Kimathi & Ors v Foreign And Commonwealth Office

In the passage I have already cited from Cave v Robinson, Jarvis & Rolf (Footnote: ⁶⁴ ) it is clear that the Claimant must prove on the balance of probabilities that some fact relevant to his right of action was concealed from him, either by a positive act of concealment or by a withholding of relevant information; in either case with the intention of concealing the fact or facts in question. Proof of intention, particularly where an omission rather than a positive act is relied on, was said to be “often very difficult” (Footnote: ⁶⁵ ) . Thus there is a clear mental element in deliberate concealment. This does not, however, extend to a requirement that the Defendant knew that the concealed act was relevant to the right of action (Footnote: ⁶⁶ ) . It is also subject to the alternative route provided in section 32(2), if applicable. That sub-section is dealt with below. I now focus on deliberate concealment and the duty to disclose. In The Kriti Palm, Rix LJ reviewed the authorities (Footnote: ⁶⁷ ) and concluded:

“321.

It appears therefore that there must be either active and intentional concealment of a fact relevant to a cause of action, or at least the intentional concealment by omission to speak of a fact relevant to a cause of action which the Defendant knew himself to be under a duty to disclose. There is no decision that anything less than a duty to disclose will suffice in the absence of active concealment.” (Footnote: ⁶⁸ )

Two first instance decisions refer to the test. The first is the Chagos Islanders case (Footnote: ⁶⁹ ) where Ouseley J said that it was clear from Cave’s case:

“That section 32 requires more than a conscious or deliberate decision to withhold information, and more than mere non-disclosure. It requires active concealment, or withholding information which is actively sought, or withholding it when there is some other circumstance which imposes a duty to disclose it. It is possible only to conceal deliberately that which a person knows, not that which he ought to have known. It requires a deliberate breach of duty which is unlikely to be discovered for some time and which is then actively concealed or not disclosed when there was an obligation to disclose.”

The second decision endorses the wider formulation. In Parkin v Alba (Footnote: ⁷⁰ ) Holroyde J (as he then was) accepted, based on Cave’s case, that “concealment may take the form of non-disclosure as well as active concealment.” (Footnote: ⁷¹ )

Finally, in Williams, Mance LJ said at paragraph 29:

“But in many cases there may be no running relationship, and, even where there is, it may not involve any general legal duty to inform the other party of relevant facts. On the face of it, “concealment” in such a context might seem to require active conduct, rather than a mere decision to remain silent-even in circumstances where it would be normal or moral to speak.”

It is clear from the statutory wording that the Defendant must conceal a relevant fact from the Claimant. See also for example Lord Scott in Cave’s case (para 60) referring to the construction of section 32(1)(b) where he said that the Claimant can prove the facts necessary for that sub-section “if he can show that some fact relevant to his right of action has been concealed from him…”. The statutory wording is fortified by the repeated reference of the Defendant’s duty to the Claimant. See again for example Cave’s case, Lord Millett at paragraph 25, Lord Scott at paragraph 60 and Park J in the Williams case at paragraph 14; also Mance LJ in Williams at paragraph 29 as cited above.

In Cave, the House of Lords clarified that in order for there to be a deliberate breach of duty, the Defendant needed to know not only that he was doing the act in question but that he knew the act was a breach. In paragraph 60 Lord Scott said:

“Subsection (2), however, provides an alternative route. The Claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty. If the Claimant can show that the Defendant knew he was committing a breach of duty, or intended to commit the breach of duty – I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach – then, if the circumstances are such that the Claimant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for sub-section (1)(b) purposes…It provides an alternative, and in some cases what may well be an easier, means of establishing the facts necessary to bring the case within section 32(1)(b).” (Footnote: ⁷² )

“Breach of duty” in section 32(2) is not confined to tortious or contractual breach of duty or an equitable or fiduciary duty. It includes any legal wrong-doing of a kind which could possibly be raised in an action to which section 32 applied (Footnote: ⁷³ ) .

In Giles v Rhind Arden LJ, at paragraph 38, said:

“I do not consider that the expression “breach of duty” includes any legal wrongdoing whatsoever. In my judgment there must be a legal wrongdoing of a kind that can properly be raised in action to which s32 applies. I will call this the “wider meaning” of “breach of duty”. Thus, the expression “breach of duty” would not cover legal wrongs which are not justiciable, for example target duties. (Footnote: ⁷⁴ ) ”

Finally, on the construction of section 32(2) is the decision of the Deputy High Court Judge in Brown v Bird and Lovibond (Footnote: ⁷⁵ ) where, in relation to the words “unlikely to be discovered for some time” it was said:

“…I note that the question is posed by the statute in an objective form. The question is not whether Mr Jackson would think his actions might not be discovered for some time, but whether in fact that was unlikely.”

Prior to the commencement of this action, the Defendant was not under any court obligation to disclose any of the documents said to be concealed (or destroyed). Nor is there any evidence that any claimant, or anybody acting on behalf of the claimants, considered, or would have considered had they known all that is now known, taking any proceedings before they in fact did so. There is no evidence that on examination of the content of the Hanslope documents, any fact was discovered that enabled the Claimants to plead causes of action that were not available to them to plead before.

The Claimants submit that this is irrelevant. They put the case in this way on concealment.

I asked what the Defendant might have done in such circumstances so as not to conceal the documents from the Claimants. Mr Myerson suggested that it may have been sufficient to advertise, in an organ such as the Kenyan Gazette, the fact that they had been taken back to the UK.

I reject the Claimants’ submission that the Defendant deliberately concealed relevant facts from the Claimants.

The Claimants sought to rely on s32(2). However, it has no possible relevance. The Claimants’ case is fairly and squarely within s32(1)(b). Mr Myerson says that the Defendant actively and deliberately concealed facts relevant to the right of action. S32(2) is, as Lord Scott said in Cave “an alternative route” (Footnote: ⁸⁰ ) . It does not deal with allegedly concealed torts but the commission of the breach of duty. As was said in Giles v Rhind (Footnote: ⁸¹ ) , the claimant, to rely on s32(2), did not have to show concealment in the s32(1)(b) sense because, if s32(2) applies, the deliberate commission of the breach of duty is enough. Normally the breach of duty is the tort/breach of contract/equitable duty. In Giles it extended to a claim under s423 of the Insolvency Act 1986. It is not the breach of any duty by deliberately concealing/failing to disclose.

Therefore s32(2) has no possible applicability to present claims. The breaches of duty here were the alleged torts which were openly committed on the Claimants at the time and of which they were well aware. As the Judge in Giles said, and the Court of Appeal approved subject to one qualification, “the expression “breach of duty” in s32(2) was merely the “obverse” of the expression “right of action” in s32(1)(b), by which he meant legal wrongdoing of any kind, giving rise to a right of action.

If there has been deliberate concealment by the Defendant from the Claimants of any fact relevant to the Claimant’s right of action then the consequence is as set out in this sub heading.

In Sheldon v Outhwaite (Footnote: ⁸² ) the House of Lords held that these words were wide enough to apply both where the concealment of the relevant fact is contemporaneous with the accrual of the cause of action and when it occurs subsequently. There is no reason to restrict the generality of the words to a contemporaneous concealment. The Defendant in the present case accepted that: “Accordingly, regardless of any time which has begun to run since the cause of action accrued, the limitation clock is stopped at the point of concealment, and begins afresh from zero as if it had never run before when the concealment is discovered (actually or constructively)”.

The Claimants submitted that if s32(1)(b) conditions are fulfilled then, even if the action has become time barred before any concealment, the consequences are that the “period of limitation shall not begin to run” until discovery (actual or constructive) of the concealment. Lord Browne-Wilkinson said in Sheldon (Footnote: ⁸³ ) “time does not begin to run until the concealment is or should be discovered.”

It is necessary, however, to examine the premise upon which the Claimants’ submission is based. As was clear from Sheldon, on the facts in that case: “The accrual of the cause of action does not, of course, depend on knowledge on the part of the plaintiff. There are special provisions in sections 11 to 14 and 14A (inserted by section 1 of the Latent Damage Act 1986) of the Act under which the date of knowledge is relevant. But your Lordships are not concerned with those provisions in this case.” (Footnote: ⁸⁴ )

As I have previously stated, the Claimants in the present case have not disputed that they had the requisite knowledge for the purposes of sections 11/14 Limitation Act, in relation to their personal injury claims, at the time when the injuries are said to have occurred i.e. at the time of the Defendant’s alleged tortious conduct towards them (Footnote: ⁸⁵ ) . Also, if the Claimants had such knowledge, then, on the facts of this case, even if any deliberate concealment by the Defendant had been proven, it was not deliberate concealment of “any fact relevant to the (Claimants’) right of action” from the Claimant. Therefore, this further point does not arise. The situation is simply that expressly referred to in Sheldon:-

These considerations reinforce my conclusions that (a) the narrow construction of “any fact relevant to the (Claimant’s) right of action” must be correct and (b) if the Claimants had the required s11/s14 knowledge at the time the alleged torts occurred, the Limitation clock could not be re-set by the type of concealment alleged by the Claimants. If either of these propositions did not stand, the policy considerations referred to in Arcadia (Footnote: ⁸⁷ ) would be seriously undermined (Footnote: ⁸⁸ ) .

