Kimathi & Ors v Foreign & Commonwealth Office

This is an application for permission to appeal made as a matter of urgency in view of on-going litigation before Stewart J. It arises out of Group Litigation brought by Kenyan nationals relating to the State Emergency in Kenya of 1952-1960 who claim they were subjected to torture and rape by British soldiers and members of the Colonial Administration in Kenya for whom the defendant FCO is responsible. Some claimants have been selected as Test Claimants (TCs) and Stewart J has been trying the claim of TC 34, the first such TC to have been chosen. The claim is for trespass to the person which, pursuant to section 11 of the Limitation Act 1980 (“the Act”), has a three-year time limitation period from the time when TC 34 was allegedly assaulted over a period from about 1955 to 1963 when Kenya achieved independence and he was released from detention. The time limit therefore expired sometime in 1966 at the latest but TC 34 did not join the group litigation until 2014. The judge has already held that there was no concealment for the purposes of section 32 of the Act and there has been no appeal from that judgment. For TC 34’s case (and no doubt many others) to get off the ground, however, he needed to ask the judge to disapply the Act pursuant to section 33 which provides:-

“(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 … of the 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.”

The judge has declined to disapply the Act on the basis that, on the evidence, the prejudice to the defendant is such that there cannot be a fair trial and that prejudice outweighs the prejudice to the claimant. TC 34 now seeks permission to appeal against that decision.

The judge declined the defendant’s application to hear the application to disapply the Act as a preliminary point before hearing evidence. He has therefore been hearing submissions and evidence (including the evidence of TC 34) since the trial began on 23^rd May 2016. Having come to the decision to refuse to disapply the Act in the case of TC 34, he has made no further findings on the merits of the case as a whole.

There are 4 proposed grounds of appeal:-

The length and reasons for delay are matters which the court is mandated to take into account pursuant to section 33(3)(a). The judge dealt with them in paras 124-157. In previous proceedings before McCombe J (the Mutua case [2012] EWHC 2678 (QB)) in which the defendant accepted, as against the claimants in that case, that they had been tortured, the claimants had given evidence about the reasons for delay including that they only became aware they could make a claim after being approached by the Kenyan Human Rights Commission (“KHRC”) in 2006 and 2008, that Kenya’s own legislation proscribed any collective organisational meetings of Mau Mau activists until that legislation was repealed in 2003 and that they could not bring themselves to speak openly or privately about what had happened to them. No such evidence was given on behalf of TC34 to Stewart J and he declined to transfer the findings of Mutua to TC 34. Nor did he accept that the pleadings, including in particular TC 34’s Reply (which TC 34 had not confirmed in his evidence), could constitute such evidence. The judge accepted (para 444) that TC 34 was detained until 1963 and could not sensibly have brought any action before that date but, since there was no explanation for the subsequent delay, the 50 year period of delay between 1963 and 2013 was unexplained.

TC 34 submits that the judge found that he was unsophisticated and should have inferred that he was unable to take any sensible view of his legal rights until he was approached by the solicitors offering to act for him. But the judge declined to make that inference without evidence.

In the end, however, the judge (para 483) held that, even if he had concluded there were good reason for delay, the case overall could not be fairly tried. He said:-

“I should add that my decision would have been the same even if I had been able to put into the balance all the reasons for delay which had been pleaded in the Reply, and the others which were the subject of the Claimants’ submissions. These reasons, and others if evidenced, may well also have had an effect in TC 34’s favour under section 33(3)(e) and (f). Nevertheless, the unfairness to the Defendant in defending TC 34’s core allegations would have still outweighed the prejudice to TC 34. Even with those reasons to qualify or temper the prejudice to the Defendant, it would not have been fair and just in all the circumstances to expect the Defendant to meet the claims on the merits.”

The first ground of appeal apparently therefore raises an academic question only, unless it can be said to be arguable that the judge failed adequately or at all to balance the undoubted delay against the prejudice suffered by the defendant.

Mr Myerson QC for TC 34 submitted that the judge had taken an over-technical approach to the question of delay since the matters set out in the Reply “were there verified by a statement of truth” and other claimants (Nos. 1, 10, 19, 22, 24, 25, 26 and 39) had given evidence saying that what they had said in similar terms in their replies was true. There is some force in that submission but if, as the judge said, his decision would have been the same even if he had put into the balance all the reasons for the delay which has been set out in the Reply, that cannot take Mr Myerson far. His main submission was that the judge failed to acknowledge and weigh the strength of the reasons for the delay and the fact that 75,000 Mau Maus had been detained in circumstances in which (as the Government had admitted in the Mutua case) undoubted atrocities had occurred in coming to his conclusions about the balance of prejudice. In Mutua McCombe J had accepted that despite the lengthy delay the actions of the claimants before him should proceed and a settlement had resulted.

