Kimathi & Ors v The Foreign & Commonwealth Office

On 30 November 2016 (sealed 8 December 2016) Hugh James, Solicitors of Cardiff, issued the following application:

“An order seeking relief from sanctions on behalf of the Claimants and permitting the claims issued under claim number: HQ16X04046 to be added to the court register and joined with the main action…”

In support of the application was the first statement of Simon James Ellis, a partner with Hugh James. This statement is dated 30 November 2016.

Since then there have been further very substantial statements, namely:

A Group Litigation Order (“GLO”) was made on 4 November 2013. By paragraph 6, Tandem Law were appointed the Lead Solicitors for the Claimants. By paragraph 13, no claim was to be added to the register after 30 April 2014 without permission of the Court. This date was extended by Order of 14 March 2014 (paragraph 1) to 30 May 2014.

In May 2014 the Generic Particulars of Claim were served. In October 2014 the Generic Defence was served. In November/December 2014 the Individual Particulars of Claim were served. The major CMCs before me were on 12/13 March 2014, 10/11 December 2014, 18/19 March 2015 and 2/3 March 2016. Other notable dates were:

The trial commenced in May 2016. During June and July 2016 the evidence from the 24 then living Test Claimants was heard. Various applications were dealt with in July/August and September 2016. October 2016 was set aside for (a) preparation for the remainder of the trial and (b) preparation of (other) preliminary issues to be heard in the weeks commencing 7 November 2016 and 14 November 2016. Thereafter the Claimants began to open their case based on the enormous amount of documentation. This was not completed by the end of the Michaelmas term. The Hilary term has been spent hearing expert medical witnesses and lay witnesses from both parties, hearing further applications and completing the Claimants' opening.

Trinity term will be spent hearing a number of the Defendant’s witnesses and the Defendant’s opening case on the relevant documents. It is not expected that the final submissions will finish before spring 2018, after which there will be a substantial period required for writing the judgment.

In summary, it is said that 33 Applicants were some of many Kenyans who instructed GT Law, solicitors, to claim in the GLO. 30 of them have never been on the register and 3 were on the register but were removed (not 2, as Hugh James had thought). In respect of one of the 33, Applicant 14, the application is not proceeded with. This is because the claim was to be one made by the fiancée of the late Michael Wanzuee. However, they never married and it has now become clear that she does not have any capacity in which to bring the claim. There are therefore 32 Applicants before the Court. The remainder of the former GT Law clients are on the register. GT Law went into Administration on 25 November 2015. The Administrator was Quantuma LLP and claims were transferred to IC Law, solicitors. The chronology attached to this judgment is that provided by counsel for the Applicants. Apart from the first two entries namely the date of GLO and the original cut off date for entry onto the register, it sets out the position in some detail from 25 November 2015 to the week commencing 26 February 2017.

The Defendant opposes the application. Tandem Law, the lead solicitors, have taken a neutral stance.

The Applicants accept that they have to make their application under CPR 3.9. This provides:

“(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.”

The principles in the leading case of Denton v White Limited and De Lavaland others [2014] EWCA Civ. 906 are relevant. In paragraph 24 the Court of Appeal said this:

“…A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.”

The Applicants state that the breach by GT Law was serious and significant. Therefore, according to paragraph 28 of Denton, “the second and third stages assume greater importance.”

In paragraph 29 of Denton the Court of Appeal said:

“29.

The second stage cannot be derived from the express wording of rule 3.9(1), but it is nonetheless important particularly where the breach is serious or significant. The court should consider why the failure or default occurred: this is what the court said in Mitchell at para 41.

30.

It would be inappropriate to produce an encyclopaedia of good and bad reasons for a failure to comply with rules, practice directions or court orders. Para 41 of Mitchell gives some examples, but they are no more than examples.”

Paragraph 41 of Mitchell v News Group Newspapers Limited [2013] EWCA Civ. 1537 was cited in paragraph 12 of Denton. In summary if there is a good reason for the default, the court will be likely to decide that relief should be granted. Examples given were if a document was not filed because a party or the solicitor was suffering from debilitating illness or was involved in an accident. On the contrary, overlooking a deadline whether on account of overwork or otherwise was said to be unlikely to be a good reason.

As to the third stage, the Court of Appeal in Denton emphasised that if:-

Finally, I set out some particular extracts from paragraphs 36-38:

“36.

