“33 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, 11A, 11B 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, by section 11B 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. (4). In a case where the person injured died when, because of section 11, 11A(4) or 11B(2) or (4), he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased. (5). In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit. (7). In this section— “the court” means the court in which the action has been brought; “the section 11 relevant date” means the latest of the following— (a). the date from which the period of three years starts to run in accordance with section 11(4) or (5); (b). where section 28 applies, the date from which the period of three years mentioned in subsection (1) of that section (as that subsection has effect with the modification made by subsection (6) of that section) starts to run…”
“Of the court’s motion, unless [the teacher] do, by 4pm on20 July 2021 , file and serve a properly pleaded Defence, judgment in default of a Defence shall automatically be entered against him in favour of [the claimant] for damages to be assessed.”
“As this order has been made in [the teacher’s] absence, he may apply, on notice to the other parties, to vary any part of this order by 4pm on6 July 2021 .”
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if: (a). it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b). there is no other compelling reason why the case or issue should be disposed of at a trial."
“24.3.2. “no real prospect of succeeding”
“1 Entitlement to contribution. (1). Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise). (2). A person shall be entitled to recover contribution by virtue of subsection (1) above notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, provided that he was so liable immediately before he made or was ordered or agreed to make the payment in respect of which the contribution is sought. (3). A person shall be liable to make contribution by virtue of subsection (1) above notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, unless he ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against him in respect of the damage was based. (4). A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established. (5). A judgment given in any action brought in any part of the United Kingdom by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought. (6). References in this section to a person’s liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; but it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales.”
“2 Assessment of contribution. (1). Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question. (2). Subject to subsection (3) below, the court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. (3). Where the amount of the damages which have or might have been awarded in respect of the damage in question in any action brought in England and Wales by or on behalf of the person who suffered it against the person from whom the contribution is sought was or would have been subject to— (a) any limit imposed by or under any enactment or by any agreement made before the damage occurred; (b) any reduction by virtue ofsection 1 of the Law Reform (Contributory Negligence) Act 1945 orsection 5 of the Fatal Accidents Act 1976 ; or any corresponding limit or reduction under the law of a country outside England and Wales; the person from whom the contribution is sought shall not by virtue of any contribution awarded under section 1 above be required to pay in respect of the damage a greater amount than the amount of those damages as so limited or reduced.”
“Contribution in respect of settlementThe Civil Liability (Contribution) Act 1978 s.1(4) seeks to discourage unnecessary litigation by enabling a party to a settlement to recover contribution from others liable with him in respect of the damage for which he has agreed to compensate the person suffering damage. The section provides that a person may recover contribution if he has made or agreed to make any payment: “…in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) …without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.”65 The requirement that the settlement or compromise be bona fide seems aimed at excluding collusive settlements but is insufficient to exclude the injudicious or unreasonable settlement to which the party from whom the contribution is sought would not have agreed. On the other hand, it has been held that the imposition of such an agreement on a third party can be justified even though the third party played no part in formulating its terms. For where such a settlement or agreement has been approved by the court, the agreement acquires a status beyond merely a private agreement between the first and second parties to the litigation. Rather, in having been approved by the court in the exercise of its procedural powers, it would lie with any properly interested third party to invite the court to re-examine the terms of the agreement.66 Furthermore, a contribution can only be sought, of course, from persons liable for the damage. To safeguard the rights of the person from whom contribution is sought, while the person seeking contribution need not prove that he was liable on the facts, it must be shown that if the factual basis of the claim could be established, then in law the person seeking contribution was liable for the damage. Where proceedings have begun, the person seeking contribution can establish liability on the basis of the facts set out in the statement of claim.67 In other cases, the factual basis of the claim may have to depend on the facts as he understood, or ought to have understood them, to be and the question in such a case of the bona fide nature of the settlement becomes crucial. However, s.1(4) is only concerned with the issue of whether the defendant (D1) was liable to the claimant. A contribution claimant must still show that D2, the person against whom the contribution is sought, is liable for the same loss.68”
"The central feature of section 1(4) , expressly spelt out in its main part down to the proviso, is that in any such claim there will be no question, and therefore no inquiry, as to whether or not D1 was in fact liable to C."