I do not think it arguable that there was any such failure on the part of the judge. He was well aware of the Mutua litigation and the cogent reasons given by the claimants in that case not merely for the delay but for showing that their allegations were true (perpetrators, named camps and times of detention were precisely identified). He was also well aware of the 13 principles set out by the Master of the Rolls in Chief Constable of Greater Manchester Police v Carroll [2017] EWCA Civ 1992. Mr Myerson relied in particular on principle 9.

“(9)

The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain at [73]. I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant’s ability to defend the claim.”

But the judge for the purpose of para 483 expressly assumed that he was “able to put into the balance all the reasons for the delay” and therefore proceeded in the assumption that the reasons showed that the delay was excusable. He was not obliged at that stage in a lengthy judgment to say expressly that he had Mutua in mind and was proceeding in accordance with all the principles in Carroll. There is, therefore, nothing in the first proposed ground of appeal.

As I have said, the judge accepted that TC 34 had been detained until 1963 and could not reasonably have brought his action until he was released. Since no reason had been given for failure to bring the action at that date (or soon thereafter), the question of the extent to which the evidence adduced by either party was (or was likely to be) less cogent than if the action had been brought within the three-year period had to be assessed mainly by reference to the delay between 1963 and 2013. The cogency of the evidence is another of the matters which section 33(3) of the Act requires the court to consider in assessing prejudice pursuant to section 33(1).

The judge considered the documentary record in great detail and concluded that there were once documents which were now lost which would or might have been relevant to support or undermine TC 34’s case. At para 191 he explained that there were no existing documents proving or challenging TC 34’s detention, where he was detained (if he was) or when. He also recorded the defendant’s submission that, if such documentation had been available, it could have led to investigations which could have yielded material witnesses. At para 195 he said that the absence of documentary evidence meant that TC 34’s evidence could not be confirmed or undermined, nor could his core allegations be investigated. (The fact that the judge later recorded (para 195) evidence that dossiers were defective does not affect the conclusion that if the court cannot “know what it does not know” (para 201(iv)) there cannot be a fair trial). He not only accepted the defendant’s submission that the court “does not know what it does not know” but also accepted the submission that it was relevant that the defendant was “prejudiced in proving prejudice.”

He then dealt with TC 34’s assertion that the documents which did not exist had been destroyed by the defendant, independently of ordinary weeding processes. He said that that was not supported by the evidence and that it had not been proved that such destruction as had occurred was “irresponsible”. His general conclusion in relation to documents is at para 213:-

“Therefore I find that on the balance of probabilities there were records of detention camp occupancy, DDOs and other contemporaneous documents relating to TC 34 and other TCs, if, as they say, they were detained in camps. What has happened to them and when is not clear. What is clear is that the Defendant has been prejudiced, either because it can show that the documents would probably have been available, or, if not, because the lengthy delay in bringing the claims has deprived it of the opportunity of properly investigating whether some of all of such documents could be made available and, if not, from when they became unavailable. The Defendant has therefore shown that the evidence is less cogent as a result.”

TC 34 seeks to attack this finding by reference to the evidence available to the judge. But it is a finding of fact with which this court would not interfere. It is also said that without a finding about what the documents would have revealed about TC 34, the defendant cannot show prejudice. But if the defendant is prejudiced in being able to show prejudice that, in circumstances of this very old case, is quite enough.

The judge then turned his attention to the witnesses. He set out TC 34’s allegations of beating and other assaults at 5 different locations and that TC 34 said that he knew the name of his assaulter at Gikuni but could not now remember it and never knew the name of his other assaulters. The judge concluded that the passage of time had probably deprived the court of the opportunity of the perpetrator being identified and, in relation to the assaults at places other than Gikuni, the passage of time meant (1) that TC 34’s own recollection as to the timeline, the perpetrators and their uniforms at the locations was adversely affected (2) that the defendant could no longer discover who was working at Nairobi CID at the time and was responsible for questioning TC 34 (3) that the defendant could not now investigate one-off assaults at two of the locations (4) that accounts of regular abuse at the fifth location could have been addressed by officers there if they could have been traced and identified. The judge addressed the allegations of torture and mistreatment at all 5 locations and in respect of each concluded that the passage of time had significantly diminished the opportunity to defend the claim.

TC 34 gave oral evidence; inconsistencies were exposed and relied on by the defendant. Some alleged inconsistencies had not been put to TC 34 but some were e.g. whether he was assaulted at a place called Mwea and he had fair warning of some other inconsistencies before he gave evidence but did not deal with them in his own evidence. The judge said (para 459):-

“The greater accuracy and precision which there would have been if the claim had been brought, say 50 plus years ago, would have assisted the Defendant’s investigation in locating relevant documents and witnesses against which TC 34’s evidence could have been tested.”

