Kimathi & Ors v Foreign and Commonwealth Office

In complex group litigation, historical expertise may assist with identifying relevant documents and witnesses, but historians cannot give admissible factual evidence merely by analysing documents or presenting the claimant’s case. Similar-fact evidence is admissible where it has genuine potential probative value, subject to proportionate case management. The court may exclude otherwise admissible evidence where its probative value is low and admission would distort the trial, create unfair prejudice, or impose disproportionate costs. Hearsay is not inadmissible merely because it is hearsay of several degrees. Nevertheless, the court may exclude hearsay under the Civil Procedure Rules where its limited value is outweighed by the practical burdens and risks of admitting it.

The defendant applied in Kenyan Emergency group litigation to exclude three categories of evidence: statements from historians prepared for earlier proceedings, corroborative statements from additional claimants, and hearsay statements comprising extracts from a historian’s book and statements attributed to deceased or unavailable witnesses. The defendant also sought permission to cross-examine available hearsay makers.

The central issues were whether the evidence was relevant and admissible, and whether the court should exclude it under its case-management powers having regard to the overriding objective.

1. Historians’ statements. Statements used in a public hearing in earlier proceedings satisfied CPR 32.12(2)(c), but that rule removed only the restriction on reusing the statements. It did not make them admissible. The historians were not witnesses to the events. Their proposed evidence principally consisted of opinions about what documents showed and inferences drawn from them. That material was not admissible factual evidence and trespassed on the court’s fact-finding function. The historians could assist the claimants in organising and presenting the documents without giving evidence. The application to exclude their statements was therefore upheld.
2. Additional corroborative witnesses. The court applied the approach in O’Brien v Chief Constable of South Wales Police. Relevance was the test of admissibility for similar-fact evidence, subject to the court’s power under CPR 32.1 to control and exclude evidence. Evidence concerning alleged forced labour and mistreatment at locations also identified by test claimants could be substantially probative, including on whether the conduct was systematic. Its ultimate weight could not yet be determined. The evidence was not excluded merely because the witnesses had not been randomly selected as test claimants. The defendant’s application failed, without prejudice to a further application if circumstances changed.
3. Hearsay. Under sections 1(1) and 1(2) of the Civil Evidence Act 1995, hearsay was admissible regardless of its degree. Non-compliance with safeguards affected weight, case management and costs rather than admissibility. Under section 3 and CPR 33.4, the defendant could call a hearsay maker for cross-examination. The statements from deceased claimants were admitted for essentially the same reasons as the additional witnesses.
4. The extracts from the historian’s book and attributed accounts had very low probative value. They were remote in time, involved multiple hearsay, lacked a clear connection with the test cases, and were accompanied by substantial commentary. Their admission would risk collateral disputes, prejudice and disproportionate costs. They were therefore excluded under CPR 32.1.