"In my judgment the sense of that [the proviso] is that all that D1 needs to show is that such factual basis would have disclosed a reasonable cause of action against D1 such as to make him liable in law to C in respect of the damage. If he can do that, he will be entitled to succeed against D2."
“11 Convictions as evidence in civil proceedings. (1). In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or of a service offence (anywhere) shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section. (2). In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or of a service offence— (a) he shall be taken to have committed that offence unless the contrary is proved; and (b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose. (3). Nothing in this section shall prejudice the operation of section 13 of this Act or any other enactment whereby a conviction or a finding of fact in any criminal proceedings is for the purposes of any other proceedings made conclusive evidence of any fact. (4). Where in any civil proceedings the contents of any document are admissible in evidence by virtue of subsection (2) above, a copy of that document, or of the material part thereof, purporting to be certified or otherwise authenticated by or on behalf of the court or authority having custody of that document shall be admissible in evidence and shall be taken to be a true copy of that document or part unless the contrary is shown…”
“13.3 (1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if – (a) the defendant has a real prospect of successfully defending the claim; or (b) it appears to the court that there is some other good reason why – (i) the judgment should be set aside or varied; or (ii) the defendant should be allowed to defend the claim. (2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly. (Rule 3.1(3) provides that the court may attach conditions when it makes an order)” vi) That would require the teacher to show that he has a reasonable prospect of defending the claim, which I have already held with hesitation that he would, but that is not sufficient. In FXF v English Karate Federation Ltd[2023] EWCA Civ 891 it was held that to set aside a default judgment invokes the CPR3.9 relief from sanctions regime: “3.9 (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence.” and thus the 3 stage approach set out in Denton v White2014 EWCA Civ 906 of asking (i) has there been a serious or substantial breach (ii) was there good reason for it (iii) in the light of (but not controlled by) the answers to (i) and (ii) has the applicant discharged the heavy burden of showing it to be just in all the circumstances to obtain relief giving real weight to the CPR3.9(a)&(b) factors but also (CPR13.3(2)) whether the defendant has applied promptly vii) As to the application of the relief from sanctions regime: a) I consider there has been a serious and significant breach by the teacher. He simply failed to file a Defence (or an Acknowledgement of Service) and for a very considerable time b) I do not accept that there was good reason for such breach(es). I accept that the teacher was in prison, which resulted in difficulties and exacerbated difficulties of his mental health, but he had ample time and knowledge of what he needed to do as to preparing and advancing a Defence, and which I have held above would have been a fairly simple exercise c) I bear the above in mind when looking at all the circumstances. There: i) The teacher’s application to set aside or challenge the default judgment(s) were only made in 2024 during the progress of the summary judgment application in the school’s contribution claim. That is not, on any basis, “prompt” (even thought that phrase only means “with reasonable celerity in the circumstances). Further, the teacher knew himself that he needed to make an application in 2021, as he said in his correspondence with the Court in 2021 to which I have referred. The teacher also at least ought to have known that the school’s contribution claim was being pursued and ought to have read the March 2022 Order and understood it (as I have held that a reasonable reader obviously would) as to the claim being dealt with as between the claimant and the school, and as between the claimant and the teacher, but not as between the school and the teacher ii) While I accept the teacher’s statements that at times he was on the edge of a nervous breakdown, it seems to me that he had a great deal of time to do something relatively simple in providing a Defence, and in circumstances where he should have known throughout that the school was pursuing him iii) The CPR3.9(a) factor does seem to me to be in point and have weight. The teacher only now seeking to put forward a Defence will result in there having been and being serious disruption to the litigation which will have (if that is permitted) been dealt with in the past on a false basis and been much delayed iv) The CPR3.9(b) fact also does seem to me to be in point and have weight. The teacher knowingly failed to comply with orders which, in fact, would have been relatively