As to constructive discovery i.e. “or could with reasonable diligence have discovered it”, the first point to note is that consideration of constructive knowledge and this provision in section 32(1) does not arise if the Claimant has, or could without the alleged concealment have, pleaded a completed cause of action against the Defendant. This is emphasised by Sir Terence Etherton in the Arcadia case where he said at paragraph 62:

“…what is sufficient knowledge to constitute discovery within section 32(1) depends on the particular facts. More importantly…the point has no relevance to proceedings such as the present ones where a complete cause of action has been pleaded…and it is accepted that no new facts necessary to complete the cause of action have been discovered during the previous six years. I agree with the Defendants’ submission that it is logically inconsistent for the Claimants both to assert that the particulars of claim plead a complete cause of action and cannot be struck out for failing to disclose reasonable grounds for bringing the claim or for otherwise being an abuse of the court’s process and yet also to contend that, for the purposes of the ‘statement of claim’ test, the limitation period has not begun to run because there are concealed relevant facts within section 32(1)(b)….the Claimants’ approach makes the most improbable assumption that the intention of Parliament in enacting section 32(1)(b) was that, even though a victim knows sufficient facts to be able to issue proceedings and plead a complete cause of action, the limitation period will nevertheless not commence until the victim discovered or could with reasonable diligence discover further facts.”

The burden of proof and interpretation of the constructive knowledge provision was dealt with by Millett LJ in Paragon Finance Plc v DB Thakerar and Co (Footnote: ⁸⁹ ) where he said:

“…The question is not whether the Plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take. In this context the length of the applicable period of limitation is irrelevant. In the course of argument May LJ…suggested that the test was how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff and resources and were motivated by a reasonable but not excessive sense of urgency. I respectfully agree.”

In Allison v Horner (Footnote: ⁹⁰ ) the Court of Appeal repeated the Paragon Finance test and what Neuberger LJ had said in Law Society v Sephton and Co, namely, in the words of Aikens LJ in the Allison case (Footnote: ⁹¹ ) “…that it followed from Millett LJ's construction of section 32(1) that there must be an assumption that the Claimant desires to discover whether or not there had been a fraud committed on him. Not to make such an assumption would rob the word “could” in the section of much of its significance. Moreover, the concept of “reasonable diligence” carried with it the notion of a desire to know and, indeed, to investigate.”

In the Chagos Islanders case, although Ouseley J comprehensively rejected, for other reasons, reliance upon section 32 by the Claimant islanders, he recited at paragraph 635 the argument in relation to reasonable diligence that the Chagossians were “uneducated, illiterate, poor, unsophisticated, struggling merely to survive” and said at paragraph 670:

“The contentions in relation to access to legal advice for the ignorant, the struggling, poor, ill-educated and unsophisticated, are in principle relevant. The difficulty is the facts.”

I shall return later in this judgment to constructive discovery. I now consider in some more detail the circumstances of the alleged destruction and concealment.

Apart from the Hanslope documents, which fall to be considered separately, the Claimants’ case is that documents in Appendix B were destroyed by the Defendant. This section deals only with these documents.

There are two separate questions to be addressed in relation to these documents:

As to (i):

There is no direct evidence of any particular documents having been destroyed; or of any particular classes of documents having been destroyed. The starting point for allegations of document destruction is the document entitled “THE DESIGNATION “WATCH”” dated 13 May 1961 (Footnote: ⁹³ ) which stated as follows:

“BASIC PRINCIPLES

3.

The aim, which should be clearly understood as fundamental to the whole exercise, is as follows:-

To ensure that, while leaving as much material as possible for the unimpaired functioning of the succeeding independent Government, and for the proper recording of the past, nothing is made available to individuals now or to that future Government, which may

a.

prejudice the security of the Commonwealth or any friendly state; or

b.

embarrass HMG, the present or any future Kenya Government, or any friendly Government; or

c.

give a political party in power an unfair or improper advantage over an opposition party, by the possession of delicate information liable to be exploited in a party interest; or

d.

endanger a source of intelligence, or render any individual vulnerable to victimisation.

Papers which are inconsistent with this aim are “WATCH” material, and the intention is to segregate and withhold from unauthorised persons whatever cannot without ill effect or impropriety be destroyed.”

It will be seen that the criteria are very broad and there is nothing on their face necessarily to link them with the documents which the Claimants allege the Defendant destroyed.

Therefore the Claimants’ case is:

The Claimants must prove that the documents are in fact missing. The Defendant submits they have not done so.

From the Defendant’s perspective its duty of disclosure was limited. It was not standard disclosure. The Order of 11 December 2014 provided:

“32.

The Defendant shall provide standard disclosure by list…- limited to the following classes of documents:

(a)

Documents that (1) were produced in the period 1 January 1950 to 31 December 1963 and (2) are presently in the possession of the Foreign and Commonwealth Office; and

(b)

Any other documents on which the Defendant relies.”

The Defendant has made extensive searches of documents and has disclosed the documents in the relevant period at present in its possession. The extensive searches have also gone to any other documents upon which the Defendant relies (Footnote: ⁹⁴ ) . In short, the Defendant has searched the disclosure documents in its own possession and in the possession of the MOD and the Cabinet Office. It has also carried out extensive searches of files at The National Archives (TNA), the Kenyan National Archives (KNA), the Baring Family Archive at Durham University, the Imperial War Museum and the Colonial Collections at the Bodleian Library, Oxford. It has also searched legislation in Lincoln’s Inn Library and on Google books. Further, the Defendant says that up to the date of its disclosure deadline, “…Counsel have been instructed to obtain documents on an “even handed” basis. Documents have therefore been selected for relevance, not merely on the basis that they are helpful or unhelpful to the Defendant’s case.” (Footnote: ⁹⁵ )

Nevertheless, the Defendant says that searches of various public archives, in particular the TNA and KNA, have not been exhaustive nor equivalent to the full standard disclosure exercise. Therefore, the Defendant does not know what material may still be available in these public archives so as to deal with the documents in Appendix B.

The Claimants say that the vast majority of the documents in the case are from the UK, either the TNA, Hanslope or private collections or academic or public institutions. The KNA is not computerised or automated. There is no evidence from the Claimants as to the extent or results of their searches. There is no witness statement which gives any basis for the allegations that the documents in Appendix B do not exist. In this regard the Defendant refers to three specific occasions when the Claimants had asserted that documents were missing and/or concealed and these assertions were erroneous (Footnote: ⁹⁶ ) . In addition column 4 of the counter schedule to Appendix B gives further examples as to the availability of material (Footnote: ⁹⁷ ) . The Defendant in summary says it does not know what material may be available in the archives they have searched, much less in other archives such as Syracuse University New York, International Committee of the Red Cross archive (Footnote: ⁹⁸ ) , Kenyan organisations (Footnote: ⁹⁹ ) , libraries worldwide or papers held by former colonial servants or their estates.

The Claimants say that the court can effectively exclude the possibility that allegedly destroyed documents may still exist. They have given standard disclosure. However, standard disclosure requests only a reasonable search of documents within a party’s control (Footnote: ¹⁰⁰ ) . On the evidence available I cannot exclude as a realistic possibility that some of the allegedly destroyed documents still exist. It cannot be put higher than that.

In relation to destruction, the oral submissions substantially limited the Claimants’ case. They then accepted that they cannot prove what was destroyed, save by inference in relation to 2/3 classes of documents (Footnote: ¹⁰¹ ) . These were the Prison Standing Order 1957 documents; also, personal detainee files containing a dossier for each detainee and records of interrogation which may/may not have been kept in the personal detainee files (Footnote: ¹⁰² ) . They also accepted that the knowledge that there was destruction and as to what documents were destroyed is no better now than in 1961-1963. The only point they made was that the Hanslope documents, disclosed in 2011 (Footnote: ¹⁰³ ) may shed light on the contents of what was destroyed. They said that the destroyed documents were relevant to section 32, but that relevance may be limited.

