James Counsell KC and Olinga Tahzib to appear tomorrow in Court of Appeal in controversial Denton issue

James Counsell KC and Olinga Tahzib will appear in the Court of Appeal tomorrow (13 July 2023) in the case of FXF v (1) English Karate Federation Ltd, (2) David Jonathan Donovan

James and Olinga act for the Claimant (referred to as ‘FXF’ to protect her anonymity) – a highly successful karate athlete – who brings a claim for personal injury arising out of sexual abuse by her karate coach between 2008 and 2014. The Claimant claims that the two Defendants are vicarious liable for the abuse she suffered and directly liable for failing to discharge their own duty of care towards her.

The hearing before the Court of Appeal has arisen as a result of an important procedural issue:

The Second Defendant failed to file a defence on time, which enabled the Claimant to obtain default judgment. The Second Defendant applied to set aside that default judgment. In December 2021, the matter came before Master Thornett who, having heard submissions in the course of a contested hearing, agreed to set the default judgment aside.

It is the Claimant’s case that the Master failed to apply the correct test to the exercise of his discretion in that he failed to recognise that the application to set aside default judgment under CPR 13.3 amounted to a relief from sanctions application under CPR 3.9, with the result that the Master was obliged to apply the test in Denton v TH White [2014] 1 WLR 3296.

In view of some conflicting authorities on the issue at High Court level, the Claimant obtained permission to appeal directly to the Court of Appeal.

The Court of Appeal’s decision is likely to set an important precedent as to the applicability of CPR 3.9, and thus the well-known test in Denton v TH White [2014] 1 WLR 3296, to applications to set aside default judgment under CPR 13.3

Watch the Court of Appeal hearing

The matter will be heard tomorrow from 10.30am in Court 71 by the Master of the Rolls, Lady Justice Nicola Davies and Lord Justice Birss.

The hearing will be live streamed. A link to the live stream can be found here.

Find out more

James Counsell KC is widely recognised in the fields of Clinical and Professional Negligence, Personal Injury, regulatory and disciplinary hearings and Financial Services claims, both in the UK and abroad, acting both for claimants and for defendants. He also specialises in acting for survivors of non-recent sexual abuse, having recently acted as lead counsel (leading Benjamin Bradley) in two claims against the Jehovah’s Witness organisation, the second of which has just been heard in the Supreme Court and numerous claimants in cases against football clubs and other sporting bodies, religious and educational organisations and the Scout Association.

Olinga Tahzib is a civil practitioner specialising in personal injury, clinical negligence and employment disputes. He is ranked as a rising star by Legal 500 across all three areas. In his personal injury and clinical negligence work, Olinga increasingly acts for individuals who have suffered life-changing injuries. His current caseload includes acting unled in what is likely to be a 7-figure claim for a claimant who has been rendered paraplegic following a wound infection which was improperly treated.

To find out more about James or Olinga, contact Paul Barton (0207 427 4907) or Chris Rowe (0207 427 4911) for a confidential discussion.

News 12 Jul, 2023