Kimathi & Ors v Foreign and Commonwealth Office

When managing vulnerable witnesses, the court must apply the overriding objective and balance fairness, equality of arms, obtaining the best evidence, security, practical disruption and cost. Oral evidence given in public before the trial judge remains the normal rule. Evidence by video link is a permissible alternative, but convenience and cost must not dictate its use. Where witnesses cannot safely or reasonably attend court, video link evidence may provide a fair trial. A deposition abroad should not be ordered where its security risks and disruption outweigh its evidential advantages.

This was a renewed case-management application in group litigation brought by Kenyan claimants against the Foreign and Commonwealth Office. The claimants sought to give evidence in Kenya by deposition before an English judge, together with a ground-rules hearing for vulnerable witnesses. The application followed an earlier judgment, [2015] EWHC 3116 (QB), and further medical, security and costs evidence.

The defendant accepted that a ground-rules hearing was required, but opposed taking evidence in Kenya. The central issues were whether depositions in Kenya or video link evidence would best serve a fair and proportionate trial, and which claimants should attend in London.

1. Applicable principles. The court’s discretion was a case-management discretion governed by the overriding objective in Civil Procedure Rules 1998, r 1.1. The court had to deal with the litigation justly and at proportionate cost, including so far as practicable ensuring equality of arms and a fair and expeditious trial.
2. The normal rule under Civil Procedure Rules 1998, r 32.2(1)(a), was that witness evidence required for proof of a fact should be given orally in public at trial. Under r 32.3, the court could permit evidence by video link or other means. Video link evidence was less ideal than evidence given physically before the court, and its convenience could not dictate the result. The court had to consider whether it would assist the fair and efficient disposal of the litigation.
3. The evidence of 16 claimants who were agreed to be unfit to travel to England would not be taken by deposition in Kenya. Although live evidence before the judge was desirable, the security risks to the judge and legal teams, the prolonged period of heightened security, practical disruption and uncertain cooperation from the Kenyan authorities outweighed that advantage. A fair trial remained possible by video link.
4. Cost differences had some weight but were modest in the context of litigation potentially exceeding £100 million. The claimants’ proposal that the parties should share the costs of facilitating evidence abroad was rejected. The court was responsible for managing the litigation under the overriding objective, and the consequences of departing from the normal rule could properly weigh against the application.
5. Video link evidence was permitted for 16 claimants unfit to travel and two elderly claimants for whom travel raised medical concerns. Nine claimants fit and willing to travel, and five medically fit claimants whose reluctance was based principally on age, unfamiliarity or convenience, were required to attend in London, subject to reconsideration if their medical condition changed. A ground-rules hearing was required for special measures.