Kimathi & Ors v The Foreign & Commonwealth Office

Relief from sanctions under CPR 3.9 requires a structured assessment of the seriousness and significance of the breach, the reason for it, and all the circumstances of the case. A serious or significant breach without good reason does not automatically determine the application, but the court must give particular weight to efficient and proportionate litigation and compliance with rules and orders. Promptness is also relevant. In group litigation, a lengthy delay in seeking permission to join claimants may undermine the discipline and purpose of the cut-off date, particularly where the evidence does not establish solicitor default and admission would create additional procedural and evidential burdens.

The claimants applied for relief from sanctions and permission to add 32 claims to a group litigation register after the applicable cut-off date. The claims arose from alleged mistreatment in Kenya and included personal injury claims, estate claims and one proposed false-imprisonment claim. The Group Litigation Order had imposed a deadline for adding claims, later extended to 30 May 2014. The application was issued in November 2016, after the trial had begun and numerous case management hearings had taken place. The central issue was whether relief should be granted under CPR 3.9.

1. The applications were dismissed. The court applied the three-stage approach in Denton v White Limited and De Laval and others [2014] EWCA Civ. 906: assess the seriousness and significance of the breach, identify why it occurred, and evaluate all the circumstances so as to deal justly with the application.

2. The breach was serious and significant. The application was issued about two and a half years after the register closed, after numerous case management hearings and while the trial was in progress. The delay was therefore far from prompt.

3. The claimants had not shown a good reason for the default. The evidence did not establish that the former solicitors had failed to register the claims. It suggested that some claims may properly have been excluded or removed, including claims brought only on behalf of deceased persons and claims lacking sufficient information. The court could not infer solicitor default merely from the claimants’ recent accounts.

4. At the third stage, the absence of a good reason did not automatically dispose of the application. The court gave particular weight to efficient and proportionate conduct of the litigation, compliance with the court’s orders, the seriousness of the breach, the lack of promptness, uncertainty about the merits of several claims, and the additional work and cost that admission would create for the defendant. The reasoning in PIP Breast Implant Litigation [2014] EWHC 1641 (QB) supported the importance of preserving discipline in group litigation.

5. Estate claims relating to persons who had died before the cut-off date were impermissible in any event. No relevant grant of administration and resealing in England had been established, and those claims were outside the scope of the group litigation. The proposed false-imprisonment-only claim also failed because the court had ruled that false imprisonment was not to be pleaded as a cause of action.

6. Relief from sanctions was refused because the circumstances as a whole militated against admission of the claims.