Kimathi & Ors v Foreign and Commonwealth Office

This is the renewed application by the Claimants in respect of the evidence of the test Claimants in this Group Litigation. The application is:

As to Ground Rules and Special Measures the Defendant accepts that in light of the conclusions of the single joint experts that 31 out of the remaining pool of 32 Claimants require special measures, there should be a ground rules hearing so as to address these measures. It has been agreed that the Claimants should specify with reasons the proposed special measures in respect of the Claimants, so that points for determination of the Court can be narrowed by consensus.

The application for deposition in Kenya and special arrangements for witnesses was before me in March 2015. On the evidence then available I gave a judgment reported at [2015] EWHC 3116 (QB). I do not propose to revisit in any detail the matters of principle which I determined in that judgment. Nor do I propose to set out the background to this litigation so far as it is relevant to the application. It is dealt with in paragraphs 3 – 5 of that judgment. I add only these points:-

Since March 2015 the major developments so far as the Court is concerned are:

In paragraphs 13 – 22 of the March 2015 judgment I dealt with the jurisdiction for taking evidence by deposition in a foreign country and the exercise of the jurisdiction in terms of the Court’s discretion. As regards the mechanics of being permitted to take evidence in Kenya, the requisite formal procedures have not been determined. I shall work on the basis that they could be fulfilled. I am told by evidence on behalf of the Claimants’ solicitors that the principal judge of the Kenyan High Court has agreed to make facilities of that court available to take evidence, including administrative help. Nevertheless, given that many months have passed since the original application, it is a cause of some concern that matters are still in a state of flux and cooperation has not been confirmed in writing.

In terms of evidence I have before me the evidence which was available in March (listed at paragraph 2 of the March 2015 judgment); I also have by way of further evidence:

I start with the Overriding Objective which according to CPR 1.1(1) is to “enable the court to deal with cases justly and at proportionate cost.” In Rule 1.1(2) is a list of factors which are included in how the Court should deal with a case justly and at proportionate cost. Further, the general rule is that witnesses give their evidence orally in public, this being subject to any order of the Court.

When reviewing the authorities in the March 2015 judgment I said that the decision in Barratt v Shaw and Ashton [2001] EWCA Civ. 137, whilst decided in a particular context far away from the present case, “is an important reminder of the general rule in CPR 32.2(1)(a) that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public.”

By CPR 32.3 the Court may allow a witness to give evidence through a video link or by other means. In paragraph 2 of Practice Direction 32 Annex 3 it is stated:

“VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.”

I shall deal with the dispute about particular Claimants later in this judgment. However, there are 32 living Claimants with capacity, 16 of whom are agreed are unfit to attend trial in London. I shall deal with these first. The issue there is should I take the evidence by deposition in Kenya or should they give evidence by video link.

The evidence on security comes from Mr Miller and Mr Daair. I summarised their evidence as at March 2015 in my previous judgment at paragraphs 34 – 51.

In his November 2015 statement Mr Daair says that it remains the case that there is high threat from terrorism, including kidnapping, in Kenya and that Al-Shabaab has continued to be active in Kenya. He refers to the attack which took place in April 2015 at a college where 148 people were killed and other attacks on police vehicles. He says that it remains his view that deposition of witnesses before a High Court Judge “would represent an attractive target for Al-Shabaab and other terrorist groups known to operate in Kenya”. He also says that armoured vehicles are not readily available for hire in Kenya. Certain local security companies offer for hire armoured vehicles up to the BR4 (BR = Ballistic Resistance) level. These do not have undercarriage protection and their glass and armour is resistant to lower ballistic calibre. A recent crack-down on the acquisition of armed vehicles in Kenya has further circumscribed the ability to procure them.

Before I turn to Mr Miller’s evidence, I should mention that the Claimants say that they accept that the presence of a High Court Judge in Kenya does present a risk because of the importance of the office. They further say that President Obama’s recent visit went without a hitch and the Pope is about to visit, this evidencing the fact that proper security can be arranged. These points must be seen in the context (a) that the security provided for President Obama and the Pope is likely to be substantially more than that provided for the Court/Defendant’s legal team; (b) the point I made in paragraph 44 of my previous judgment, which is that the proposed visit is of some 6 – 8 weeks’ duration and that Mr Daair was not aware of other high profile visits of a similar length or scale in recent years, also. This is a point of importance. It should also be mentioned that there are potentially up to 48 other witnesses who may be the subject of a similar application by the Claimants.