But it is always necessary to have regard to all the circumstances of the case. The factors that are relevant will vary from case to case. As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance.

37.

…[rule 3.9(1)]…“Nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice. If that were the case then we would have, quite impermissibly, rendered compliance an end in itself and one superior to doing justice in any case”.

38.

It seems that some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief. This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach…A more nuanced approach is required as we have explained…But the two factors stated in the rule must always be given particular weight. Anything less will inevitably lead to the court slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate.”

I was also referred to the judgment of Thirlwall J (as she then was) in the PIP Breast Implant Litigation [2014] EWHC 1641 (QB). In that GLO the learned judge refused the application to join claimants 9-10 months after the cut off date in circumstances where the default was due to the failings of the solicitors. I have to exercise caution in relation to that case because (a) it predated the clarification of Rule 3.9 applications give in Denton; (b) the circumstances of each case differ. Nevertheless, what she said in paragraph 17 about the purpose and effect of the GLO in that case has relevance in this case also.

The Applicants rely upon their chronology and other contextual matters in the statements of Mr Ellis. I will set out the principal points. This has to be a reasonably extensive exercise given the criticisms made of the Applicants’ case in Ms Smith’s witness statement.

Mr Ellis’s first statement deals with chronology up until November 2016. His second statement updates matters to 3 February 2017. Ms Smith’s statement of 10 February 2017 then comments upon those two statements. Finally there is Mr Ellis’s third statement which updates the chronology to 10 March 2017 and responds to Ms Smith’s points.

The Applicants are Kenyans, resident in Kenya. Mr Ellis says that they are elderly, in many cases infirm and often live in remote areas without access to good communication facilities. This accords with information from the Test Claimants who gave evidence before me last summer. Mr Ellis does not specifically say that they are illiterate but (a) the majority of claimants and witnesses from Kenya of that age whom I have heard give evidence have been illiterate or barely literate (b) it is noted that in relation to the retainers given to GT Law, at least some of the Applicants apparently “signed” by fingerprint.

All the Applicants are said to have entered into retainers instructing GT Law confirming that they wished GT Law to pursue a claim against the British Government resulting from the activities between 1952 and 1963.

On 9 October 2015 GT Law went into Administration. The claims were transferred to IC Law who are dealing with a number of former GT Law claims. It is not clear how this transfer took place; the Applicants were not apparently aware of it. In paragraph 14 of his first statement Mr Ellis says that despite repeated requests of both IC Law and the Administrator he is unable to confirm precise circumstances or terms of the transfer.

Each of the Applicants has confirmed individually to Hugh James (contrary to some earlier confusion and with one possible isolated exception) that from the date of signing or marking the retainer they heard nothing whatsoever from GT Law or IC Law. They were informed by GT Law during the initial visit that GT Law had accepted their instructions and would progress their claim against the British Government, and that the claim would be taken to court if this was required.

Eventually a number of the Applicants became concerned and contacted a non governmental organisation in Kenya known as the Justice and Environment Foundation (“JEF”). The JEF represents the interests of residents who are old, vulnerable etc. on matters such as Human Rights Advocacy and Legal Support. The JEF contacted Mr Ronald Onyango, a Kenyan National who resides in the UK and is a qualified solicitor in England. His brother, Godfrey Onyango, is secretary of the JEF. Mr Ronald Onyango is an officer of the JEF and is its board chairman. In that capacity he wrote to IC Law on 22 November 2015 asking about the lack of contact and seeking confirmation that claims had been included on the court register and, if not, why not. He also asked for details of the transfer of papers between IC Law and GT Law. He received no response.

Mr Onyango then contacted Hugh James and in December 2015 the JEF arranged a number of public meetings in Kenya. The Applicants attended one of the meetings and confirmed they wished to transfer instructions to Hugh James. They signed forms of authority which were then sent to Hugh James. The Applicants were not the only Claimants to sign and return forms of authority. In total some 341 were sent to them.

On 23 December 2015 Hugh James requested the transfer of 10 files from IC Law. The attached chronology shows that Hugh James chased IC Law by letter, email and telephone call until on 23 March 2016 five files were received. Three further files were received on 6 April 2016. The following day, 7 April 2016, IC Law emailed they had never received the two missing files. These have not been received to date.

