Kimathi & Ors v Foreign & Commonwealth Office

This is the Court’s ruling in relation to the application made by the Defendant by application notice dated 18 November 2015 asking for an order “directing that the issues of double actionability and limitation be heard and determined as preliminary issues”. In fact, for reasons which I do not need to set out, it is not appropriate at this stage to determine whether to try double actionability as a preliminary issue. The Defendant may/may not renew this part of the application after Easter.

The main evidence in support of the application is a statement from Andrew John Robertson, dated 17 November 2015. Mr Robertson is a Government Legal Department (GLD) lawyer. However, there is material in the third statement of Samantha Howard and the first statement of Anju Lohia, dated 18 November 2015 and 17 November 2015 respectively, which is of relevance to the application in relation to limitation.

While some dates are somewhat fluid in the future progress of this litigation and will be determined having regard to the outcome of this application as well as other outstanding factors, the following can be stated:

The above summary does not set out many other directions, and indeed separate orders, made over the last couple of years with a view to disposing of this case finally as quickly as is possible consistent with the overriding objective.

I do not propose to set out the relevant rules in full. Nevertheless the most important rules are:

In the above case Mr Justice Neuberger (as he then was) dealt with a case listed as a preliminary issue as to whether the Claimant’s claims or any of them were barred by the Limitation Act 1980. He reached a conclusion that it would not be appropriate to determine the preliminary issue. He set out the questions which he said should be asked, at any rate in a case such as that, when considering whether or not to embark on a preliminary issue. He said:

“The first question the court should ask itself is whether the determination of the preliminary issue would dispose of the case or at least one aspect of the case…

Second question…is whether the determination of the preliminary issue could significantly cut down the cost and time involved in pre-trial preparation or in connection with the trial itself…

Thirdly, if… the preliminary issue is an issue of law, the court should ask itself how much effort, if any, will be involved in identifying the relevant facts for the purpose of the preliminary issue. The greater the effort, self-evidently the more questionable the value of ordering a preliminary issue...

Fourthly, if the preliminary issue is an issue of law, to what extent is it to be determined on agreed facts? The more the facts are in dispute, the greater the risk that the law cannot be safely determined until the disputes of fact have been resolved. Indeed, the determination of a preliminary issue, if there are serious disputes of fact, will run a serious risk of being either unsafe or useless. Unsafe because it may be determined on facts which turn out to be incorrect, and this could even risk unfairly prejudicing one of the parties; useless because, having been determined on facts which turn out to be wrong, it would be of no value….

Fifthly, where the facts are not agreed, the court should ask itself to what extent that impinges on the value of a preliminary issue….

…a sixth factor which the Court should at least take into account when considering whether or not to order or to determine a preliminary issue… whether the determination of a preliminary issue may unreasonably fetter either or both parties or, indeed, the Court, in achieving a just result…

Seventhly, the Court should ask itself to what extent there is a risk of the determination of the preliminary issue increasing costs and/or delaying the trial. Plainly, the greater the delay caused by the preliminary issue and the greater any possibility of increase in cost as a result of the preliminary issue, the less desirable it is to order a preliminary issue. However, in this connection, I consider that the Court can take into account the possibility that the determination of the preliminary issue may result in a settlement of some sort. In other cases the court may well decide that, although the determination of a preliminary issue would not result in a settlement, it will result in a substantial cutting down of costs and time….

Eighthly, the Court should ask itself to what extent the determination of the preliminary issue may be irrelevant. Clearly, the more likely it is that the issue will have to be determined by the Court, the more appropriate it can be said to be to have it as a preliminary issue….

Ninthly, the Court should ask itself to what extent is there a risk that the determination of a preliminary issue could lead to an application for the pleadings being amended so as to avoid the consequences of the determination….

Tenthly, the Court should ask itself whether, taking into account all the previous points, it is just to order a preliminary issue. In this connection, it should be mentioned that the nine specific tests overlap to some extent….”

