Kenyan “Mau Mau” claim dismissed: Fair trial not possible because of half century delay

6 August 2018 by Jo Moore

article-0-0B84CC4D00000578-861_634x400Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) read judgment 

Stewart J has dismissed the first test case in this group litigation, in which over 40,000 Kenyans bring claims for damages against the UK Foreign & Commonwealth Office, alleging abuse during the Kenyan Emergency of the 1950s and early 1960s.

The mammoth hearing lasted 223 days, and the judgment accordingly runs to nearly 500 paragraphs. The decision turns on whether the judge should allow the claim to be heard over 50 years after the primary deadline expired.

In personal injury claims, section 33 of the Limitation Act 1980 provides that in certain circumstances, a claim which would otherwise be out of time (“statute-barred”) can nevertheless be heard. The court has a discretion to disapply the usual three-year time limit where it is equitable. This involves balancing the prejudice to the defendant of facing a late claim against the prejudice the claimant will suffer if the claim is statute-barred.

In this test case, Stewart J determined that it would not be equitable to extend time in the claimant’s favour. The severe effects of the passage of time on the defendant’s ability to defend the claim was a crucial factor, particularly due to the depleted cogency of the evidence available, as were the lack of good reasons for the delay, and the very substantial length of the delay itself. This carefully reasoned judgment will provide detailed guidance for the trial of ‘stale’ claims.

References in square brackets are to paragraphs in the judgment.

The Background

The case concerns allegations of abuse for which the UK Government (the Foreign and Commonwealth Office) were said to be liable and relates to events within the former Colony and Protectorate of Kenya. (References in square brackets are to paragraphs in the judgment).

On 20 October 1952, then Governor of Kenya, Sir Evelyn Baring, declared a “State of Emergency” in response to “campaign of terrorism” causing “disorder and lawlessness” throughout the colony, attributed to insurgents known as the Mau Mau. The State of Emergency ended on 12 January 1960 [6-7].

The test claimant, subject to an anonymity order, is referred to as “TC34”. His claims relate to allegations of abuse throughout the Emergency period, including interrogation and torture following arrest; detention in poor conditions without conviction, forced labour, denial of medical treatment and assault [29].

The Limitation Act 1980 provides time limits for bringing claims. Personal injury claims must be brought within 3 years of the date the cause of action accrued (usually the date of injury) or if later the date of knowledge (s.11).

The alleged causes of action in this case accrued around the 1950s. Even for test claimants who were minors when the alleged acts took place, time ran from when they were 18 (in the late ‘50s or the ‘60s). As such, the claims were around 50 years out of time when the claim form was issued on 28 March 2013.

Section 33 provides an exception to the 3-year time bar.  The Court must decide whether it would be equitable to allow the action to proceed having regard to the degree to which (a) the limitation period prejudices the claimant and (b) waiving the limitation period would prejudice the defendant. The Court must have regard to “all the circumstances of the case” and in particular to matters set out in subsections 33(3)(a)-(f) – which are (I paraphrase):

(a)    the length of and reasons for the claimant’s delay;

(b)    the effect of the delay on the cogency of either party’s evidence;

(c)    the conduct of the defendant;

(d)    the duration of any disability of the claimant arising after the date the cause of action accrued;

(e)    whether the claimant acted promptly and reasonably when he knew he might have a claim;

(f)    any steps the claimant took to obtain medical, legal or other expert advice and the nature of any such advice received.

A decision on s. 33 may be made before the substantive hearing. However, Stewart J ruled in March 2016 that limitation should not be heard as a preliminary issue in this case: [2016] EWHC 600 (QB). TC34 had given his evidence, been cross-examined, and the Court had heard from many other witnesses and seen considerable documentary evidence when considering the limitation issue.

Mutua and others v the Foreign and Commonwealth Office

This is not the first time the Kenyan Emergency has been considered by the courts (or indeed by this blog: see here for our coverage). In 2012 the High Court considered s. 33 as a preliminary issue in a claim brought by five Kenyan claimants alleging Emergency-era torture and other ill-treatment said to be attributable to the FCO. McCombe J (as he then was) ruled that the claims were not time-barred .

There followed a settlement in respect of 5,228 claimants and a statement in Parliament made by William Hague, then Foreign Secretary. The Government denied liability for the actions of the colonial administration, however the statement was official recognition by the Government that:

…Kenyans were subject to torture and other forms of ill treatment at the hands of the colonial administration. The British government sincerely regrets that these abuses took place, and that they marred Kenya’s progress towards independence. Torture and ill treatment are abhorrent violations of human dignity which we unreservedly condemn.

So why is the present case any different?

Stewart J addresses this at [16]. Notably Mutua was not a group litigation, and the allegations were much narrower than in the present case. Most crucially, the FCO did not dispute that the identified claimants in Mutua had suffered torture and other mistreatment at the hands of the Colonial Administration. The issue was the legal responsibility of the British Government for those acts. The present case is entirely different; the FCO did not accept TC34’s version of events but effectively said that it could not advance a positive defence, primarily due to the passage of time.

Not an inquiry or historical seminar

As the judgment emphasised, this litigation is a court process in a civil claim. It is not a public inquiry [20]. The parties accepted, and the Court emphasised, that despite the factual admissions and settlement which proceeded it, “the claims must stand or fall on established principles of civil litigation.”  [21]

TC34’s case and the s.33 issues

Stewart J distilled the following principles from the jurisprudence at [112]:

The central question is … whether it would be “equitable to allow an action to proceed”, having regard to prejudice to the Claimant and prejudice to the Defendant. Whether a fair trial can still take place is a very important question”. (see McDonnell v Walker [2009] EWCA Civ 1257 §21 

The basic question is whether it is fair and just in all circumstances to expect the Defendant to meet the claim on the merits notwithstanding the delay in commencement.” (see Cain v Francis [2008] EWCA Civ 1451 §73 ; Hartley v Birmingham City Council [1992] 1 WLR 968, pg 980; McDonnell v Walker §21-22) 

Prejudice to the Defendant involves asking whether the Defendant has been disadvantaged in the investigation of the claim and/or the assembly of the evidence in respect of issues of both liability and quantum”(see Cain v Francis §73).

Stewart J at [115] also drew from the list of 13 general principles identified by the Master of the Rolls in Chief Constable of Greater Manchester Police v Carroll [2017] EWCA Civ 1992 at §42.

The Master of the Rolls’ 5th principle is that while the burden is on the claimant to show it would be equitable to disapply the statute, the evidential burden of showing that the evidence adduced by the defendant is less cogent due to the delay is on the defendant (Burgin v Sheffield City Council [2015] EWCA Civ 482 §23 . Stewart J noted that this factor “must be at the forefront of the Court’s mind” when hearing the Defendant’s evidence on cogency and prejudice [116].

“All the circumstances of the case”

The Court is not limited to the factors listed at s.33(3) and must consider all the circumstances of the case.

The Claimants submitted that the case involves conduct that breaches Articles 3, 4, 5 and 8 ECHR. Further, they prayed in aid Article 73 of the UN Charter, the UN Convention against Torture, as well as the Forced Labour Convention, asserting that where the UK was accused of deliberate breaches of international obligations, a time limit should not prevent claims being heard [119].

However, similar arguments had been considered in detail and rejected in Mutua by McCombe J (§§150-159), and so could not be taken into account here [121]. McCombe J had held that the Limitation Act 1980 already conferred “the widest possible discretion, within bounds” to allow personal injury claims to continue, and that international public law considerations added nothing to the exercise (§152).

Stewart J did not regard the “reasonable speed” of litigation since issue as a relevant factor [122].

The Court next considered the statutory factors under s.33(3), dealing with cogency, (b), last.

 The length of, and reasons for, delay (s. 33(3)(a))

Courts must undertake a subjective enquiry [127] and determine whether the reasons are good or bad [128]. Claimants must give reasons for the delay, justification for non-disclosure is not self-proving [132].

In TC34’s case the length of delay (which is to be measured from the expiry of primary limitation [125]) was about 56 years [133]. The length of the delay was important, “not so much for itself as to the effect it has had[441].

TC34 gave no reason for the delay either in his witness statement or orally [134].

General closing submissions advanced some justifications. Namely, it was said that the Claimants were inter alia, illiterate, impecunious, non-English speakers, who had been members of a proscribed organisation [136-138].

The Court was not persuaded.

The problem with all these submissions is that there is just no evidence from TC34… Reasons for delay are not self-proving. It is also unsatisfactory to be asked to draw inferences when Claimants have given written and oral evidence and have said nothing on the reasons for their delay. [144]

In the absence of any evidence from TC34 explaining the delay, the Claimants tried to rely on reasons within the Reply. Stewart J considered those briefly, but noted that pleadings were not evidence (on which see Gordon Exall’s blog post ).

That TC34 was poorly educated, unsophisticated and did not speak English were weighed in the balance [155, 444], and a period in detention could account for a delay in seeking to legal redress, but only until 1963 [153-154, 444] but late and unpersuasive evidence pointing to medical reasons could not[150-151].

 The Defendant’s conduct (s.33(3)(c))

Only procedural conduct following the first pre-action correspondence was relevant to this subsection, per Halford v Brookes [1991] 1 WLR 428 [159], and there was no ground for criticising the Defendant’s conduct on that basis [445].

Disability of the Claimant (s. 33(3)(d))

The only relevant disability in these cases relates to claimants under 18 when injured, for whom time did not run until they were adults [163]. References to alcoholism and PTSD went nowhere; disability for s.33 purposes is strictly limited to incapacity to conduct proceedings, of which there was no evidence [164, 446].

Claimant acted promptly and reasonably when he knew he might have a claim? (s. 33(3)(e))

The Court noted an “echo” of s.33(3)(a) (reasons for the delay) within this consideration [166]. However in subsection (e), an objective standard is applied, per Stuart Smith LJ in Dale v British Coal Corporation [1992] PIQR P373 at 383 [166]. TC34 did not act promptly, and there is no evidence that he acted reasonably [167, 447].

Expert advice obtained by Claimant (s. 33(3)(f))

There was no evidence about any steps taken by TC34 to obtain expert or legal advice or why he did not take any such steps [168, 448].

The extent to which the cogency of the evidence is depleted by the delay (s. 33(3)(b))

This seems to have been the most important of the statutory factors under s.33(3).

The relevant delay is delay since the expiry of the limitation period, but the entire period of time which has passed is relevant [176].

Two key factors are witness availability and the quality of evidence [177] and the effects of the availability, or unavailability, of documentation [181].

As to documents,

what is clear is that there is a great deal which is not clear. Apart from what we have, it is unknown what was destroyed in Kenya, what was returned to the UK, what remains in Kenya or has been lost/destroyed there.[188].

More specifically, despite searching on a “massive scale”, there were no documents relating to TC34’s detention at all [189, 193], meaning his evidence of detention could neither be confirmed nor challenged [195]. The Court had previously held that the lack of documents was not attributable to any or any irresponsible destruction by the Defendant [211]. The prejudice was theirs:

On the core allegations and many other potentially important contextual matters, the Defendant does not know the names of any witness, or any means of beginning a process of identifying, much less tracing, them. The passage of so many years in this case entails that the Defendant cannot even begin any proper investigation of the core allegations [203].

As to witnesses, a great deal were dead or could not be traced. No particularly high-ranking officials could be produced [217]. Had the claim been brought earlier, witnesses could have given evidence of the prevailing circumstances, systems and processes at the time [223]. Moreover, the alleged tortfeasors and proximate witnesses could have testified [232].

There was no medical evidence in support of TC34’s injuries, it was not clear whether such evidence had ever existed [239, 242].

Allegations made by other test claimants, akin to similar fact evidence, suffered from the same issued as those of TC34, and there was no direct corroboration across the cohort [314].

Stewart J turned to the specific factual allegations pleaded in relation to TC34, relating to a number of locales and different occasions [249-389]. His findings are too numerous to set out here, but common themes were a lack of witnesses to support core allegations, the impossibility of the Defendant being able to investigate who was responsible, or to call witnesses to contextualise the events and a lack of documentation, whether circumstantial or specific to TC34. Allegations made in time, or much sooner, the Court found, could have been much better investigated and the Claimant’s own recollection would have been fresher and therefore more reliable [337, 359, 379, 389].

Summarising, the Court was in

no doubt that TC34’s evidence has been rendered significantly less cogent by the delay in issuing the claim [461], … [and] the strong probability is that the Defendant would have been in a very substantially better position to defend the core allegations well into the mid-1960s… it is now essentially impossible for the Defendant to have any proper opportunity to find documentary or witness evidence with real relevance to the core allegations [463].

 The question of prejudice

It was reiterated that the relevant prejudice to assess was that which affects the Defendant’s ability to defend, a task which involves considering what evidence might have been available had the claim been brought earlier [451].

Regarding the prospects of a fair trial, the purpose of the Limitation Acts was to protect defendants from stale claims which it would be unjust to fight given the remove of time, which was particularly relevant when documents or witnesses are lost to time, impeding a defendant’s ability to defend [450].

The Court could not determine when the opportunity for a fair trial had been lost, but could be sure that

…there cannot now be a fair trial of any of the core allegations. That is because of the delay.  [481].

Stewart J’s concluding remarks were:

In short, I must refuse to exercise my section 33 discretion in TC34’s favour on all his claims for personal injury arising from the core allegations. The position is encapsulated in the words of Lord Brown in A v Hoare already cited: “By no means everyone who brings a late claim for damages….. however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour”. In Davies Tomlinson LJ said at [55] that section 33: “…is a corrective for injustice where the circumstances allow.” The circumstances do not so allow in TC34’s claims.

This judgment, of course, relates only to one Test Claimant. However, many of the findings set out above will apply with equal force to other claimants. TC34 has 21 days from judgment to ask for permission to appeal, so for the moment at least, this very long story continues.

Jo Moore was instructed by Government Legal Department for the Defendant in this case. Also from 1 Crown Office Row were Guy Mansfield QC (instructed as first Leading Counsel of the counsel team), along with Peter Skelton QC, David Manknell, Matthew Donmall, Jessica Elliott, Michael Deacon and Rhoderick Chalmers.

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