Turning to the example of the Prison Standing Orders 1957 and on the assumption that they applied to detention camps (Footnote: ¹⁰⁴ ) :-

The Defendant points out that the duty to keep those documents was on the officer in charge of a prison. Detention camps were at different times and places under varying types of control. Importantly, there was no requirement to keep the documents centrally, whether in the KNA or elsewhere. There is no direct evidence that any such record was destroyed at all. Nor is it safe to infer that they were destroyed or, if so, by the Colonial Government or the Defendant. Some may still exist for the reasons already given. Some may have been destroyed, or lost, not by the Colonial Government or the Defendant. There was no statutory duty on the new Kenyan government to keep them. It may even be that the individual establishments did not in fact keep such records.

In my judgment there are various possibilities other than that these documents were deliberately destroyed by the Colonial Government or the Defendant. I cannot find on the balance of probabilities that they were so destroyed. This finding should be seen in the context of the evidence generally as to destruction of documents, with which I will deal shortly.

For similar reasons I do not feel able to draw any inference that, on balance of probabilities, the other classes of documents, i.e. the detainee records/records of interrogation were deliberately destroyed by the Colonial Government/Defendant. If they were sent to the central registry in Nairobi, and do not still exist, were they destroyed? Just as there is no evidence of destruction taking place at camps, so also there is no evidence of destruction at the central registry.

I now deal with the second question, namely, even if those documents were destroyed in/about 1961 by the Colonial Government/the Defendant, how does that fit into s32(1)(b)?

Against that background, I now deal in some detail with the factual background to the alleged destruction and concealment.

Apart from two witnesses, Professor Rotberg and Mr Nottingham, there is no witness evidence in relation to destruction of documents. The evidence is based on inference from various documents. I have already commented on the fact that the Defendant’s disclosure duty was limited and was not full standard disclosure. I must be cautious in drawing inferences from documents when (a) I cannot be sure that I have all the relevant documents and (b) those documents I do have are not put into context or explained by a witness.

The Claimants referred to a document dated 10 October 1958 from Mr Dent, the Permanent Secretary for Defence at the Ministry of Defence in Nairobi. This refers to downgrading and destruction of documents. It says that the destruction of classified material does not require the authority of the originating office, since security can only be improved and not endangered by destruction. It continues:

“3.

Officers who authorise the destruction of SECRET papers should be careful not to destroy original material, or material which they have originated, and which may be the only surviving copy, if it is likely to be of historical value.

4.

A record will be kept of all documents destroyed, and when the documents bear an individual number, a destruction certificate will be sent to the office of origin.”

On 9 December 1959 a despatch was sent from the Secretary of State in London to the office administering the government of Kenya. It is clear from paragraph 7 that the despatch was to all people in charge of colonies. Among other things it updates a secret circular despatch of 1950 and requires an annual return of “All Accountable documents” held by the government and a return of “Accountable documents destroyed (if any)”. It also requires the Governor, on ceasing to administer a territory, to hand over all top secret and accountable documents to the officer administering the government.

The above two documents, in isolation, do not assist me in determining the allegation in relation to deliberate concealment from 1961 onwards i.e. the Claimants’ pleaded case. Neither contains anything about passing on documents to a successor government or criteria for selecting and destroying documents. Nor, in isolation and without context, does a letter from F D Corfield dated 21 November 1958 to a Mr Davies at the government office in the Isle of Man. This refers to a long letter from Mr Davies about the “general set up before the Emergency and the part played by the main actor.” I do not have the letter which Mr Davies sent; I do not know whether he asked for it to be regarded as purely personal/confidential. Mr Corfield, who was the Government Commissioner appointed to provide the history of the Mau Mau, promises to burn Mr Davies’ letter eventually and says “It will not find its way onto any file that I leave behind, although I will probably make use of a good deal of background knowledge which you have supplied.” The Claimants are critical on the basis that “there was no sense that the information provided had historical significance and should be kept,” but I have no evidence, nor can I make any finding, as to whether Mr Corfield was acting within or outside any guidance he may have received in his capacity at that time.

Apart from being a Government Commissioner, I do not have evidence of Mr. Corfield’s precise status at the time. Finally, Mr. Corfield said he would not burn the letter immediately, which suggests he had been asked by the author to burn it. In what capacity the author had sent it is not known. What is known is that Mr. Corfield’s letter, evidencing the fact of the other letter, was retained.

There is also reference (paragraph 13 of the Claimants’ written Opening) to destruction of documents in 1959. The documents relating to this are in response to a Savingram from the Colonial Secretary, dated 10 August 1959, seeking information from 8 colonies about their methods of destroying classified documents. This is said to be “with a view to arranging for the Department of Scientific and Industrial Research to undertake research in this field.” The response is of no relevance to the concealment submissions.

In short, there is nothing in any pre-1961 documentation which can be relied upon in support of deliberate concealment.

Paragraph 46A(iii) of the Re-Re-Re-Amended Generic Particulars of Claim relies on the WATCH Policy. Paragraph 46A(i) and (ii) specifically point to the Defendant issuing an instruction from the Colonial Secretary. Paragraph 46A(iii) says that those instructions required the classification of documents “for removal and destruction – the so-called “WATCH documentation”. The Defendant’s document is dated 3 May 1961. It was sent to the office administering the Government of Tanganyika and repeated to the equivalent officers in Uganda, Kenya, Zanzibar and the East Africa High Commission. The central part of the document states as follows:

“Disposal of Classified Records and Accountable Documents.

1.

As you are considering the disposal of classified records and accountable documents, it may be useful if I set out guidance given shortly before the achievement of Independence to Governors of certain territories which are now independent.

2.

The general principles which have been followed in disposing of documents in these circumstances are:-

(i)

There would be no objection to the transfer to the successor Government of secret or lower papers provided that they have been scrutinised and selected by a small committee of, say, a Special Branch Officer and two Senior Administrative Officers to ensure that none are passed on which:-

(a)

might embarrass H.M.G. or other Governments;

(b)

might embarrass members of the police, military forces, public servants or others, e.g. police informers;

(c)

might compromise sources of intelligence information;

(d)

might be used unethically by Ministers in the successor Government.

(ii)

There would be little object in handing over documents which would patently be of no value to the successor Government.”

The letter then goes on to consider how to deal with other documents and how they should be dealt with, including, in some cases, destruction by fire or dumping in the sea.

It is of note from that letter that:

Ten days later there was a document apparently sent to all Provincial Commissioners. This emanates from the Ministry of Defence in Nairobi. It is dated 13 May 1961 and is accompanied by a circular headed “The Designation “WATCH””. It drew a distinction between WATCH material, the designation applying only within Kenya, and other material. WATCH material was to be seen only by authorised officers and would ultimately have to be either destroyed or removed to the UK. Other material was described as “Legacy” material and was to be eventually inherited by an independent government. I have already set out the basic principles of WATCH from paragraph 3 of that document. They are similar, but not identical, to (a)-(d) in paragraph 2 of the Secretary of State’s 3 May 1961 letter.

The circular then contains the following sections:

There were many other provisions, but these I believe are the essential ones.

It is not the case that the policy and the WATCH designation simply followed on from the Secretary of State’s document of 3 May 1961. Documents adduced by the Defendant evidence that Uganda had circularised a memorandum on 28 February 1961 distinguishing Legacy papers from what they called “DG” papers. DG papers were classified similarly to WATCH papers. There were also a number of documents between February and May 1961 showing communication of the Ugandan Policy to Kenya and, as early as (at least) 16 March 1961 drafts of a WATCH Policy in Kenya.

In summary:

Even if there was destruction amounting to s32(1)(b) deliberate concealment based on the WATCH Policy, any finding would have to be subject to the Defendant being vicariously liable for such destruction and acting in right of the UK. This would be a matter then for generic submissions.

The Defendant accepted that any finding of s32(1)(b) of deliberate concealment, based on bringing the Hanslope documents back to the UK, would not be subject to any further argument about vicarious liability/acting in right of the UK.

Returning to the 13 May 1961 WATCH Policy itself:

Therefore, there is nothing in the WATCH Policy document to support that there was intended to be deliberate destruction of documents for the purpose of concealing information, or to give rise to an inference that the reason for destruction of documentation was to conceal the information contained in it.

Of course there are separate considerations when handing over to a new independent government after a period of colonisation, but similar principles to those found in the WATCH document are echoed in the Public Record Office 1962 document (Footnote: ¹⁰⁹ ) . The 1962 Guide:

Therefore, the WATCH Policy was broadly in line with the Public Records Act 1958 and the Guidance, in respecting the need for administrative functioning of the succeeding independent government and the proper recording of the past; whilst destroying documents which did not fulfil either of these functions, and retaining with a WATCH classification those documents which did have importance or antiquity which fell foul of the criteria in paragraph 3(a)-(d).