Other guidance was given by David Steele J in McLoughlin v Jones (Footnote: ²) where he said:

“The right approach to preliminary issues should be as follows:

(a)

Only issues which are decisive or potentially decisive should be identified;

(b)

The questions should usually be questions of law.

(c)

They should be decided on the basis of a schedule of agreed or assumed facts;

(d)

They should be triable without significant delay, making full allowance for the implications of a possible appeal;

(e)

Any order should be made by the court following a case management conference.”

There is House of Lords authority that causes of action arising prior to 4 June 1954 are time barred. The Claimants seek to distinguish this. It is agreed that this could be dealt with as a short preliminary issue.

On the pleadings three further issues are raised in relation to limitation, namely:

If the Defendant succeeded on all these 3 limbs of the defence of limitation then that would dispose of the entire case.

As regards date of knowledge, the Claimants’ pleaded case (paragraph 46 of the Amended Generic Particulars of Claim (AGPOC) is that it was only after the decision of Mr Justice McCombe in 2011 in the Mutua case that they had date of knowledge. Whatever the merits of this argument may be, if it stood alone and subject to other considerations, it is something that could properly be tried as a preliminary point after the Test Claimants have given evidence in the summer of 2016. That is common ground. However, whichever way the ruling went, it would not put an end to the case on the issue of limitation.

The second limb of limitation is deliberate concealment under section 32 of the Act. In the AGPOC, paragraph 46, this is based on alleged destruction of documentation by the Defendant at the end of Colonial rule in Kenya. From this it is said that the court should draw the inference that this was likely to be, at least in part, for the purposes of concealing information and not simply to dispose of documents. The Claimants say this was discovered in 2011.

The Defendant’s response on deliberate concealment is that the Claimants have to show that a fact relevant to the right of action has been deliberately concealed rather than the evidence to prove it (Arcadia Group Brands Limited v Visa [2014] EWHC 3561 (Comm)).

Section 32(1)(b) of the 1980 Act requires “Any fact relevant to the Plaintiff’s right of action has been deliberately concealed from him by the Defendant”, so as to stop a period of limitation beginning to run until the concealment has been discovered or could with reasonable diligence have been discovered. The Claimants say that the potential findings in respect of section 32 if heard as a preliminary issue are such that the Claimants may succeed or fail, but there is a third possibility. This is that the concealment alleged is capable of being deliberate concealment under section 32, but whether or not on the facts there was concealment requires detailed consideration of documentary evidence, and this would be a lengthy exercise adding to the costs.

Pausing therefore it seems to me that looking at the first nine points made in the Steele case, it is appropriate to deal with the 1954 time bar, date of knowledge and deliberate concealment as preliminary issues. Though they may not determine the case, it would be sensible to get them out of the way as early as possible. If the Claimants succeeded on section 32, then, strictly, consideration of section 33 would appear to be unnecessary. However, it seems to me that it would be right to continue in those circumstances to continue to hear the case as a whole, for reasons which I detail below in the discussion section relating to section 33. If the possibility arises that I determine that there needs to be further detailed consideration of the facts, then it will be open to me to defer the ruling on section 32 to the end of the litigation.

I remind myself of section 33(1) of the 1980 Act where the decision to be made is whether “it would be equitable to allow an action to proceed” having regard to prejudice to the Claimants and prejudice to the Defendant. In RE vGE (Footnote: ³) the Court of Appeal said this:

“77.

The overriding question is whether in all the circumstances of the case it is “equitable” to allow the action to proceed. “Equitable” means fair; and that means fair to both Claimant and Defendant, not just to the Claimant.

78.

Whether a fair trial can still take place is undoubtedly a very important question. However, it seems to me that if a fair trial cannot take place it is very unlikely to be “equitable” to expect the Defendant to have to meet the claim. But if a fair trial can take place, that is by no means the end of the matter. In other words, I would regard the possibility of a fair trial as being a necessary but not a sufficient condition for the disapplication of the limitation period…In Cain v Francis Smith LJ said at [73]:

“It seems to me that in the exercise of the discretion the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits…””

In KR v Bryn Alyn Community (Holdings) Limited (Footnote: ⁴) a care homes abuse case, the Court of Appeal said at paragraph 74:

“…(vi) Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery….It may not always be feasible or produce savings in time and cost for the parties to deal with the matter by way of preliminary hearing, but a judge should strain to do so wherever possible.”