simple and easy to comply with v) The fact that a defendant is a litigant in person does not excuse non-compliance with rules and orders – see Barton v Wright Hassall2018 UKSC 12 . Here the teacher did not even make an application when told how to do so by the court staff d) I have considered all of the circumstances together (including all those set out above) and consider that this is a situation where I should not set aside the default Judgements. I do not regard the teacher as having discharged the relevant burden of showing that it is just in all the circumstances for the Judgments to be set aside. There is a significant and substantial breach of both the rules and an order with no good reason for it and an absence of promptness and which breach has affected the course of the litigation. 77. The consequence of the default Judgment(s) is that the teacher is to be deemed to have committed the wrongs asserted by the claimant, and the teacher cannot say otherwise against the school, both the matter is res judicata (decided by the court so as to give rise to an issue estoppel) and it would be an abuse of process for the teacher to challenge it. I hold that the teacher has no real prospect of success in contending otherwise as that would be inconsistent with the default Judgment(s) and which are not to be set aside. I can see no other compelling reason for a trial. 78. In consequence, the teacher is to be deemed to have been liable to the claimant for the damage for which the school is deemed to have been liable to the claimant as a result of the bona fide settlement (section 1(4) of the 1978 Act) and the teacher has no real prospect of contending otherwise and I can see no other compelling reason for a trial. In consequence, it follows from the provisions of section 1 of the 1978 Act that the school is entitled to contribution on that basis and the teacher has no real prospect of contending otherwise and I can see no other compelling reason for a trial. 79. I then next need to consider the amount of contribution to order and have applied section 2 of the 1978 Act. The question is what is just and equitable having regard to the teacher’s and the school’s responsibility for the damage suffered by the claimant. 80. The teacher says that the school did not give the teacher proper guidance and allowed the claimant to be out of control. I do not agree that even if that is right it makes any difference. The wrongs were committed by the teacher and were serious sexual assaults committed against a child or, even once the claimant was 18, a person over whom the teacher had authority and a position of trust. The teacher took the decision to commit the wrongful acts where the teacher must have known (and to the extent that they did not subjectively appreciate, ought to have known) that they were wrongful and should not occur – that is obvious in terms of rape and assault but also so where the claimant was a child at the school under the care of the teacher. 81. It seems to me that the appropriate contribution in those circumstances is clearly 100% and that that is reinforced by such similar “committer of wrongs” cases as KD v Chief Constable of Hampshire2005 EWHC 2550 and Mohdin v Commissioner of Metropolitan Police2016 EWHC 105 (and which make clear that the contribution can also extend to the costs which the person who is secondarily liable (here the school) has had to pay to the victim (here the claimant) of the primary wrongdoer (here the teacher) D1). It seems to me that the teacher has no real prospect of contending otherwise and I can see no other compelling reason for a trial of the 100% percentage of damages element. 82. What is more of a question, and with which I now have to deal, is as to what are the right figure(s) to order the teacher to pay the school where there are two separate limits, being: i) The amount which the school actually agreed to pay the claimant, apart from questions of the school’s own costs the school cannot seek more than it paid; and ii) The amount of damages for which the teacher was ever liable to the claimant (assuming that, absent the settlement agreement and the March 2022 Order, the claim had proceeded to an assessment of damages against the teacher). The school cannot claim more than the teacher’s original liability – see section 1(1) of the 1978 Act and Perry v Merriman. The position on costs is perhaps more flexible but, again, at least in principle, the teacher should not have to pay the school for any amount which the school has overpaid. 83. Here again I proceed on a summary judgment analysis, although I note that I could always order an interim payment (CPR25.7) although that would have to be limited to a reasonable (although it can be a high) proportion of the likely end amount (CPR25.7(4)). 84. I can only apply a broad brush approach on the material before me and I have looked to establish a minimum figure as to the amount which I consider would be awarded in any event at a full assessment with evidence. 85. I do not see any real prospect of an assessment reducing the claimant’s asserted, particularised and evidenced special damages figure below 50% of the amount claimed and therefore a take a figure of£3,000 for it. 86. As far as general damages for pain, suffering and loss of amenity is concerned, the Judicial College Guidelines at the relevant time set out a range of£20 -45,000 for moderate sexual/physical abuse and£45 -120,000 for moderately severe sexual/physical abuse. They refer to relevant matters influencing the level of the award as follows: “(C) Sexual and/or Physical Abuse The cases in this section include damages for the sexual and/or physical abuse itself as well as any psychiatric injury caused to the injured person. This section will also be relevant in injury following image-based abuse. In many cases there is also an element in the award of general damages for the indignity, mental suffering, humiliation, distress, or anger caused by such an attack. This is sometimes characterised as aggravated damages, but more properly is injury to feelings and is included in the brackets below. Where the element for injury to feelings has been broken down in reported cases, which is usually where there is significant injury, the range is usually in the region of£18,310 to£30,510 [these figures were then less]. The factors to be taken into account in valuing general damages for the abuse and the psychiatric injury in claims of this nature are as follows: (i) the nature, severity, and duration of the abuse and any physical injuries caused; (ii) the nature and duration of the psychological injury and its effect on the injured person’s ability to cope with life, education, and work; (iii) the effect on the injured person’s ability to sustain personal and sexual relationships; The cases in this section include damages for the sexual and/or physical abuse itself as well as any psychiatric injury caused to the injured person. This section will also be relevant in injury following image-based abuse. In many cases there is also an element in the award of general damages for the indignity, mental suffering, humiliation, distress, or anger caused by such an attack. This is sometimes characterised as aggravated damages, but more properly is injury to feelings and is included in the brackets below. Where the element for injury to feelings has been broken down in reported cases, which is usually where there is significant injury, the range is usually in the region of£18,310 to£30,510 [these figures were then less]. The factors to be taken into account in valuing general damages for the abuse and the psychiatric injury in claims of this nature are as follows: (i) the nature, severity, and duration of the abuse and any physical injuries caused; (ii) the nature and duration of the psychological injury and its effect on the injured person’s ability to cope with life, education, and work; (iii) the effect on the injured person’s ability to sustain personal and sexual relationships; (iv) abuse of trust; (v) the extent to which treatment would be successful; (vi) future vulnerability; (vii) prognosis for psychological injury. Aggravating features which would lead to an additional sum for injury to feelings include: (i) the nature of the abuse; (ii) the level of abuse of trust; (iii) any manipulation following the abuse to stop reporting of the abuse, or to seek to put blame on the injured party; (iv) the need for the injured party to give accounts and evidence of the abuse in criminal or civil proceedings, or in any other relevant investigation… (b) Moderately Severe In these cases the injured person will have suffered serious abuse and/or severe or moderately severe and prolonged psychiatric injury. Cases in this category will not have both serious and prolonged abuse and severe or moderately severe and prolonged psychiatric injury but may have one of those features. At the upper end the abuse will have had serious effects on their ability to cope with education, work, and to sustain personal and sexual relations. There may be elements of false imprisonment. Where, despite the seriousness of the abuse and problems caused, the prognosis is good, the lower end of the bracket is appropriate. (c) Moderate Cases where the abuse is less serious and prolonged and there is a less severe psychological reaction with fewer effects on education, work, or relationships. This bracket also includes cases where there has been a more serious level of abuse, but the psychological reaction is limited and is either resolved or the prognosis is good. There may be some aggravating features.” 87. I have considered the psychiatric report obtained by the claimant, and which included reference to: i) The claimant’s preceding (the assaults) condition of Dystonia, but which left her in a state of vulnerability ii) A paragraph “5.7.1 Following the Index abuse the claimant had suffered with fluctuating depressive symptoms; anxiety; low-self-esteem; a suicide attempt in response to a relationship breakdown; problems with anger control and difficulty with her sexual functioning. The Dystonia had also deteriorated.”