Some destruction lists survive (Footnote: ¹¹⁴ ) . The dates of these lists are not clear but the one at Caselines Reference 32-73502/73631, relied on by the Claimants, bears the date “March 1962” (Footnote: ¹¹⁵ ) .

Nothing on these lists can be said to be of historical interest and therefore something which should not have been destroyed in accordance with the WATCH Policy (Footnote: ¹¹⁶ ) .

On 6 July 1962 Mr Neil (Footnote: ¹¹⁷ ) sent a memo about secret files which were being kept secure in the basement of the building where he worked. He said:

“The basement is overcrowded and it is essential that a weeding exercise of these files should be carried out as soon as possible and this should be done by fairly senior and sensible officers. The files should be classified as follows:

(a)

Those for destruction (which should constitute the majority);

(b)

Those to be preserved as a Legacy to a successor government; and

(c)

Non-Legacy files which should be, I imagine, very few in number.”

The Claimants criticise this saying that for no discernible reason the files that were to be destroyed “should constitute the majority”. However, it is impossible to infer that there was no actual reason. Maybe the majority would be useless to a successor government and useless for historical purposes. Mr Neil would have known but there is nobody else who has or could give assistance on this. The documents which were to be designated WATCH and preserved as Non-Legacy files, he considered to be “very few in number” and therefore the greater number of those which were to be preserved would be those passed on as Legacy documents to the successor government. No adverse inference can be drawn from this memo.

In September 1962 the Colonial Office issued a document “Protection and Disposal of Classified and Accountable Documents and Records Generally.” It is a document to territories in the transition to self-government. It contains advice similar to that in the 3 May 1961 document and the WATCH policy.

On 8 October 1962 the Colonial Secretary wrote to the Officer administering the government of Kenya enclosing (probably) the September 1962 document. The message states:

“Disposal of Records

You will doubtless shortly wish to consider, in the light of constitutional development, measures which should be taken for the protection and disposal of classified documents. It is clearly desirable that timely arrangements should be made to that and I note from your secret and personal saving gram number 2385 of the 29 September 1961 that a start has already been made on certain records, but I hope that the enclosed note (which follows generally the instructions given to the Governor at Tanganyika in my secret and personal savingram of 3 May 1961, copied to you as number 76) will be of assistance to you in considering the disposal of records generally. If on detailed consideration of the matter in the light of circumstances in Kenya you wish to seek further guidance, I am very ready to give you such assistance as I can…”

As to this:

The Claimants suggest that in any event the WATCH Policy was not followed.

In my judgment, for reasons which will become apparent, the Claimants have not proved what was destroyed, by whom and when.

In this section I will, nevertheless, deal with certain paragraphs in the Claimants’ written Opening which suggest that the Defendant went beyond the WATCH Policy. I shall also deal with certain ancillary matters raised in some paragraphs of that Opening.

Before I do that, I will briefly mention Mr Nottingham’s evidence, which was the subject of a Civil Evidence Act notice. As far as I can tell, the Claimants’ Opening only refers to it to say that by early March 1963 the administration was actively checking whether documents were being destroyed. They mention two letters. The first is from Mr Brown, District Commissioner Nakuru, dated 7 March 1963, to Mr Cumber in the Governor’s office, Nairobi. Mr Brown said that in the bottom of a confidential box he had found a Secret and Personal letter to John Nottingham regarding the destruction of compromising material in personal files. He continued: “there is no record that any action was taken on this. Can you throw any light on the matter?” Mr Cumber replied on 11 March 1963 saying that he never saw the letter and John Nottingham had not drawn his attention to it when he handed over the District “late last August”. He said: “However, if it is the sort of letter which I think it is, I suggest you take action on it”. There is no other document explaining any follow-up (Footnote: ¹¹⁹ ) .

Paragraph 7

Paragraph 8

The Claimants submit that being told by the Chief Secretary that nothing “vital” was being trashed conflicted with being told in the provinces that “critical files were being destroyed.” I am not able to say whether this is in fact a conflict. The quality of the evidence from the provinces is impossible properly to evaluate. It is not clear what level of person(s) spoke to Professor Rotberg, how he (or they) evaluated something as a critical file and, particularly, whether he/they were aware of the policy that copies of important information could be appropriately destroyed if the original or another copy was kept for posterity.

The Claimants also submit that there was a wide-ranging policy of destruction and a culture, sanctioned by an official policy or not, of destruction by the Defendant’s servants or agents. In this regard:

Paragraphs 10 and 11

Paragraph 14

As to the reference to “The Central Registry established by Special Branch to hold records about Mau Mau suspects” never being reviewed:

Further, I heard evidence from Mr Philip Green called by the Defendant. He was transferred to Kenya Special Branch under the control of the Directorate of Intelligence and Security from 1960 to 1964. He was the Senior Desk Officer at Headquarters in Nairobi in 1961 and then was transferred to Central Province where he was Provincial Head of Special Branch until 1963. He said:

Mr Green’s evidence undermines any suggestion that Special Branch destroyed Mau Mau records. It also undermines the 15 March 1963 minutes which suggest that Provincial Special Branch Officers would continue to operate the WATCH system pro-tem. On the basis of this evidence I am not prepared to find that Special Branch destroyed the records they had relating to the Mau Mau. If, and if so when, they were lost is wholly unclear on the evidence.

Paragraph 15-16

As regards the reference to Special Branch having “gone “clean””, this is referred to in a letter from the Director of Intelligence to the Permanent Secretary at the Governor’s Office. The letter is dated 24 May 1963. It states that “With the exception of my own personal office Special Branch is going “clean” with effect from Monday 27 May 1963.” This may be no more than suggestive of the fact that Special Branch had by this stage sorted out that material from Legacy material and dealt with the WATCH material in accordance with instructions.

In paragraph 16 the Claimants state:

“The conversation continued and it is clear that material which was “explosive or dangerous” was destroyed. The test for return to the UK at this stage was absolute necessity. Material concerning villagisation was already an issue which might be “too secret” to retain. Equally a draft memo from the Chief Commissioner in May 1963 complained that destruction was not proceeding appropriately because relevant files had become mixed up with historical records.”

The final letter is a draft from the Chief Commissioner’s Office in May 1963. It states:

“Dear

Provincial and District Records

During his recent visits to Provincial and District Headquarters to examine our historical records, Dick Cashmore came across a number of files which would cause us considerable embarrassment if they fell into the hands of the next government.

The following are typical examples:

(i)

Personal files (classified, confidential or secret) on African political personalities some of whom are now ministers or leaders in the main political party.

(ii)

Interrogation reports on Mau Mau terrorists, lists of loyalists and lists of Mau Mau gangs.

(iii)

Inquest files eg Inquiry into the deaths of the Hola Works Camp detainees.

(iv)

Closed volumes of current secret and confidential files

2.

The fact that such files had been mixed up with our historical records is disturbing, particularly as most of our historical records will be “Legacy” material. I shall be grateful, therefore, if you will take steps to ensure that your Provincial and District Records are thoroughly examined by Expatriate Administrative Officers with the object of removing, and destroying, the sort of material referred to in sub-paragraphs (i) to (iv) above. This work must be completed before Internal Self Government for obvious reasons.

3.

Please destroy this letter when you have noted its contents.”

The Claimants’ submissions are summarised in paragraphs 6-19 of Mr Myerson’s skeleton argument.

The burden of proof for deliberate concealment is on the Claimants. It is for them to show what material documents were destroyed and therefore concealed from the Claimants by the Defendant.

The Claimants say that the destroyed documentation was in the Defendant’s control pursuant to CPR 31.8(2)(b) and (c) and was not specified in the Defendant’s disclosure. Assuming for the moment that in the early 1960s, prior to destruction, such documentation was in the Defendant’s control, this does not advance the Claimants’ concealment case since:

Because documents have not been adduced in evidence, it is likely that they were necessarily, or even probably, destroyed. There is no comprehensive list of destroyed documents, nor anything specifically to link the documents which the Claimants allege were destroyed with either the details or the policy of destruction. The policy of destruction specifically exempted “political records of any importance or antiquity” (Footnote: ¹²⁹ ) . The Colonial Secretary’s Savingram of 3 May 1961 did not, on its face, either require the destruction of all documents which came within the categories at paragraph 2(a)-(d) and which should not be passed on to a successor government; neither did it specifically exempt, as did the WATCH Policy, political records of any importance or antiquity or material “For the proper recording of the past” (Footnote: ¹³⁰ ) . However, the Savingram has not been put into any context; there are two preceding letters (Footnote: ¹³¹ ) which I have not seen.

There are other possibilities as to why documents said to have been destroyed have not been adduced in evidence. Not all archives or possible locations of documents have been searched. There is also the possibility that documents are somewhere in the disclosed documents but have not been adduced (Footnote: ¹³² ) . In any event, documents may have been lost/destroyed by the successor independent government.

In the light of the above, I am not prepared to find on the balance of probabilities that the documents which the Claimants allege were destroyed were in fact destroyed. They may have gone missing for other reasons or they may still be in existence somewhere (Footnote: ¹³³ ) . In this regard I have considered – and reject – the statement made in paragraph 8 of Mr Myerson’s skeleton argument where he says:

“8.

The evidence is that the purpose of destroying documents was to avoid embarrassing D (by making clear the sheer numbers of those unlawfully detained and that punishments were imposed for little or no reason) or displaying racial prejudice (by demonstrating virtually all Kikuyu were detained unless they were declared loyalists). There is thus an inference that the documents destroyed were such documents.”

In paragraphs 15 and 16 of Mr Myerson’s skeleton argument he says that the destroyed documents would have enabled the Claimants to plead the precise dates of their detention and the punishments “for which no authority was given. They would enable the identification of the individuals responsible and provide information as to who employed and controlled the individuals. Instead the Claimants must rely on memory, inference and general facts”. He says that what has happened is that Test Claimants have misremembered dates and then efforts to consider thousands of documents suggested the correct date. The Defendant objected to amendments on the basis that it is too late to correct the date. The amendment was refused on that basis (about which Claimants make no complaint) and therefore the Defendant has profited from the destruction of the material. This point does not have validity for the purposes of section 32 on a number of bases:

Similar considerations apply to the Claimants’ submission that “The factual support for the denial of joint and vicarious liability, again depends on the destruction of documents as would establish the reality.” (Footnote: ¹³⁹ )

In the first Mutua judgment (Footnote: ¹⁴⁰ ) McCombe J explained what the Hanslope documents were and how they had surfaced in 2011. In paragraph 32 he said:

“The evidence served by the claimants in this process, in particular a statement by Professor David Anderson of Oxford University, made reference to his understanding that a number of documents relating to the Emergency had been removed from Kenya before independence in 1963; these were said to be contained in some 300 boxes. Professor Anderson stated that, from his own researches, he was unable to determine what had happened to these documents. As a result further enquiries were made within the defendant’s organisation, including to a division known as the Information Management Group (“IMG”) responsible for a section of records held at a property known as Hanslope Park in Buckinghamshire. An enquiry had been made in that quarter, by officials with conduct of these proceedings on behalf of the defendant, prior to the initial service of the defendant’s evidence with its first tranche of documents in November 2010, but that enquiry had yielded no result. However, on the occasion of his second inquiry, on 17 January 2011, the relevant official within the defendant’s organisation received a telephone call from IMG indicating that what appeared to be the missing 300 boxes had been found…” (Footnote: ¹⁴¹ )

By the time of the second Mutua judgment (Footnote: ¹⁴² ) 40% of the Hanslope material had been inspected by those acting on behalf of the Claimants. The following was reported:

“the new disclosure has only served to confirm the impressions and conclusions that they had expressed in their earlier statements about what they see to be the complicity of the British Army and Government in the infliction of abuses upon detainees…” (Footnote: ¹⁴³ )

“…the Hanslope archive has revealed for the first time a number of documents giving a clearer and more detailed view of the extent of abuses in the camps and what was known about them higher up the chain of administration. Included in the papers are complete minutes of the War Council (on which all the British Commanders in Chief sat), revealing policies on detention, “screening” and interrogation. There are the papers of the Provincial and District Emergency Committees (on which British officers also sat). Significantly, he says, there are the papers and minutes of the Chief Secretary’s Complaints Coordinating Committee, set up in 1954 to monitor and manage serious complaints made against the security forces and local administrators. The period covered by these documents is 1954 to 1959. These records reveal, it is submitted, examples of inadequate investigation and/or prosecution of serious abuses, of which examples were shown to me during the hearing. These papers were routinely sent to the Colonial Office in London. There is also correspondence and minutes passing between Kenya and London relating to abuse of detainees and the development of the so-called “dilution technique.” (Footnote: ¹⁴⁴ )

McCombe J said (Footnote: ¹⁴⁵ ) that the Hanslope material had filled gaps in the parties’ knowledge and understanding and that process was continuing. In paragraphs 113-118 he dealt with ‘Documents’.

Finally, on this matter, the judge said this at paragraph 117:

“the late disclosure of the Hanslope papers did not prevent the commencement of the action, since the work of the historians in the period up to 2005 changed the academic understanding of the period, based on papers already available in the public archives in this country and in Kenya. It seems to me that this was the principal trigger for the initiation of the claims.” (Footnote: ¹⁴⁹ )

I have been taken by both parties through paperwork relevant to the Hanslope documents. There is no dispute but that these documents were sent from Kenya to the UK in 1962-1963. The precise dates are unknown. Nor is it clear precisely what was sent.

On 24 February 2011 a report was sent by Mr Anthony Cary CMG to Professor Salmon, the Chief Historian. The report was headed “The Migrated Archives: What Went Wrong and What Lessons Should We Draw?” A (slightly) redacted form was adduced in evidence. It is 21 pages long together with a short appendix setting out Mr Cary’s terms of reference. The terms of reference record that it had come to light that 294 boxes of records from the former Colonial Government in Kenya were at Hanslope and had been held there since the 1990s and previously at the joint FCO/MOD archives at Hayes. Further, that the Defendant did not declare this material in response to Freedom of Information requests in 2005 and 2006 relating to the Mau Mau with the 2006 response stating specifically that the FCO no longer held any files relating to Mau Mau.

Mr Cary records that the 294 boxes of some 1500 files sent in 1963 included, inter alia, Executive Council minutes from 1939 to 1957, War Council minutes from 1954 to 1961, Council of Ministers’ minutes from 1954 to 1963, Intelligence Committee minutes from 1953 to 1961, and a complete set of Provincial and District Intelligence Summaries from 1953 to 1961. The Acting Governor commented at the time that the last series, in particular, could not be made available to research workers for many years to come, but should nevertheless be preserved because it contained material of historic value.

Between 1963 and 1994 the files were stored at Hayes repository and were moved in 1994 to Hanslope Park to save on storage costs. Although Mr Cary restricted his investigation to the Kenyan files, confusion and uncertainty about the contents of the holdings applied to the migrated archives as a whole.

Mr Cary devotes a number of paragraphs to the question of ownership of the Kenyan files within the migrated archives. In summary:

Mr Cary concludes that over recent years the department had lost collective memory about the contents of the archives. Erroneously, the conviction developed that they were essentially administrative and/or ephemeral, and that substantive papers would be replicated in Colonial Office records already in TNA. This was also the TNA’s view. Since 2006 they had also been stored on a different floor from other historic papers (Footnote: ¹⁵¹ ) .

Mr Cary considers why the Kenya files were not identified at the 2005 and 2006 FOI requests. There is a detailed discussion of this. Mr Cary accepts “that there was no deliberate intention to withhold information.” He attributes the failure, first, to the fact that it had become understood that the migrated archives were unimportant and unsearchable. However that only explained the failure up to a point as “these misapprehensions were only half believed, at least by the more thoughtful and knowledgeable staff. It was perhaps convenient to accept the assurances of predecessors that the migrated archives were administrative and/or ephemeral, and did not need to be consulted for the purposes of FOI requests, while also being conscious of the files as a sort of guilty secret, of uncertain status and in the “too difficult” tray”. Thirdly and, in Mr Cary’s view most importantly, “the drive and initiative about what to do about the migrated archives, seems to have been coming from relatively junior staff. More senior management…appear to have been absent from the field, at least as seen through the patchy records… like senior IMG staff over so many years - their attention was on other priorities, and especially the need to meet annual targets for the review and transfer of files to TNA.”

The remainder of Mr Cary’s report considers why the files were not initially identified for the Mutua case and how to resolve this type of failure in the future. As to the former, I have already recorded McCombe J’s finding (Footnote: ¹⁵² ) that

“Whatever criticism may be levelled at the absence of these papers from the public archive until now, the defendant's failure to disclose them earlier to the Claimants in the course of the proceedings was not in any way a contravention of any requirement of the court rules or in breach of any order of the court.”

I heard evidence from Mr Charles Mochan. He had provided a statement dated 25 May 2017. He had been employed by the Defendant between January 1967 and March 2006. He had been asked to review approximately 300 boxes of files which had been brought to the UK from Kenya, and to consider each file to see whether it contained any sensitive information. He did not recall much about the completion of the task (it being 40 years ago) and considered it routine and quite boring. He did recall that a large number of the files that he reviewed contained sensitive information on the very first page. Where that was the case he did not continue to review the rest of the file. To the best of his memory, all of the files he reviewed contained at least one reference to sensitive information. This all took place in 1980. He reviewed the majority of the documents at Cornwall House, Waterloo but there were a number of documents then stored at the PRO in Hayes.