Also to be born in mind from the KR case is paragraph 19 where, in the circumstances of the case when the judge did not deal with limitation as a preliminary issue, the Court found that “This order of treatment appears to have affected his reasoning on the limitation issues, particularly those under section 33.”

There are therefore particular factors in personal injury limitation cases arising from the words in section 33 “would be equitable to allow an action to proceed”, the strong guidance from the Court of Appeal as to the desirability of dealing with such cases by way of preliminary hearing and the risks of not doing so. Those risks are set out in sub paragraphs vii and viii of paragraph 74 of the KR case. Sub paragraph (vii) states:

“(vii)

Where a judge determines the section 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay.”

In the Mutua case [2012] EWHC 2678 (QB) McCombe J dealt with limitation as a preliminary issue. The bases of the claims are contained in paragraphs 20 – 22 of the judgment. The factual issues which would have arisen at trial are summarised by the judge in paragraph 28. In paragraph 27 it is recorded that, unlike in the present cases, the Defendant admitted that the live Claimants had suffered torture/other mistreatment “at the hands of the Colonial Administrations”. In short the generic issues hinged on the potential liability of the Defendant arising from their role in Kenya and their relationship with the Kenyan Government during the emergency. Two generic issues which arise in the present litigation but did not arise in Mutua are the legitimacy of the conduct of the emergency, particularly policies and implementation of detention and villagisation and liability of the Defendant for somebody who was their alleged servant or agent (particularly British Army soldiers) who caused injury. Apart from the generic issues, the individual claimants are said to have to prove the relevant facts and matters substantiating their alleged mistreatment and the relevant regulations which govern the position.In Mutua, there were no complaints of unlawful detention/villagisation or forced labour. I was taken through the pleadings of Test Claimant 12, who alleges arrest and mistreatment in various prisons and where the Individual Defence avers that there are practically no records which enable the Defendant to deal with the claim. Similar problems of dealing with the claim were exemplified in the case of Test Claimant 39, a villagisation claim. Whether, and if so to what extent there are records which enable the Defendant properly to meet the claims of these and other Claimants is, however, a matter of dispute which is not capable of clear decision at this stage.

There is evidence before me from the GLD (Mr Robertson, Ms Howard and Ms Lohia) which deals in detail with the massive resources which the Defendant has so far committed to obtaining witness evidence. They set out a number of difficulties which the Defendant has had in facing the Claimants’ allegations. For example they arise from a lack of precision about dates, periods and locations in the test cases, difficulty in tracing witnesses, many of whom are dead or unable to assist, and the difficulty in finding contemporary documents relevant to particular allegations.

Before I turn to the Claimants’ case it is to be noted that unusually and because of the stage of the litigation which has been reached, the Defendant’s application is that the preliminary issues be heard after the Test Claimants have given evidence in the summer of 2016. This is because their evidence is already scheduled; they are elderly and should not have to await any preliminary issue determination before their evidence has been heard. Everybody agrees that this timetabling should not be disturbed. Indeed, contrary to Mr Robertson’s witness statement where he said that the issue could be determined on the papers, the Defendant now submits that it is positively advantageous that I hear their evidence first.

The Claimants address the questions raised in the Steele judgment.

First they accept that if the Defendant succeeded on all limbs of the limitation defence then that would end the case.