I now turn to Mr Miller’s evidence. My summary of his previous evidence is at paragraphs 40 – 42 of the 2015 judgment. In his November 2015 statement he says:

The Claimants ask me to prefer Mr Miller’s evidence and submit that his evidence is that the security situation has improved. They say that there are no additional security risks arising from this being a Mau Mau case and no specific threat is identified. In this regard I must also remind myself of Mr Daair’s first statement of 11 March 2015, particularly at paragraphs 4 – 10. According to Mr Daair the deposition of witnesses before an English High Court Judge would be a very attractive target for Al-Shabaab and other terrorist groups operating in Kenya. Al-Shabaab have previously targeted UK and other western interests, have engaged in high profile attacks in Kenya and were responsible for the kidnap of a British tourist and murder of her husband in Kenya in 2011. He says that members of the Court and the parties’ legal teams would also be subject to increased risks in comparison to the UK due to Nairobi’s elevated crime rates (over 20 British nationals murdered in the last 4 years) and the higher incidence of traffic accidents. Since the Westgate Shopping Mall attack in September 2013 (67 deaths, including 6 British nationals plus wounded) the BHC in Nairobi have reduced UK based staffing levels as a way of reducing risk in the face of the security concerns. The risks and threats can be mitigated but the Judge would likely require secure accommodation, round the clock close protection from two local close protection officers and movements by armoured vehicle – these being standard measures for VIP visitors. Similar security measures would be required for Defendants’ counsel team. Armed close protection is dependent on the capacity and availability of the local police to provide such cover over an extended period and this is limited. Private security personnel cannot carry arms under Kenyan law.

The Defendant says that their central counsel team – its two QCs and two senior juniors (three of whom have young children) – have each indicated that they are unwilling to travel to Kenya for deposition hearings. Their families do not wish them to run the risk identified by Mr Daair.

The Defendant had previously raised the question of Article 2 ECHR being engaged. It does not now seek to argue that, but say that were I to order deposition in Kenya, they would continue to maintain close scrutiny of security situations and may ask the Court to review its decision.

In assessing the risk the Defendant asks me to prefer the evidence of Mr Daair, saying that Mr Miller is the Claimants’ legal agent and was a member of the Kenyan Government Tourism Recovery Strategy Committee (in his March statement he was currently a member of that Committee, Mr Cosgrove-Gibson explains why this may be the case). He is a lawyer not a diplomat or expert in security or counter terrorism. His belief that the Judge’s security arrangements would be the responsibility of high ranking Kenyan security officials is unsupported by evidence and is wrong. Mr Daair’s second statement (paragraph 8) says that while the FCO may consult with Kenyan authorities in relation to its security arrangements (e.g. for high profile UK visitors to Kenya) the FCO ultimately relies on its own security assessments and arrangements.

It is difficult to assess the cogency of disputed evidence on paper. However, the points which the Defendant makes must carry some weight in relation to the experience and knowledge of Mr Miller as compared to that of Mr Daair. Further, and in any event, at the very least it cannot be said that Mr Daair’s evidence and assessment is obviously incorrect. It should therefore be fully taken into account by the Court in making its own assessment.

Broadly speaking, the position in my judgment has not materially changed since the March 2015 judgment. It must be noted that in a different area of Kenya Al-Shabaab killed at least 148 people on 2 April 2015, and more recently attacks have taken place on police vehicles on the road between Garissa and Dadaab. The trend of small scale bomb and grenade attacks in Nairobi and other parts of Kenya in 2014 has continued in 2015 with a number of attacks in the North East and around the Somali border area (Mr Daair’s third statement paragraph 4).

I therefore, without repeating them, refer to and restate my view at paragraphs 49 and 50 of the March 2015 judgment. I also:

Mr Kyle Scott is a law costs draftsman employed by the Claimants’ solicitors. In his statement he sets out the assumptions which he makes. Given that there may be various variations of costs, matters un-costed for and certain other details, I do not propose to conduct a micro-analysis of the costs evidence. Mr Scott’s estimates are based essentially on three possibilities. They are these:

These figures were updated by Martin Tarbuck in his witness statement of 19 November 2015.