The first point to note is that there is no allegation that the Hanslope documents were deliberately concealed, or would have been deliberately concealed, had a court at any stage made an order for discovery/disclosure. I have also already decided that there was no deliberate concealment of these documents by the Defendant so as to satisfy the provisions of s32(1)(b).

Did the Hanslope documents contain any fact relevant to the Claimants’ rights of action which could be said to have been deliberately from the Claimants by the Defendant?

In summary the Claimants’ submission (and my responses) on this are:

In paragraph 27 of Mr Myerson QC’s skeleton argument he summarises why he says that the Claimants had facts relevant to their rights of action concealed from them. He says this:

“The analysis of the material found at Hanslope assists Cs in the following ways:

(a)

It provides material upon which a proper view of their claims can be formed.

(b)

It permits the case to be advanced without historians’ evidence.

(c)

It explains the system. That, in turn supports individual accounts of injuries (which D does not admit) and establishes the basis of the liability for those injuries should attach to D.

(d)

It establishes that D’s contention that it would be assisted by missing historical records – and that proceeding into the absence of such records is thus unfair – is very likely to be wrong.

(e)

It thereby permits the court to assess credibility by measuring D’s contentions against the facts.

(f)

It thus establishes – by proving the unlikelihood of it – that D cannot assert its acts were lawful by virtue of the Regulations passed. D did not make this concession until Mr. Mansfield replied to the opening. Until then C’s had to prove it.”

This extract demonstrates the confusion of, on the one hand, the facts relevant to the rights of action and, on the other hand, evidence in support of the facts relevant to the right of action.

In this regard I return to deal as briefly as possible, in relation to the Hanslope documents, to the Claimants’ case that in their claims against this defendant for liability in negligence, joint liability and vicarious liability, facts relevant to the right of action were concealed. The outline of this is set out in paragraphs 77 – 101 of the Claimants’ Opening.

I begin by emphasising what I have already stated in this judgment, namely that the Claimants accept that they had the requisite knowledge for the purposes of sections 11 and 14 of the 1980 Act at the time the alleged personal injury torts occurred. Therefore, time began to run at that point in respect of all alleged torts. Also that they had knowledge of the facts relevant to the non-personal injury torts. Notwithstanding that I shall consider some of the specific points made by the Claimants.

In dealing with negligence, the Claimants accept (Footnote: ¹⁵⁷ ) that there were documents available from the TNA or Cabinet Office which they say:

The Claimants give examples in paragraph 79 of their Opening of the types of documents that they say were concealed as part of Hanslope. These, they say, demonstrate that the Defendant was in a sufficiently proximate relationship to the colonial administration to give rise to a duty of care, was in a position to direct and influence events and took the lead in dealing with difficulties arising as a result of external criticism of acts and events in Kenya. In the Defendant’s skeleton paragraphs 184-187, the documents cited by the Claimants are subject to detailed comment. The Defendant then concludes at paragraph 187 that all of the documents cited in paragraph 79 “Therefore exist elsewhere and/or the information within them was contained elsewhere and/or do not support the proposition alleged.” There is force in the Defendant’s comments. I do not propose to go through each document one by one.

The Claimants submit (Footnote: ¹⁵⁸ ) that the Court will have to assess the extent to which the concealment must be material (Footnote: ¹⁵⁹ ) and the very fact that the Defendant denies the propositions evidenced by the existing documentation is proof that the concealed documents are material. I reject these submissions. First, I reject them as a matter of law. These are not facts within the meaning of section 32. They are evidence. This is apparent on their face. Secondly, the invitation from the Claimants that the court has to assess materiality is an invitation to assess evidence. Essentially, the Claimants concede that a number of non-Hanslope documents do make out the case. It is no part of the court’s function when dealing with the section 32 test to evaluate the weight of differing sources of evidence in support of a “fact relevant to the right of action”. This is precisely the problem which might ensue if the authorities were not followed. Thirdly, I fail to see how it can be said that the Defendant’s denial of a proposition is proof that the concealed material is material for the purposes of section 32. Finally, to the extent that examples are given by the Claimants, they do no more than provide potential supplementary evidential support to that which was available absent the Hanslope documents.

In paragraphs 85-94 of the Claimants’ Opening, joint liability is considered. It is pointed out that the Defendant denies common design and that the Defendant was complicit in a system under which the abuses occurred; finally, the allegation that it authorised the use of unlawful force.

The Claimants then refer to a number of documents, many from the Hanslope files, which they say indicate knowledge that the system was privileging ends over means and provide examples of how involved London were in drafting Kenyan Legislation and what might and might not be done; also documents that showed that the Defendant knew of particular problems, but did not ascertain whether solutions proposed by the administration were relevant to demonstrating the desire to preserve the system. In relation to these documents, a number of them exist elsewhere than in Hanslope or, being telegrams or correspondence, copies would have existed (or perhaps still do exist) amongst UK records. In any event they are evidential only.

It is said that there are incidents that, but for Hanslope, seemingly would not feature at all. The Claimants say that the death of Kabugi Njuna at Aguthi is almost entirely dealt with in Hanslope documents and references are given. The Defendant responds to this by saying that the key facts of that incident are within a public criminal judgment (Footnote: ¹⁶⁰ ) which could not have been concealed. The Hanslope documents are therefore no more than evidence as to internal discussions. That said, some of them appear not to have been concealed/capable of concealment (Footnote: ¹⁶¹ ) . Other documents (Footnote: ¹⁶² ) are of dubious relevance as to any knowledge or control of the Defendant, being either internal Kenyan Government communications or, in respect of Caselines Reference 32-65119, a letter from Mr Gavaghan regarding the incident.

The Claimants further say that all the incidents are cumulative. I reject this and the other submissions for the same reasons essentially as I have given in respect of negligence.

Finally, I turn briefly to vicarious liability. This is denied by the Defendant. The Claimants say that Hanslope documents demonstrate that the Army was directly responsible for London and that Baring, the Governor, would prioritise Erskine’s (the Commander in Chief’s) recommendations. They say that the Defendant was the ultimate source of authority to regulate and ought to have known that violence was widespread and legislation not adhered to. In fact, only three Hanslope documents are referred to in paragraph 96 of the Claimants’ Opening under the vicarious liability section. Two of these (Footnote: ¹⁶³ ) are not from Hanslope, but from TNA. The third (Footnote: ¹⁶⁴ ) is a telegram from the Governor to the Secretary of State in Colonial Office file 822/442.

The above paragraphs also demonstrate that it is not easy to work out which information in the Hanslope documents is to be found elsewhere. Some correspondence between Kenya and the UK is also to be found in Colonial Office files. Telegrams transferred from Kenya to the UK and later stored at Hanslope would have also been received/sent by the UK and therefore would have had UK ‘mirrors’. There is no evidence from either party precisely what is in the TNA, but sometimes documents were sent to London and are available in TNA. These include Complaints Coordinating Committee minutes and War Council minutes. Apart from all the other problems therefore, there are real difficulties in the Claimants establishing that what was found in Hanslope might not be elsewhere. There is no evidence, apart from the possibility of inference. Inferences in this area are unreliable. Without specifics as to which document(s) are in fact relevant to the right of action (there seem to be none), and evidence that any such documents are on the balance of probabilities not held elsewhere, the Claimants’ case factually on section 32 is not proven.

I refer to my previous comments on this and add that, in any event, there is no evidence that:

The Claimants cannot prove either any deliberate concealment by the Defendant within the meaning of section 32(1)(b) and, even if the Claimants could get over that hurdle, that there was deliberate concealment from the Claimants. The date the Claimants’ solicitors first contacted the Defendant in relation to these claims was October 2012. Prior to that, there had been no enquiry by any Test Claimant as to documents the Defendant had in its possession, or any request for disclosure. There was no duty upon the Defendant to disclose any documents to the Claimants before that stage.

Clearly this does not arise given my findings so far. However, had the Claimants succeeded until this stage on the section 32 argument, it would have been on the basis that:

In those circumstances, and if the Claimants had fulfilled the other requirements for section 32, would they have proven that they could not have discovered the deliberate concealment without exceptional measures which they could not reasonably have been expected to take? (Footnote: ¹⁶⁶ )

The factual matrix would have been not only that the Claimants knew that all the torts had been committed against them by the primary perpetrators but also that they believed that it was the fault of the UK Government.

In this regard the following points can be made:

My conclusions are as below:

After this judgment was sent out in draft, the Claimants responded in relation to Paragraph 89 in this way: “This paragraph begins a discussion in which findings of fact are made about the documents allegedly concealed, upon which the Claimants relied for the s32 argument. However, the judgment then makes findings rather wider than this, upon which the Claimants advanced no argument. The Claimants’ primary suggestion is that a further sentence could be added to paragraph 89 at the end to make that clear. It could read: “Insofar as what follows are findings of fact, those findings are particular to this judgment”. An alternative was suggested of amending paragraphs 93, 97, 98, 118, 128, 129, 139, 147 and 149. Those amendments proposed the addition of words which limited findings in those paragraphs to this judgment only and not for the purposes of the case as a whole. The Defendant objected on the basis that the hearing was not an application, as described by the Claimants, but closing submissions on an integral part of the case, that neither party proceeded on the basis that submissions or findings made were for a limited purpose and that such factual findings are final. The Defendant also relied on R (Binyan Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 158, paragraph 4.

I have not amended the judgment. I see force in the Defendant’s submission. However, I have added this note so that, if so advised, the Claimant can raise the matter subsequently and it can be ruled on formally. If this is relevant to final submissions on TC34’s case then it can be heard during the hearing of those submissions which are scheduled to commence on 18 June 2018.

In respect of paragraphs 46A, 46B and 46C, as a matter of generality:

In respect of paragraph 46A:

As to sub-paragraph 46C(c):

Sub-paragraph 46C(d) is denied, for the reasons already given.

Paragraph 93 of the Re-Amended Generic Defence is denied. In particular:

The relevance of paragraph 94 b iii of the Re – Amended Generic Defence is unclear. Paragraph 94biv of the Re - Amended Generic Defence appears to be incomplete.

The phrase adopted in paragraph 94bvi of the Re - Amended Generic Defence, that documents “could not properly be left to an independent government” appears to support the Claimants’ case that documents were deliberately destroyed. Insofar as the documents were either to be transferred to the UK or destroyed, the Claimants aver that the Colonial Government was acting as agent for, or jointly with, the UK Government. That averment is supported by the Defendant’s failure to acknowledge that the instruction was issued by the UK Government or to plead to the consequences of that fact notwithstanding that the issue goes directly to the question of the Defendant’s responsibility for all the acts alleged by the Claimants.

The Re – Amended Generic Defence now pleads that the Watch policy was that of the Colonial government. The effect of the removal of the sentence at paragraph 94 viii (1) is to suggest, without expressly pleading it, that the policy in Kenya was developed separately and without guidance from, the UK government. The Claimants aver:

As to paragraph 96aii, the Claimants note that in 1981 the Defendant sought to deposit the Hanslope Archive in the Public Records Office, by virtue of the Public Record Office Act 1838 the national archive of England, Wales and the United Kingdom Government. It appears, in the premises, that the archive was not then regarded as the property of the Colonial Government. Further, the test for concealment does not depend on “the primary reason”.

Insofar as the Defendant relies upon the factual matters (none of which are admitted) set out in paragraph 96 of the Re - Amended Generic Defence, the Claimants aver that those matters do not assist the Defendant regarding concealment, but merely set out the way in which that concealment was officially described.

Paragraph 96avi of the Re - Amended Generic Defence is not admitted. The Defendant’s belief in the light of the (then) 50-year rule is a matter of evidence.

Paragraph 96avii is denied. the Defendant cannot proceed to draw a conclusion from the Mutua case, given that it denied all allegations therein made and now seek to say that the Mutua case is wholly different to this case.

As to paragraph 48, it is correct that paragraphs 46A, 46B and 46C of the Re-Amended Particulars of Claim were not new to the Claimants’ case but had been pleaded previously. The amendments in paragraphs 94, 95 and 96 of the Re-Amended defence clarify the case advanced by the Defendant and respond to matters raised late, in the Claimants’ amended Opening, after the service of the Amended Defence; they set out the Defendant’s case to be expanded upon in submissions, but are not required as a matter of proper pleading.

As to paragraph 48A, which the Defendant understands responds to paragraph 94 b. ix (7) of the Re-Amended Defence:

As to paragraph 48C, the burden of proof is on the Claimants to prove that the documents do not exist and indeed have been lost or destroyed by either the Defendant and/or the Kenyan Colonial Government. The fact that a document has not been disclosed by one party or the other does not mean that it does not exist. As to whether either party has conducted reasonable searches, that is a matter for submissions.

As to paragraph 52A, and the matters pleaded in paragraphs 96 a., ix. and x. of the Re-Amended Defence:

The identity of almost all individual perpetrators of unlawful assaults on the Claimants. The documentation shows that personal files were destroyed.

Consequently, whether those perpetrators were British, Kenyan European, Kikuyu, or other and the regular army unit or police unit to which they were attached, or whether they were irregular.

The identity of almost all those subjecting the Claimants to forced Labour, or controlling and directing its implementation.

Any documentation demonstrating that the officer in charge was satisfied that the forced labour the Claimants were required to do would assist in bringing the Emergency to an end and the basis upon which the officer was so satisfied, pursuant to r22 EA as amended (711) or some other justification relied on by the person concerned, for example, the labour amounted to no more than customary communal work, or village betterment and conservation.

All records concerning payment for forced labour made pursuant to rr8 and 22 of the Emergency (Detained Persons) Regulations 1954 as amended (792).

Whether records were ever kept of the number of days a detainee was forced to labour, the system for ensuring that such records were accurate, the persons responsible for ensuring that such information (if recorded) was noted and the whereabouts of the records themselves.

Whether anyone was enrolled into the KR pursuant to R2 Emergency (Amendment of Laws) (No 4) Regulations 1953, and the enrolment records of the KR (598).

Whether anyone was enrolled into the KPR pursuant to R2 Emergency (Amendment of Laws) (No 5) Regulations 1953, and the enrolment records of the KPR (599).

Whether any Committees were appointed and heard complaints pursuant to R6 Emergency (Detained Persons) Regulations 1953 and the complaints, and minute books relating to those complaints.

Like particulars as sought under the heading “False Imprisonment” below regarding the Prison Ordinance, absent which detention was unlawful and therefore constituted an assault.

Whether the Commissioner confirmed any sentence of corporal punishment imposed by someone other than himself before it was carried out as required by S88(2) PO and the confirmations.

Whether any rod or cane used for such sentence had been approved by the Member as required by S88(2) PO and all such approvals.

Whether the medical officer examined all prisoners prior to the sentence of corporal punishment being carried out, pursuant to S88(4) PO and all records of examination.

Whether the officer in charge attended each corporal punishment inflicted as required by r20 (21) Prison Rules (514) and the relevant journal entries he was required to make.

Whether there was any discussion regarding the administration of beatings and corporal punishment in villages, and whether they should be subject to the same legal strictures imposed on such activities carried out in detention camps. The relevant documentary record.

Whether any orders were made pursuant to r3 and r4 Emergency (Communal Services) Regulations 1953 (652-3) and all such orders.

How many evacuation orders were made pursuant to r3 Emergency (Control of Nairobi) Regulations (713) and all such orders.

Whether any evacuation orders were continued pursuant to r4 of the Emergency (Control of Nairobi) Regulations 1954 as amended (753)

How many people were arrested pursuant to r2(6) ER as amended (768) and the relevant documentation, including that authorising their detention beyond 24 hours.

How many curfew orders were made pursuant to s64 Police Ordinance 1948 as amended (793) and each such order.

Whether any Tribal Police were appointed pursuant to r4 Tribal Police Ordinance 1958 (852) or r4A (865) and copies of all ministerial approval, notices and declarations.

The identity of the people who screened the Claimants.

The notes made by the screening teams, the evidence they relied upon, if any, and their final reports.

Whether there was any discussion about the legal rules and regulations, if any, governing the conduct of the screening teams, and the relevant documents.

Whether the effect of the infliction of violence during screening on the reliability of the information thereby obtained was ever discussed, the notes of such discussions and the conclusions arrived at.

The legal justification, if any, relied upon for the infliction of violence on the person being screened.

Whether violence was ever inflicted on those being screened merely to satisfy the urge to inflict violence rather than to extract information.

Whether, if so, that fact was reported and, if so, whether the decision to detain any Claimant was influenced by such an event.

Whether the information obtained via screening was ever the subject of an attempt to test it against information obtained from other sources, such as intelligence reports, before determining whether the screening report was a reliable basis upon which to act.

Whether the matters raised in paragraphs 23-27 above were ever raised by the Defendant or the Colonial Administration, the content and outcome of such discussions and the relevant documents.