On 15 April 2016 Hugh James requested all remaining files held by IC Law. IC Law responded by making a complaint about Hugh James to the Solicitors Regulatory Authority (SRA) regarding the way in which instructions from the former GT Law clients had been received by Hugh James. The SRA requested information from Hugh James on 14 June 2016 which was responded to within a couple of weeks. On 17 October 2016 the SRA confirmed that no action was being taken against Hugh James. IC Law refused to hand over any further files. Hugh James sent a letter to IC Law dated 25 October 2016 and eventually issued Part 8 proceedings for delivery up of 331 files. A date was fixed before the Master on 10 January 2017. On 3 January 2017 the Administrator agreed that IC Law would deliver up the files and the application was adjourned. From 13 January 2017 and over the week following all but 36 of the files were delivered up. Those 36 included the 32 relating to the Applicants. On 16 January 2017 IC Law said they had never been in possession of these files. Notwithstanding this, on 15 February 2017 Hugh James received eight files from IC Law in electronic format. Mr Ellis says that the files were badly organised and difficult to follow. After a considerable time spent working through each document Hugh James were able to link seven of the files to the Applicants. Two of them, Angelica Ngito Solomon (Claimant 32 in the application) and Kasikwa Kinamu Mbuvi (Claimant 33) were Claimants who had been on the register but removed from it. The other five had never been on the register. They are Claimants 7, 10, 11, 16 and 26 in the application.

On 16 March 2016 the first enquiries were made of Tandem Law, the lead solicitors. Hugh James asked them to confirm that the claims of the new Hugh James’ clients were on the register. Tandem Law confirmed that they were for the vast majority but that 31 of the Applicants had never been registered and two had been removed. There is no suggestion of any delay by Tandem Law in responding to Hugh James’ letters. Hugh James checked with IC Law and the Administrator. The Administrator said that as far as it was aware all claims dealt with by IC Law should be on the register.

As far as contact between Hugh James and the Applicants and other Claimants is concerned:

Additionally Mr Ellis says that he has seen copies of GT Law retainers handed over by 30 of the Applicants at JEF meetings which took place prior to the first Hugh James meetings in Kenya in May 2016. He confirms that in all cases the date on the retainers pre-dates 30 April 2014. More recently he obtained instructions from some Applicants to waive privilege and redacted copies of 6 retainers are exhibited to his third statement. After the Defendant’s skeleton was filed, Hugh James wrote to the Defendant on 3 April 2017. In that letter Hugh James said they remained of the view that GT Law’s terms of business and retainers were privileged but they were keen that the Court dealt with the merits of the application. They therefore have taken instructions from a number of clients to disclose full un-redacted copies of those terms of business and retainers. They enclosed un-redacted copies of the six previously redacted retainers adding:

“Whilst we currently only have instructions from a small number of Claimants we can advise that, other than the Claimants personal details, the GT Law ToBs and retainers are identical in all cases.”

Mr Ellis has exhibited Schedules dealing with the nature and categorisation of the claims. As to the nature of the personal claims for physical injury they broadly reflect the claims evidenced by the Test Claimants. The mistreatments include beatings, rape, torture and detention. They are therefore serious allegations.

Taking the cohort of 32 as a whole the claims fall into three categories, namely:

It has only recently become apparent that a number of the remaining 32 Applicants are claiming either wholly or in part as personal representative of the estate of a deceased relative. 13 are estate only claims and 5 are in part estate claims. This, says Mr Ellis, is because the files of papers had not been delivered up and the information was therefore only obtained during meetings in January and February 2017.

Mr Ellis says that the Applicants told Hugh James in the recent meetings that they had instructed GT Law to bring the claims on behalf of the estate of their deceased relative or, where applicable, on their own behalf and also on behalf of the estate.

Because the application was sealed on 8 December 2016, the application was made to join the claims to the register on behalf of the Applicants in their personal capacity only. Permission is now sought to register a claim on behalf of the estates.

As a result of the information recently received Mr Ellis says that he is seeking copies of the death certificate and will, or grant of representation, in respect of the estates. He has instructed a firm of lawyers based in Nairobi to obtain copies of the relevant documents as a matter of urgency.