The Defendant has filed statements from John Burns who is a legal officer with the Government Legal Department. It is pointed out (in this regard and in others) that the Claimants’ renewed application was issued on 13 November 2015 and contains a great deal of new and highly significant material including (but not limited to) the potential costs of the possible procedural options. Mr Burns’ main points are as follows:

Overall, and not surprisingly, there are substantial disagreements about costs. I have set out above the Claimants’ figures. The Defendant’s equivalent figures (save re iii) are:

Whilst on any basis the costs are very substantial, these must be seen in the context of the litigation as a whole. As an extremely broad “ball park” figure, the costs and potential damages are estimated potentially to be in excess of £100 million. I therefore do not regard the difference in costs (which is difficult to evaluate at this stage) as being a factor of very substantial weight in my decision, though it does have some weight. It is also impossible for me, without having spent a great deal further time in court analysing each dispute in detail (and even then with uncertainty as to the ultimate clarity) to come to any firm conclusions, though I am certainly not persuaded that option (i) would engender savings, my inferences being to the contrary.

I add that the Claimants submit that the parties ought to bear the costs equally, “certainly to the extent that the Court imposes any disproportionate solutions to taking Claimants’ evidence.” In my judgment this is a misguided submission. The Claimants have brought this case. The Court has to determine, in accordance with the Overriding Objective, how best to manage this litigation. However that is achieved, this is not something which at this stage should be borne equally. If the Claimants succeed they will recover their reasonable costs, including the reasonable costs of taking the evidence by video link. The Court is not, whatever conclusion it comes to, imposing a “disproportionate solution” as it was referred to in the Claimants’ skeleton argument. It is complying with the Overriding Objective. In that context it is making the appropriate just assessment of how best to achieve a fair trial. Further, it must not be forgotten:

In relation to those Claimants who cannot come to England, I have discussed above the principles, the security issues and the costs issues. The alternatives essentially are deposition in Kenya or evidence by video link to England.

There are various other matters which must be set out, namely:

Returning to the Overriding Objective, the Court has to deal with the case justly and at proportionate cost. I have already said that the “proportionate cost” factors are of modest weight in this balancing exercise. Looking at the particular factors in CPR1.1(2) the important one in favour of the Claimants’ application is to ensure (so far as practicable) that the parties are on an equal footing and that the case is dealt with expeditiously and fairly. It is important to note firstly that the factors in Rule 1.1(2) are specific matters which are included in the requirements to deal with a case justly (and at proportionate cost) and secondly that they are qualified by the words “so far as is practicable”. Taking into account all the points which the Claimants have made, I have come to the clear conclusion in respect of those Claimants who cannot come to England that their evidence will have to be given by video link. I am not prepared to seek to impose real security risks and massive disruption on the lives of the professionals involved in the litigation, coupled with the practical considerations outlined in paragraphs 19 – 21 of Mr Murphy’s fourth statement. A fair trial is possible with video link evidence. In the light of the evidence, the Defendant’s counsel are entitled in my judgment to say that they would not be prepared to take the risks of travel to Kenya. I am afraid I regard the Claimants’ submission that the Defendant’s lawyers can stay in England when the Court, the Claimants’ lawyers and the witnesses are in Kenya, to be misplaced. That would be much less likely to achieve a fair trial than video link evidence.

In short, and in accordance with the Overriding Objective, evidence will not be taken by deposition in Kenya. To the extent necessary it will be taken by video link. There are 16 Claimants who are not fit to travel and they come into this category.

I now consider those Claimants where there is a dispute as to whether they should come to England or, in the light of my ruling, give evidence by video link. These fall into 3 groups.

The issue with the disputed Claimants, given my decision that the Court is not prepared to order the taking of depositions in Kenya, is that the choice is between:

The joint medical experts examined the test Claimants in July/August 2015. They then reported and there were Part 35 questions which have been answered by the experts. Question 3 of the initial agreed questions was as follows:

“3.

If in your view this claimant even with special measures in place is prevented from attending or giving proper evidence, via an interpreter, at the trial of his or her claim in London:

a…

b.

