The judgment of Mr Justice Julian Knowles in TPE v. Harvey Franks  EWHC 1765 (QB) is a reminder that the various tests in the Civil Procedure Rules should be approached in their proper order.
The application before Knowles J was the Defendant’s appeal of a decision by Master McCloud to refuse their request to set aside a default judgment under CPR 13.3. The Claimant was seeking damages for personal injuries arising out of sexual offences committed by the Defendant, of which he had been convicted in criminal proceedings. The Defence was one of limitation under s.11 Limitation Act 1980. The Master concluded:
i) that the application had been made promptly; and
ii) that there was no reasonable prospect of successfully defending the claim so it was inevitable the Court would exercise its discretion under s.33 Limitation Act 1980 to exclude the time limit.
In considering the appeal, Knowles J noted that the Master had not approached the test correctly. Knowles J emphasised that (as per the sequence in CPR 13.3) the Master should have first considered whether or not there was a real prospect of successfully defending the claim, then whether or not the application had been made promptly and the Denton criteria.
Ultimately, the appeal was allowed as Knowles J believed the Master had not correctly approached the criteria to be considered in s.33 Limitation Act 1980. During the hearing, Knowles J also considered the Appellant’s complaint that the Claimant’s representative at the hearing before the Master had only provided their skeleton argument, complete with authorities, 20 minutes before the hearing. Knowles J was firmly of the view that this should not have happened and that it was unacceptable. Noting that he would not have refused an adjournment in these circumstances as the Master did, Knowles J stressed “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”.