Secondly, the Claimants submit that a preliminary issue on section 33 would not reduce preparation at all and would reduce trial costs only if the Defendant succeeded. I accept that a very substantial amount of preparation has already been done and is to be done. I am not convinced that a preliminary issue would not reduce preparation at all, but accept that it would reduce it much less than is normally the case when a preliminary issue is heard early and/or the ambit of the dispute more restricted. The Defendant estimates that a limitation hearing would take two to three weeks (in addition to the test Claimants’ evidence). Taking this as a very rough estimate, the trial costs would be substantially reduced if the Defendant succeeded, since, on the estimated timings I have, over six months’ evidence and submissions would be avoided. However, the Claimants submit that, even if the Defendant succeeded, any saving in time would be much more modest and, if the Defendant failed on limitation, the trial would be lengthened. The reasons the Claimants give are:

Thirdly, the Court has to consider how much effort will be involved in identifying the relevant facts for the purpose of the preliminary issues. The facts may be very substantial in this regard, though somewhat less than compared with the facts of a full hearing. Nevertheless, the effort involved in identifying the facts for the s33 issue should not be underestimated. To borrow from what McCombe J said in Mutua:

“No one would, I think, dispute that the present case is not quite like any other that has been before the courts for consideration under section 33.” (Paragraph 10)

The fourth point, namely to what extent are facts agreed, has to be read in the context of the personal injury cases, namely KR and RE. In those cases the Court of Appeal emphasised the test under section 33 and the strong desirability, if feasible, of determining limitation as a preliminary issue whilst making clear to first instance judges the risks of not doing so. This deals with Neuberger J’s fifth point also. A main thrust of the Defendant’s case is that it is not fair and just to ask it to meet this case precisely because of the factual disputes.

Sixthly, would the determination of a preliminary issue possibly unreasonably fetter the parties/the court in achieving a just result? The Defendant has not yet served all its witness evidence. It is therefore, as the Claimants say, not possible to assess the difficulty the Defendant actually faces at this stage. This, however, does not necessarily militate against deciding limitation as a preliminary issue. By the time the preliminary issue came to be heard all the evidence would be in and the court would be in a position to make an assessment which would not fetter the court in achieving a just result. It may be, however, that the Court would be so fettered if the preliminary issue was decided in favour of the Defendant, there was then a successful appeal and the trial had to restart part heard some years on. (See later).

Seventhly, is there a risk of determination of the preliminary issue increasing costs and/or delaying the trial? The Claimants accept that the issue of limitation is plainly going to have to be dealt with by the court and to that extent there is no increased cost. There may be some duplication of time and cost as set out in paragraph 24 above. The delay in completing the overall trial is likely to be modest in the context of the case as a whole. That assumes I rule against the Defendant. If I rule in its favour then the case will finish somewhat earlier and at reduced cost. The extent of these factors is difficult to determine. They would not be insubstantial but may well be much less substantial then the Defendant submits. Again, I deal with the risk of appeal later.

Eighthly, the Court has to ask itself to what extent the determination of the preliminary issue may be irrelevant. It clearly is highly relevant.

Ninthly, is there a risk that the determination of a preliminary issue would lead to an application for pleadings to be amended so as to avoid the consequences of the determination? In Steele the judge referred to the real risk of the Claimant reformulating her claim if he were to determine some or all of the issues of limitation against the Claimant. I cannot see that that has any relevance here.

Tenthly there is the question of overall justice. This must be considered in the light of the overriding objective and other rules to which I have made reference. It also has to be decided in the context of the guidance given by the Court of Appeal in the KR case. Various matters here arise and I deal with them:

This is an extremely difficult decision. I have had due regard to the authorities and in particular the strong guidance given by the Court of Appeal in KR. Assessing the various risks depends on a substantial amount of crystal ball gazing. I have not lost sight of the fact that an early ruling in section 33 (particularly if in the Claimant’s favour) may result in negotiations and settlement. Nevertheless I have come to the clear conclusion that it would not be in accordance with the overriding objective and would not be just in the particular circumstances of this highly unusual case for me to try limitation as a preliminary issue. I have balanced the pros and cons of all the relevant factors put before me as best as I can at this stage of the litigation. I will in due course in the litigation remind myself very strongly of the guidance in KR, paragraph 74(vii) set out earlier in this judgment.

I therefore order: