Mutua & Ors v The Foreign & Commonwealth Office

On an application for strike out or summary judgment, the court must assess the pleaded case at its highest and avoid resolving substantial factual disputes or conducting a mini-trial. A claim based on novel or developing law should ordinarily proceed where its viability depends on facts requiring fuller investigation. A colonial administration and the government of the colonial power are distinct legal entities. The existence of the former does not prevent the latter from being liable as a joint tortfeasor if it participated in a common design to procure unlawful violence. A negligence claim may also be arguable where the alleged conduct involves active participation in, or control of, the source of danger, rather than a mere omission. Claims founded solely on the automatic transmission of the colonial administration’s tort liabilities on independence were struck out.

Five Kenyan claimants brought claims against the Foreign and Commonwealth Office for alleged assault, battery and negligence arising from severe mistreatment during detention in Kenya between 1954 and 1959. The defendant applied under CPR Parts 3 and 24 to strike out the claims or obtain summary judgment, and the claimants sought permission under Part 17 to amend their particulars. The applications were heard before trial, with substantial disputes concerning the constitutional structure, the roles of the Colonial Administration, the British Army and the UK Government, and the evidence of systematic abuse.

The central questions were whether liability of the Colonial Administration passed to the UK Government on independence, whether the UK Government could be liable for participation in a common design causing the alleged torts, and whether a duty of care was arguable.

The defendant’s applications under CPR Parts 3 and 24 were allowed only in part. The claim based on the alleged transfer or devolution of the Colonial Administration’s liabilities on Kenyan independence was struck out, and permission to reintroduce it by amendment was refused. The remaining formulations based on joint tortious liability and negligence were held fit for trial, and permission to amend was granted.

1. Procedural approach. The court applied the summary judgment principles summarised in Attrill & ors v Dresdner Kleinwort & anor; Fahmi Anar & others v Same [2011] EWCA Civ 229. A realistic claim is more than merely arguable, but the court must not conduct a mini-trial. The evidence reasonably expected to be available at trial must be considered. Serious disputes about the historical documents and the roles of the relevant governments could not be resolved summarily.
2. Transfer on independence. As a matter of English law, liabilities in tort of the Colonial Government passed seamlessly to the independent Government of Kenya and did not become liabilities of the UK Government. The independence instruments preserved existing governmental rights and liabilities, while leaving Kenya to determine their future treatment. The customary international-law argument could not displace the construction of the statutory instruments.
3. Joint tortfeasor claim. The existence of a Colonial Government did not preclude the UK Government from having a separate legal role or from forming a common design with it. If the evidence established a system of torture and participation by those exercising command or policy-making authority, the court could infer instigation or procurement of the assaults. That issue was properly triable.
4. Negligence. The pleaded case was not necessarily one of mere omission. If the UK Government had actively directed policy or participated in implementing it, the facts could disclose the additional feature required to found a duty to take reasonable steps to avert harm. The questions of foreseeability, proximity, and whether it was fair, just and reasonable to impose a duty were unsuitable for final determination on untested evidence. The court did not decide liability or find that a system of torture existed.