Kimathi & Ors v Foreign & Commonwealth Office

Whether a limitation issue should be tried preliminarily depends on the overriding objective and the particular litigation. Relevant considerations include its potential to dispose of the case or reduce costs, the extent of factual dispute, the risk of duplication, delay, appeal, unfairness or procedural fettering, and overall justice.

In an exceptional and very long personal injury group action involving elderly witnesses, a section 33 limitation issue need not be tried preliminarily even where appellate authority strongly favours early determination. The court may instead order other limitation issues to be tried preliminarily after the test claimants have given evidence.

The Foreign and Commonwealth Office applied for preliminary determination of issues concerning double actionability and limitation in Kenyan Emergency Group Litigation. The court declined at that stage to decide whether double actionability should be tried preliminarily.

The limitation issues included a pre-1954 time bar, date of knowledge, deliberate concealment under section 32 of the Limitation Act 1980, and the section 33 discretion. The test claimants were elderly, the litigation was exceptionally large, extensive evidence had already been prepared, and the trial timetable was imminent. The central issue was whether section 33 should be determined as a preliminary issue after the test claimants’ evidence or at the conclusion of the trial.

1. Preliminary issues. The court applied the guidance in Steele v Steele [2001] CP Rep 106 and McLoughlin v Jones [2002] QB 1312; [2001] EWCA Civ 1743. The court considered whether each issue was decisive or potentially decisive, whether it was primarily a question of law, whether it could be tried on agreed or assumed facts, and the effects on cost, delay, pleadings, settlement and overall justice.
2. Section 33. Under section 33(1) of the Limitation Act 1980, the overriding question is whether it is equitable, meaning fair to both claimant and defendant, to allow the action to proceed. The possibility of a fair trial is necessary but not sufficient. The court also took account of the strong guidance in KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 that limitation should be determined preliminarily wherever feasible, and that substantive findings should not be used prematurely to assess evidential cogency.
3. Application. Although section 33 was highly relevant and an early decision might save substantial costs or encourage settlement, a preliminary hearing would require extensive examination of documents and individual evidence. If appealed, it could leave the trial part-heard for several years, with serious risks arising from the age, death or incapacity of witnesses and the possible loss of the trial judge. In this highly unusual litigation, those risks outweighed the advantages of an early section 33 determination.
4. The application to try section 33 as a preliminary issue was refused. The pre-1954 time bar, sections 11 and 14, and section 32 of the Limitation Act 1980 were ordered to be tried preliminarily as soon as practicable after the test claimants had given evidence. The question of double actionability was left open for possible renewal.

First-instance case management ruling. No prior appellate decision is stated in the judgment.