On 24 November 2016, very shortly before the present application was issued, I handed down judgment in respect of Test Claimant 11. The judgment is at [2016] EWHC 3005 (QB). I struck out that claim as a nullity. The essentials of that decision were:

As matters stand there is no information before the Court as to:

Further and in any event in respect of those claims Ms Smith’s witness statement of 24 March 2017 gives important history of which the Applicants’ solicitors may not have been aware, not having been solicitors involved in this GLO until recently. That history in outline is:

Therefore the application in respect of claims on behalf of the estates of persons who had died prior to the cut off date must be rejected as hopeless.

Of the 18 Applicants remaining there are 17 with a claim for personal injury, and one whose claim would only be for false imprisonment. I have ruled in a very recent application to amend the Generic and Individual Particulars of Claim that false imprisonment is not to be pleaded as a cause of action. Therefore the application for Applicant number 25 must fail on that basis. The basic proposition of the Applicants is that GT Law were in default. This is on the basis that the Applicants have individually confirmed to Mr Ellis that they instructed GT Law before the cut off date and they were entitled to assume that their claim would be entered timeously on the register. In his first statement (paragraph 43) Mr Ellis says “It is still unclear how or why this step was never taken.”

It is instructive to look at the very limited information provided on the few GT Law electronic files which have been received. These show the following:

Therefore in some cases there appears, in the light of the full history, to be a possible justification why those claims are not on the register. Indeed that is the only source of any evidence, apart from the suggested inference of default by GT Law. In others there is, on the very limited information available, a conflict between GT Law’s note and what the Applicants have recently told Hugh James. Finally, a number of the Applicants apparently have a date of birth which does not match their Identity Card. These are numbers 5, 7, 17, 19, 27 and 30. This of itself is not fatal to putting a Claimant on the Register, though it may have undermined GT Law’s confidence in the case.

The following further matters need to be taken into account:

Drawing all these strands together and having regard to paragraph 41 of the Mitchell case (cited in paragraph 12 of Denton) it is not possible for the Court to assume, as the Applicants assert, that it is “clear that the default is entirely that of GT Law and not the Claimants personally.” The above information leads to the conclusion that GT Law may well have been justified in de-registering claims or not entering claims on the register. Further, in the context of some 300 claims properly registered, it is not easy to infer purely on the basis of what the Applicants have told Hugh James in relatively recent times that there was default by GT Law. There may have been, but the evidence is unclear. If GT Law did not keep their clients informed or failed properly to terminate the retainer, that does not mean that they were wrong in not registering them.

I have done my best to set out in some detail on the information available why the default occurred. In summary, I cannot find, even if the Hugh James’ assertions are correct, that there is good reason for the default. Moreover, I am not convinced that the default is due to failings by GT Law. That is a possibility, or a possibility in the case of some of the Applicants, but the evidence is unclear.

What can be said therefore is there was no good reason for the default, whether or not it was caused by solicitors and/or Applicants.

Having reached this point, Denton mandates that the application for relief from sanctions will not automatically fail because the Court will consider “all the circumstances of the case, so as to enable it to deal justly with the application.” I have to give particular weight to the need (a) for litigation to be conducted efficiently and at proportionate cost and (b) to enforce compliance with rules, practice directions and orders. Also (c) the promptness of the application is a relevant circumstance to be weighed in the balance along with all the circumstances. Finally, (d) I have to take into account the seriousness and significance of the breach (stage 1) and any explanation (stage 2). The more serious or significant the breach, the less likely it is that relief will be granted unless there is a good reason for it.

I deal first with (a) and (b):

I now consider (c):

I now turn to factor (d) set out in paragraph 54 above. I repeat that the breach was serious and significant. That makes it less likely that relief will be granted unless there is a good reason for the breach. I have dealt with that second stage in some detail and have found there is no good reason. I have considered above the circumstances of the case and especially those to which I need to give particular weight. All these circumstances have been considered, in accordance with CPR rule 3.9(1) so as to enable the Court “to deal justly with the application”. I have come to the clear conclusion that relief from sanctions should not be granted. There are many factors as set out above which militate against the granting of relief. I add that, while the cut off date in this litigation has not been regarded as a trip wire, as can be seen from the two earlier grants of relief in respect of allowing applications, nevertheless, to quote paragraph 30 of Thirlwall J’s judgment in the PIP Breast Implant Litigation, to grant these applications “would undermine the discipline of this litigation. The cut off date would be rendered meaningless.”

For those reasons the applications are dismissed.