The claimant brought a claim for damages for personal injury and loss arising from a serious sexual offence he alleged the defendant had committed against him many years previously when the claimant was a minor, and in respect of which the defendant had been convicted in the criminal courts and sentenced to a term of imprisonment. The defendant filed no acknowledgement of service or defence and the court granted the claimant’s application for judgment in default. Refusing the defendant’s subsequent application to set aside the default judgment pursuant to CPR r 13.3, the master found that there was no substantive defence to the claim given that the defendant had been convicted of the offence in question and that, while the limitation period under section 11 of the Limitation Act 1980 had expired, it would inevitably be excluded pursuant to the court’s discretion under section 33(1) of the 1980 Act. On appeal against that decision, the defendant contended that the master should not have considered section 33 on the application to set aside the default judgment, it not having been pleaded by the claimant, and should accordingly have concluded that there was a realistic prospect of the defendant defending the claim successfully on limitation grounds.
On the appeal—
Held, appeal allowed. The question whether to exclude a time limit pursuant to section 33 of the Limitation Act 1980 could be determined at trial or as a preliminary issue or at an interlocutory stage and no particular procedure was required before section 33 could be considered. Whether it was appropriate to consider section 33 at an interlocutory stage would depend upon the facts and the prima facie existence of the expiry of the time limit could not by itself justify the setting aside of a judgment in default. It did not matter that the claimant had not pleaded section 33 in a reply given that there could not have been a reply where the claimant had obtained judgment in default in the absence of a defence. It had therefore been open to the master, as a matter of principle, to consider section 33 and she had not been bound to aside default judgment on the basis of the dates alone. The burden, which was a heavy one, lay on the claimant to demonstrate that it would be equitable under section 33 to exclude the section 11 time limit, with the question for the master being whether there was a real prospect that the claimant would fail to demonstrate that it was equitable to exclude the time limit having regard to the factors set out in section 33. The reason why the claim was brought outside of the relevant time limit was a central consideration in relation to section 33. In the absence of any evidence from the claimant explaining and justifying his conduct and his reasons for not issuing the claim sooner, it could not be said that an application under section 33 to exclude the time limit would definitely succeed, and thus the defendant had a real prospect of defending the claim. The master had erred in her consideration of section 33 and, deciding the matter afresh, the default judgment was set aside, and relief from sanctions and leave to file and serve a defence were granted to the defendant (paras 56–57, 60–61, 71, 74, 76, 78, 84, 91, 93–94).
Steven Hayden (instructed by Myers, Fletcher & Gordon) for the defendant.
David McClenaghan, solicitor (of Bolt Burdon Kemp) for the claimant.