Is this Claimant likely to be able to give proper evidence, via an interpreter, by medium of live video link between Kenya and London?

c.

If not, are there special measures that would be likely to be affective to enable this Claimant to give evidence of good quality by video link? What would be the minimum provision in your view?”

In Ms Greatorex’s statement she says that out of the 32 test case Claimants who were examined 14 were deemed by the medical experts as being capable of travel to the UK for the purpose of giving evidence. She says that since 3 months had passed since they were medically examined, the Claimants’ solicitors asked the 14 whether they were willing to and were in a position to attend the UK to give evidence. The result of these enquiries was that 9 of the 14 are willing to travel. She sets out the names of those Claimants in paragraph 5 of her statement.

I start with the first group of 9 Claimants, the names of whom are set out in paragraph 5 of Ms Greatorex’s statement. These are the ones who are capable of travel to England and are content to come to the UK. The Claimants’ submission is that it is nevertheless better for the Claimants to give their evidence by way of video link. I have accepted previously in this judgment that video link evidence is second best to oral evidence given live. Further, I have noted the normal rule that evidence should be given in Court in the UK in proceedings brought here. The Claimants’ submission is that, despite this, the best evidence would be given by video link from Kenya so as to avoid the culture shock, possible disorientation and disruption of travelling to London in circumstances where the Claimants do not speak the language. It is said that there is a risk that they would not cope well with the process. An example was given here in respect of Mugo Muhura. He is well enough to travel to the UK if required, but it is said that given his age it may be considered preferable to avoid the flight and logistics of travel to the UK. Any traveller of the Claimant’s age would experience discomfort travelling to the UK especially in economy class. I have concluded that there is nothing in any of these nine Claimants which inhibits their coming to London or which would significantly diminish the quality of their evidence by coming to London. There is nothing in the Toolkits which supports this; nor, again, do I regard it as self-evident. In my judgment the advantages of their giving evidence in the UK far outweigh any possible disadvantages because (a) of the disadvantages of video link compared with live evidence; (b) the advantage of having a cohort of witnesses giving live evidence when a number will be appearing by video link.

The second group comprises two Claimants where the parties disagree whether they are fit to travel to the UK. These are Elizabeth M’Mutiga and Mugo Muhura.

As regards Elizabeth M’Mutiga, she was examined by thephysician, Miss McGuinness and the psychiatrist, Professor Mezey. This Claimant was born between 1925 and 1930. The following are extracts from the medical witnesses:

There is a witness statement by a Mr Peter Wena, dated 9 November 2015. He is an advocate of the High Court of Kenya whose firm is the Kenyan agent for Tandem Law, the lead solicitors in this litigation. He received instructions to find out the locations from which the test case Claimants would prefer to give evidence. He attached a summary of their responses in the exhibit to his statement. Mrs M’Mutiga apparently said that travelling for her was a bit hectic and therefore she would not wish to travel because of her health.

As regards the second disputed Claimant, Mr Muhura, the medical evidence is:

I have to balance the competing factors here. Although it is true that in respect of neither Mrs M’Mutiga nor Mr Muhura do the doctors rule out travel to the UK, nevertheless it is clear that there are some concerns which are attested to by the medical witnesses. In those circumstances I am not prepared to require these Claimants to come to London. If they prefer to give evidence by video link from Kenya then they are permitted to do so. If, given my ruling that evidence will not be taken in Kenya, they prefer to come to London then that is their choice.

The final group are those who, according to the doctors, are medically fit but who have given responses to Mr Wena indicating their preferred location to be Nairobi and giving their reasons. These are:

In relation to these Claimants, the Defendant’s comments are:

On the present evidence I see no reason, apart from a perhaps understandable reluctance, why these five Claimants should not come to London. For the same reasons as with the Group 1 Claimants, I do not permit their evidence to be given by video link. If they wish to continue as test Claimants, they must attend trial in London. Of course if the medical situation changes then I will reconsider.

In summary:

Mr Myerson QC submitted that this application is a case management issue which accords a wide discretion to the Court. I agree. I have listened carefully to the submissions and, for the reasons I have given, have exercised that discretion in accordance with the Overriding Objective.