Kimathi & Ors v The Foreign And Commonwealth Office

Permission to amend a statement of case during a lengthy trial is discretionary and must be determined by the overriding objective. A very late amendment places a heavy burden on the applicant to explain the delay, demonstrate the strength of the proposed case and address prejudice to the opponent, other litigants and the trial timetable. Prejudice includes the need for further cross-examination, documentary searches, pleading and proof of new issues, and disruption to an established trial. A new claim may be added after limitation only where it arises from the same or substantially the same facts as an existing claim. Proposed customary international law claims must identify the relevant rule, settled state practice, the belief that the practice is legally obligatory and the acts allegedly breaching the rule.

The claimants sought permission to amend generic and individual particulars of claim during an ongoing group litigation trial. The proposed amendments included claims for false imprisonment, a revised case concerning alleged liability for the dilution technique, amendments concerning injuries and documentary evidence, and references to customary international law.

The false imprisonment claim had been removed from the pleadings in 2014 and had never appeared in the individual particulars of claim. The dilution amendment reflected the case advanced in opening and did not require the recall of witnesses. The court therefore had to determine whether the amendments should be permitted under the Civil Procedure Rules, the overriding objective and the limitation provisions.

1. False imprisonment. The application to reintroduce false imprisonment was refused. It was made nearly three years after the allegation had been removed, with no proper explanation for the delay. Counsel error was not a sufficient justification. The proposed claim would require reconsideration of burden of proof, further pleading and evidence, substantial documentary searches, and the recall and cross-examination of elderly and vulnerable test claimants. This would cause real prejudice and serious disruption to a trial already substantially extended.
2. The claim was a new claim for the purposes of section 35(2) of the Limitation Act 1980. Sections 35(3)–(5) and CPR rule 17.4(2) did not assist the claimants because they had not shown that false imprisonment arose from the same or substantially the same facts as the existing assault, battery and negligence claims. Similarity or factual overlap was insufficient.
3. Dilution technique. Permission was granted to amend the pleaded case on joint liability. The substance of the allegation had been advanced in opening and remained substantially within the existing case. The amendment was clear, did not require the recall of witnesses and, although it might cause further research and delay, the balance under the overriding objective favoured allowing it.
4. Other amendments. Amendments updating or narrowing injury allegations, correcting the location of an alleged electrocution, clarifying loss of livestock and particularising dates by reference to documents were allowed. Reliance on medical evidence was permitted only insofar as it concerned matters already pleaded.
5. Customary international law. The proposed amendments were refused as inadequately particularised. They had to identify the relevant customary rule, extensive and virtually uniform state practice, the understanding that states were legally bound by that practice, the standard relied upon and the acts complained of.
6. The revised amendments were therefore permitted except those relating to false imprisonment and customary international law.

The judgment concerned an interlocutory amendment application during an ongoing group litigation trial. The court had previously determined preliminary issues in [2017] EWHC 203 (QB).