Kimathi & Ors v Foreign and Commonwealth Office

When a party seeks to adduce material late, the court must consider the circumstances of non-disclosure, the material’s relevance, the ability of the opposing party to deal with it, and the overriding objective. The court may refuse material where its relevance and potential prejudice are insufficiently particularised, especially if admission would require further evidence or recall of a witness and disrupt an existing trial timetable. A specific disclosure order governs the parties’ obligations. It does not automatically impose standard disclosure of documents that adversely affect a party’s case.

The claimants sought permission to rely on chapters from Scrambled Africa, a book written by the defendant’s witness, Mark Milbank. They contended that the book might conflict with his evidence and affect its reliability and weight.

The defendant opposed admission. The court considered the scope of an earlier disclosure order, the circumstances and timing of the application, the relevance of the chapters, possible prejudice, and the effect on the ongoing trial timetable.

1. Application refused. The claimants were not permitted to adduce chapters 3, 4, 5, 6 and 9 of Scrambled Africa.
2. The disclosure order dated 11 December 2014 required disclosure of documents produced between 1950 and 1963 which were in the defendant’s possession, together with documents on which the defendant relied. Mr Milbank’s non-contemporaneous book did not fall within that order merely because the defendant might have known of it. The order did not revert to standard disclosure under CPR rule 36.1(b)(i), which concerns documents adversely affecting a party’s case.
3. The court recognised that a party must not mislead, or allow a witness to mislead, the court. However, there was no evidence or assertion that this duty had been breached.
4. In deciding whether to admit late material, the court applied the approach in McTear & another v Engelhard [2016] EWCA Civ 487. Relevant considerations included whether the opposing party wished to rely on the material, the circumstances of the late disclosure, its relevance, the ability of the opposing party to deal with it, and the overriding objective.
5. The application lacked particulars identifying the alleged inconsistencies, explaining the material relevance of the chapters, or identifying specific prejudice. Admission might require a further witness statement and recall of an elderly witness, with consequent disruption to a lengthy and already demanding trial timetable. The delay in raising and issuing the application also weighed against relief.
6. Balancing those matters, the overriding objective required refusal of the application.

This was a first-instance interlocutory application in ongoing proceedings. The judgment does not state any appeal from the decision.