Kimathi & Ors v Foreign and Commonwealth Office

Late amendments to personal-injury pleadings must be controlled by the overriding objective. The absence of prejudice is relevant but is not decisive. A claimant may clarify or reduce an existing physical or psychological allegation by reference to medical evidence, including symptoms associated with physical injury. The legal effect of those symptoms may be left for final submissions. A general pleading of psychological injury or symptoms does not ordinarily permit a later amendment alleging a specific diagnosed psychiatric disorder where the diagnosis and relevant medical evidence were available before the claimant gave evidence. Such an amendment introduces a new injury and may be refused as too late, particularly where the defendant shaped its cross-examination on the basis of the existing pleading.

The claim formed part of complex Kenyan Emergency Group Litigation. Following earlier judgments on amendments, the claimants served final amended or re-amended Individual Particulars of Claim. The defendant applied under the earlier order for permission to challenge amendments not previously contained in the drafts.

The disputed amendments principally concerned personal injuries. They included attempts to particularise physical injuries and psychological symptoms by reference to expert evidence, and attempts to plead named psychiatric diagnoses such as post-traumatic stress disorder or adjustment disorder. The central issues were whether the amendments remained within the permitted scope, whether they introduced new injuries or causes of action, and how delay, prejudice and the overriding objective should affect the exercise of discretion.

1. The defendant’s application was allowed in part. The court ruled amendment by amendment in the attached Scott Schedule. Some amendments were permitted, some were refused, some were withdrawn or not pursued, and some were allowed only in revised form.
2. The court reaffirmed that the overriding objective governs late amendments. The litigation was exceptionally complex, but the parties and court required procedural discipline. The fact that an amendment caused little or no prejudice was not determinative. The court also considered whether the amendment could and should have been made before the test claimants gave evidence.
3. Where a claimant had pleaded physical injury, amendments clarifying the location, consequences or symptoms of that injury could be allowed if they remained within the existing case and were supported by the evidence. Similar treatment applied to psychological symptoms associated with physical injury. The court left their legal effect and recoverability for final submissions, rather than deciding those issues on the amendment application.
4. There was a material distinction between symptoms and a diagnosed psychiatric disorder. A general allegation of psychological injury, or symptoms such as flashbacks, distress or rumination, did not by itself plead a specific condition. A diagnosis depended on the relevant diagnostic criteria and often relied on additional symptoms not previously pleaded.
5. Amendments introducing named psychiatric conditions, including PTSD, chronic adjustment disorder or depressive disorder, were generally refused where the condition had not previously been pleaded and the medical evidence had been available for months before the claimants gave evidence. The defendant had been entitled to conduct cross-examination on the basis of the existing pleadings. The references to medical evidence in the pleadings did not operate as a general catch-all permitting unpleaded injuries.
6. The court also refused amendments which introduced new physical injuries or unpleaded factual allegations where they could have been raised earlier and would alter the pleaded case or cause prejudice. The final permitted wording was settled in the individual rulings.

The judgment was the third judgment concerning amendments in the litigation. Earlier judgments were handed down on 27 April 2017, cited as [2017] EWHC 938 (QB), and on 18 August 2017, cited as [2017] EWHC 2145 (QB). Following the August order, the claimants served final amended or re-amended Individual Particulars of Claim and the defendant made the present application.