial Tobacco Ltd [2000] MLC 204. If the court intervenes on any of those grounds, it should treat the matter as at large and exercise its own discretion in accordance with s 33
    3. It is plain from the authorities that the reasons why the claim was brought outside of the relevant time limit is a central consideration in relation to s 33. In A v Hoare [2008] 1 AC 844, the House of Lords over-ruled its own previous decision and held that the time limit for bringing a claim for intentional injuries could be extended under s 33. In giving the leading judgment Lord Hoffmann held that the question as to the effect on an actual Claimant of his psychological state in consequence of the injury could be taken into account under s 33(3)(a). In considering the effect of the decision of the House on the exercise of the discretion under s 33 he emphasised at para 49 that the discretion was unfettered: Horton v Sadler [2007] 1 AC 307. At the end of that paragraph, he concluded:

“The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the Claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.”

    1. The cases also make clear that the Claimant’s evidence is very important. In AB and others v Nugent Care Society [2010] 1 FLR 707, para 21 the Court of Appeal said:

” … we think that there are now likely to be many cases in which a judge will consider that it is not feasible to decide the issues simply by reference to the pleadings, written witness statements and the extent and content of discovery. He or she may well conclude that it is desirable that such oral evidence as is available should be heard because the strength of the Claimant’s evidence seems to us to be relevant to the way in which the discretion should be exercised. We entirely agree with the point made at vii) that, where a judge determines the s 33 application along with the substantive issues in the case he or she should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. To do otherwise would, as the court said, be to put the cart before the horse.

22 That is however simply to emphasise the order in which the judge should determine the issues. When he or she is considering the cogency of the Claimant’s case, the oral evidence may be extremely valuable because it may throw light both on the prejudice suffered by the Defendant and on the extent to which the Claimant was reasonably inhibited in commencing proceedings. Thus, if the Claimant’s case is beset by inconsistencies and the Claimant shows himself in evidence to be unreliable, the court may conclude that the delay is likely to prejudice the Defendant in the way contemplated in Eli Lilly, namely by being put to the trouble and expense of successfully defending proceedings and then not being able to recover costs against impecunious Claimants. In those circumstances, viewing the matter more broadly, as A v Hoare enjoins the courts to do, it may well be that it would not be equitable to allow the Claimant to proceed. On the other hand, if the evidence of the Claimant is compelling and cogent that the abuse occurred, and it is said that it was the abuse that inhibited him from commencing proceedings, that is surely a compelling point in favour of the Claimant.”

    1. The central question for the Master was whether the material before her (and that which could be reasonably anticipated at trial) showed that the Appellant had a real prospect of defending the claim on the grounds of limitation. In other words, having regard to the fact that the burden would lie on the Claimant of demonstrating that it would be equitable under s 33 to exclude the s 11 time limit, the question for the Master was whether there was a real prospect that the Claimant would fail to demonstrate that it would be equitable to exclude the time limit having regard to the factors set out in s 33 ? In posing the issue this way, it is important to emphasise that the burden that would be borne by the Claimant is a heavy one: Raggett, para 118.
    2. Whilst recognising that s 33 conferred a wide discretion upon the Master, and that I as an appellate court should only interfere if I conclude that the Master’s decision was wrong in the sense I have explained, in this cases these principles could be regarded as being tempered to a degree by the fact that the Master did not hear live evidence, but judged the matter on the same materials as are before me. In that sense, therefore, I am in the same position as the Master in deciding whether the Appellant has a real prospect of defending the claim. However, true to the authorities that I have cited, my approach is that I may only interfere on the bases set out in those cases.
    3. Despite that deferential approach, I have reached the clear conclusion that the Master erred as a matter of principle such that I must exercise the s 33 discretion for myself.
    4. I begin my discussion with the observation that the Master did not specifically analyse the medical report – which was the only material relied on by the Claimant – in terms of the s 33(3) criteria. She ought to have done so, because of the language of s 33(3) (emphasis added): ‘… the court shallhave regard to all the circumstances of the case and in particular to …’ the criteria which are set out in s 33(3). The Master should have taken each of the relevant criteria and considered it in light the medical evidence, and then expressed her overall conclusion in light of her findings. That was the methodology adopted by Swift J in Raggett (and which was approved on appeal by the Court of Appeal in [2010] EWCA Civ 1002) and I respectfully agree that it is the correct approach. The Master did not do that, and that was a fundamental error of principle.
    5. The Master also erred in her treatment of the relevant time period. What she did was to determine (correctly) that time ran from 2000 when the Claimant turned 18 until 2017 when the claim was issued, but she then divided that period of 17 years into different sections, namely 2000 – 2005, 2013-2017, and considered whether in relation to each period the court would extend time. For example, in relation to 2000-2005), she said ‘… between 2000 and 2005 there is not a prospect, the Court would not do anything other than extend time because he is claiming he was unwell, very unwell.’ But the question was not whether time should be extended for 2005; it was whether it was equitable to exclude the s 11 time limit having regard to the fact that the claim was issued in 2017. What she should have done was to consider the period as a whole, and applied the s 33(3) to that whole period, rather than dividing it into sections. But in any event, as I have said, even in relation to each section that Master did not consider the factors that she was required to take into account.
    6. It therefore falls to me to consider whether the Appellant has shown that there is a real prospect of defending the claim on limitation grounds on the material that is before me. I have reached the view that there is such a real prospect. That is for the following reasons.
    7. The first matter that should have been considered under s 33(3)(a) was the length of, and the reasons for, the delay on the part of the Claimant. As to the length of the delay, taking time as starting to run from 2000 when the Claimant became an adult, that period is 17 years. As to the reasons for the delay, there is no evidence; or certainly, none directly from the Claimant. All that there is are a few lines at para 13.5 in Dr Jarman’s report as to what she says the Claimant told her were his reasons, namely, fear of not being believed; a wish to protect his father; fear that disclosure would destabilise him; and that his motivation to report was his own children and their vulnerability. However, he also told the doctor that he had, in fact, disclosed the abuse in his late teens.
    8. The Appellant does not accept this evidence. It points to matters which it says undermine the Appellant’s credibility. First, there are his criminal convictions, among which are convictions for dishonesty. Also, by way of example, Mr Hayden pointed to the Appellant’s claim that the abuse ended his aspirations to be a professional footballer and contrasted this with evidence given at the criminal trial that in fact that had ceased to be a realistic goal, which is why the Claimant had begun the referring course which brought him into contact with the Appellant.
    9. It seems to me that the evidence as to the reasons for the delay, such as it is, lacks any real cogency. There is no reason why the Claimant could not himself have given evidence in proper form about these matters and about the history more generally. I do not know and cannot speculate what he might say. It is here that the burden of proof in relation to s 33 comes into play. It would be for him to show that the time limit should be excluded and therefore the absence of cogent evidence about the reasons for the long delay counts against him in the overall determination whether the Appellant has shown there is a real prospect that the Claimant would not prevail in a s 33 application.
    10. This absence of evidence is significant because, as is said in McGee, Limitation Periods (8th Edn) at para 8-062:

“Clearly, the longer the delay on the claimant’s part, the more cogent the explanation will need to be. What is required is an explanation that will account for whatever delay has taken place”

    1. The medical report describes a number of entries in the Claimant’s GP records including for attempted suicide and depression between 1998 and 2004. The Master said that ‘realistically, between 2000 and 2005 there is not a prospect, the Court would not do anything other than extend time because he is claiming he was unwell, very unwell.’ However, there is nothing to suggest that the Claimant lacked capacity despite being unwell. In fact, during this period, the report reveals that the Claimant gained a conviction for fraud, and it states that a clinical psychologist noted in 2001: ‘… in enacting the fraud TPE is the person in control and affecting the harm rather than the individual who has lost control …’ There do not appear to be any GP records or other medical notes for the period 2004 and 2013 nor any evidence as to why the claim was not brought during this period.
    2. Overall, there is in my judgment no proper explanation as to why this claim was issued 17 years after the Claimant achieved his majority in 2000. There could be such explanation, but the Claimant did not deploy it before the Master.
    3. The next matter which ought to have been considered under s 33(3)(b) is the cogency of the evidence, and the extent to which the delay has rendered the available evidence less cogent than it would have been had the action been brought within the time-limit in s 11. The Master did obliquely refer to this consideration when she said that there could be no prejudice as to whether the Appellant did the act complained of, because of the criminal conviction. She also said that there would be prejudice in relation to the issue of causation of loss. It seems to me both of these were correct observations, and they weigh in favour of the court excluding the time limit under s 11.
    4. The next matter which fell to be considered is the Appellant’s conduct after the cause of action arose (ss 33(3)(c)), and whether there was any obstructive conduct on the part of the Appellant. There was no evidence of any such conduct.
    5. The next matter to be considered under s 33(3)(d) is the Claimant’s disability. Account must be taken of the duration of any disability of the Claimant arising after the date of accrual of the cause of action. The term ‘disability’ as used in s 33(3)(d) is a term of art, being defined for the purposes of the 1980 Act by s 38(2) as referring to a person who is an infant or who is of unsound mind. I take account of the period 1997/8 – 2000, when the Claimant was still a minor by determining the period in question to be 2000 – 2017. What about the period thereafter after the Claimant had become an adult ? In McGee at para 8.067 it is observed that incapacity falling short of disability can be taken into account as being another relevant factor in exercising the discretion, even though it does not fall under this paragraph as a ‘disability’. Therefore, the Claimant’s mental health problems, as described in the medical report, would be taken into account in favour of excluding the s 11 time-limit.
    6. The next matter which must be considered, pursuant to s 33(3)(e), is the Claimant’s conduct. The court must consider the extent to which the Claimant acted promptly and reasonably once he knew whether or not the act or omission of the Appellant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages. As with s 33(3)(a), there is no evidence about this, and the burden lies on the Claimant to explain and justify his conduct and his reasons for not issuing the claim until 2017. There is no such explanation or justification, or certainly none with the requisite degree of cogency.
    7. The final factor to be considered under s 33(3)(f) are the steps, if any, taken by the Claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received. There is no evidence as to this.
    8. I now have to make an assessment of how a court would view the overall exercise of its discretion under s 33 in light of these matters. In my judgment, in the absence of any evidence from the Claimant himself about why he waited as long as he did, it cannot be said that an application to exclude the time period under s 33 would definitely succeed. If an application under s 33 were to be made and were to be supported by proper evidence then it might well do so, but on the material before the Master, which is also before me, that conclusion cannot be reached with certainty.
Disposal
  1. Having concluded that there is a real prospect of the Appellant defending the claim, and the Master having concluded that the Appellant acted promptly in the circumstances, I exercise my discretion under CPR r 13.3(1) in the Appellant’s favour and I set aside the judgment that was entered in default for the Claimant. I grant relief from sanctions and give leave to the Appellant to file and serve his Defence.
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