He concluded (para 461) that TC 34’s evidence had been rendered significantly less cogent by the delay in issuing the claim. He further held (para 462) that 50 plus years ago, the Defendant potentially could have found documents which could potentially have led to information about TC 34 and to alleged tortfeasors or witnesses or knowledge as to which documents had been kept or destroyed or lost. The lack of documentary and witness evidence itself deprived the defendant from proving specific prejudice. He also said (para 463):-

“In short, the strong probability is that the Defendant would have been in a very substantially better position to defend the core allegations well into the mid-1960s. As time has passed, so the ability to defend has diminished, such that it is now essentially impossible for the Defendant to have any proper opportunity to find documentary or witness evidence with real relevance to the core allegations.”

This is a conclusion amply justified by the evidence recited by the judge and is not a matter with which this court would possibly interfere. The judge then added in para 481:-

“It is difficult, given the loss of witnesses and documents over time, to determine up to when there could have been a fair trial of some or all TC 34’s claims. Had the claim been brought in, say, the 1970s or even later, the evidential position then obtaining would have had to be examined in the sort of detail in which it has now been done. What is clear is that there cannot now be a fair trial of any of the core allegations. That is because of the delay.”

This last paragraph is where the judge addressed the question of the date when the action should have been brought. He said it was difficult to determine and, by inference, that it was academic because if the action had been brought in say the 1970s it would have been the evidential position at that time that would have to be examined. What was crucial was not to consider that point but to consider the position as it is now. I do not see how the judge can be criticised for that. There is therefore nothing in the complaint that the judge did not determine the date when the action should have been brought. The clear implication is that the judge thought the claim could have been brought at any time after release of TC 34 in 1963.

TC 34 says this is wrong because Kenyan proscription of Mau Mau was not lifted until 2003 and that he could not reasonably have brought an action before then. Since the question is when an English action should have been brought, the date of the end of the proscription of Mau Mau is not obviously relevant. Moreover, evidence would be needed of the suggested inhibition caused by the fact that Mau Mau was proscribed up to 2003. In any event, the whole time has to be looked at according to authorities such as Donovan v Gwentoys [1990] 1 WLR 472 and Carroll. There is therefore nothing in Ground 2.

It is incorrect to say that the judge required corroboration or that he unduly limited what he was prepared to accept as cooroboration. The judge said no more than that in the absence of corroboration, the claim was less cogent than it might have been. That is no more than common sense. The real point is that since documents have been lost and potential witnesses cannot be traced, the evidence which would be adduced by either the claimant or the defendant was inevitably and seriously less cogent than if the claim had been brought in time.

It is suggested that the judge made no findings on this question and that he therefore omitted a critical point in his assessment of prejudice. This was, however, always treated as a generic issue not for final decision in relation to TC 34. Paras 232 and 315(iii)(j) show that the judge was aware of the Jack investigation and criticisms made of it. Even if there was a reluctance to investigate all the claims that were being made, that has no relevance to the question of prejudice arising from the problem that an action has been brought so long after the events complained of.

This is unfair to the judge. Speculation was to some extent inevitable but there was no lack of even-handedness. The claimant gave evidence but called no evidence in support of the facts of his claim. The defendant did call a considerable amount of evidence in relation to, for example, the existence of documents, the dates when documents were destroyed (or likely to have been destroyed). A witness who gives evidence about the probability of documentary destruction in the course of weeding or archiving is not speculating but giving evidence as to what probably happened. Paragraphs 201-206 of the judgment furnish a good example of evidence put before the judge and which he assessed in coming to the conclusions already referred to in paras 213 and 459 of the judgment.

The applicant cannot get away from the fact that the judge had a discretion to exercise and that this court will not interfere with that exercise of discretion unless the judge has misdirected himself in law, taken into account irrelevant matters, failed to take account of relevant matters or has made a decision which has exceeded the generous ambit within which reasonable disagreement is possible, see principle 13 in Carroll. That cannot be said of the exercise of discretion in this case by Stewart J who has been trying the issues in this case since 23^rd May 2016. His judgment is a masterly synthesis of the complex web of facts, and absence of fact, and is a judgment with which this court would not interfere. In the event, the application for permission to appeal must be dismissed.

The court is aware that this will be a great disappointment to TC 34 and, no doubt, other claimants also. But if a judge, after a thorough and careful examination of the position, decides in his discretion that a fair trial cannot take place and if that decision cannot realistically be the subject of a full appeal, that decision must be accepted by all concerned. An unfair trial would be the worst of all possible worlds.

I agree.