The identity of all those purporting to extend the lawful detention of any Claimant beyond 24 hours, pursuant to Reg 3(2) of the Emergency Regulations 1952 as amended (704)

The documentation demonstrating that such detention was lawful, under R 3 or 16A,

Whether any orders were made by Provincial Commissioners under the same regulations and the orders made.

Whether any emergency restriction orders were made pursuant to R2A ER as amended and the orders made (588 and 613).

Whether any orders were made by the relevant Executive Member under the R2 Emergency (Forest Area Resident Labourers) Regulations 1953 (576) or as amended (648) delegated under R3 and the orders made.

Whether any labour controlled areas were declared by means of R3 Emergency (Control of Kikuyu Labour) Regulations 1953 and the orders making such declarations (583).

Whether any rules were made pursuant to R4 of those regulations and copies of the rules.

How many movement orders were made under R2 the Emergency (Movement of Kikuyu) Regulations 1953, and the orders made.

Whether any, and if so what, arrangements were made in order for the Governor to perform his obligations under R2(3) of the ER 1952 as amended (609), the records of all appointments, meetings, orders, and documentation.

Whether any, and if so what, arrangements were made in order for the Governor to perform his obligations under R2(5) of ER 1952 as amended (610), the orders made.

Whether any other places of detention were authorised by the Chief Secretary as required by r2(6) EA (as amended) (697) and copies of any authorisations made.

All detention orders made and the documentation establishing that the obligations imposed by R4 Emergency (Detained Persons) Regulations 1953 (634) were performed.

Whether any orders were made declaring a place a Special Detention Camp pursuant to R20 Emergency (Detained Persons) Regulations 1953 and the orders making such declarations and transfers (638).

The Emergency (Detained Persons) Regulations 1953 applied the Prison Ordinance and Prison Rules to all detention camps. Whether every person serving as a prison officer made the declaration in the form required by S7 Prisons Ordinance (357), and copies of the form.

Whether any orders were made pursuant to S16 PO (358) and the orders made.

Whether examinations were made pursuant to S28 PO (360) and the records of examinations.

Whether all people admitted to a detention camp were accompanied by an order of detention pursuant to S45 PO (367) and all such orders.

Whether all people admitted to a detention camp had the relevant particulars recorded pursuant to S48 PO (368) and the relevant documentation.

Whether the Commissioner directed the removal of any person to a different camp pursuant to S54 PO (369) and all such directions.

Whether there was a rest period from 1200-1300 each day during which a meal was served as prescribed by r15(4) Prison Rules 1949 (507).

Whether the sanitation arrangements mandated by r15(14) (508) Prison Rules were kept and the documentation relating thereto.

Whether each new prisoner was seen by the PC (per r2 EA as amended) (p(711) officer in charge or his deputy for the purposes set out in r20(7) Prison Rules (513) and the relevant documentation.

Whether the PC (per r2 EA as amended) (p(711) or officer in charge visited the hospital daily and made the arrangements as prescribed by r20 (11) (513) Prison Rules and the relevant documentation.

Whether the PC (per r2 EA as amended) (p(711) or officer in charge gave any notice of deaths and reported thereon as prescribed by r20(12-13) Prison Rules and the relevant documentation.

Whether each PC (per r2 EA as amended) (p(711) or officer in charge had a book as prescribed in r20(14) Prison rules and the books themselves.

Whether complaints were entered in a detainees record as prescribed by r20(16) Prison Rules (514) and copies of those records.

Whether each camp had an officer in charge, the names thereof and the proof of their appointment.

Whether any PC (per r2 EA as amended) (p(711) or officers in charge kept the journal prescribed by r20(25) Prison Rules (514) and copies of those journals.

Whether any PC (per r2 EA as amended) (p(711) or officer in charge were directed by the Commissioner to keep any of the records set out in r20(28) Prison Rules (515) and copies of those records.

Whether each officer in charge informed each detained person of their right to make representations in writing as prescribed by r5 Emergency (Detained Persons) Regulations 1954, and copies of any relevant documents

Whether any administrative order issued any direction under r4 or a District Commissioner or District Officer issued a direction under r6 the Emergency (Kikuyu, Embu and Meru Villages) Regulations 1956 and all such directions.

How the characterisation of villages as punitive or model was arrived at and the record of such discussions.

Whether a decision to fence a village was taken on a village by village basis, or as a general decision, or in some other way and a record of all such discussions.

Whether there was any consideration to whether villagers would be permitted to leave villages and, if so, the documentary record of such consideration.

The identity of any person issuing a notice entitling him to take possession of property under Reg 15 Emergency Regulations 1952, to the extent that the same is not disclosed.

The notice entitling the person concerned to take possession of property as aforesaid.

The orders releasing property or seizing them, required under R4A (3) and/or the later amendment of such order under R4A(5) ER as amended (558)

The documentation establishing that property was taken possession of pursuant to R13A ER 1952 (562)

Whether any orders were made under R7A Emergency (Movement of Kikuyu) Regulations 1953 as amended (629) and the orders made.

Whether any orders were made under S7 Outlying Districts Ordinance as amended (631) and the orders made.

Whether any orders were made under R22C EA as amended (690) and any orders made.

Whether the colonial administration had accurate maps of each area, setting out the place of each camp, site of forced labour, site where property was taken or destroyed, dispensaries, hospitals, site of police posts, guard posts and police stations, and sites of villages, distinguishing between model and punitive.

Whether there were any discussions arising from the allegations of assault, forced labour, false imprisonment, dealing with the failure to obey customary international law, the international conventions to which the UK was a party (other than those disclosed) and the documentary record of all such discussions.

Whether there was any scrutiny of the emergency regulations and other legislation by the Defendant and the documentary record thereof.

Whether the regulation of screening, its practitioners and its methods was ever discussed and the outcome of such discussions together with the relevant documents.

Whether there was any consideration of the fact that legislation was based on ethnic origin and the documentary record thereof.

Whether there was any discussion about the absence of maps sufficiently detailed to ensure that the whereabouts of detainees and those compelled into villages and forced to labour could be ascertained with certainty.

Whether there are medical records from dispensaries, hospitals, camps and prisons; their whereabouts at any stage and the basis upon which they were destroyed given that they would clearly be of value to a successor government and its citizens.

Whether any steps were taken to ensure that adequate medical records for those detained in prisons, camps and villages were kept; the outcome of any discussions relating to that issue and the relevant documents.

Whether there were any discussions regarding the deliberate omission from, or destruction of, medical records that recorded injuries sustained by detainees in camps or villages in the course of their detention and which they said, or in respect of which it was otherwise believed that such injuries were inflicted by the authorities, whether by order or not.

Whether there were discussions other than those hinted at in the documents, regarding the deliberate undermining of the characters of those reporting the torts upon which the Claimants sue, and the facts they were reporting. The extent of those discussions, the parties involved and the documentary record thereof.

The extent to which the Defendant was involved in such discussions and the part it played.

The decision making process whereby the facts thus reported were disregarded by the Defendant and the factual basis upon which the decisions not to investigate further were taken.

A full set of telegrams from the SoS Colonial Affairs to the Governor.

Whether there were any discussions regarding the ECHR other than those in the bundle and notes of such discussions.

Whether there were any discussions as to the purpose of the Emergency and its continuation and the documentary record thereof.

Whether any certificates were issued pursuant to r3 (4) Indemnity Ordinance 1956 and copies of all such certificates.

Whether any certificates were issued pursuant to S7 Crown Proceedings Ordinance 1956 (809) and copies of all such certificates.

Whether the Defendant had any discussions other than those disclosed about what material had to be destroyed before independence, and the documentary record thereof.

Any views communicated by the Defendant to the administration and/or to Special Branch and/or to the Army as to what was to be destroyed and the documentary record thereof.

Whether the Defendant turned its attention to obtaining an account of their involvement in the Emergency from any member of the Defendant, the Colonial Administration, the Army or the permanent civil service and the outcome of such consideration together with the documentary record.

Whether there was a committee of a special branch officer and 2 senior administrative officers to ensure that no documents were passed on which should not have been passed on (§94 (b) (iv) Amended Defence) and the record of their discussions.

When the decision (communicated to the Kenyan Government) was made that the documents belonged to the UK Government and the basis for that decision, by whom the decision was made and at what level it was taken.

What mistakes were made regarding retention and destruction (paragraph 94x Amended Defence), in relation to what documentation (examples only being pleaded), by whom and why retained documents, which ought to have been destroyed, were then retained by the Defendant.

The extent to which the prejudice for which the Defendant contends arose after the 1990s, until when the Defendant says the concealed documents would not have been publicly available, and the documentation relating thereto.