Kimathi & Ors v Foreign & Commonwealth Office

On an application under section 33 of the Limitation Act 1980, the decisive question is whether disapplying the limitation period would be equitable after balancing the parties’ prejudice. An excusable delay may temper prejudice to the defendant, but it does not require disapplication where the passage of time has made a fair trial impossible.

Lost documents and witnesses may substantially reduce the cogency of the evidence. A defendant may itself be prejudiced in proving precisely what evidence has disappeared. An appellate court will not interfere with the resulting discretionary assessment unless the judge erred in principle or exceeded the generous ambit of reasonable disagreement.

Kenyan nationals brought group litigation alleging torture and rape during the State Emergency in Kenya. This application concerned the first test claimant, TC 34, whose claim in trespass to the person arose from alleged assaults between about 1955 and 1963 but was not brought until 2014.

Stewart J, in [2018] EWHC 2066 (QB), declined to disapply the three-year limitation period under section 33 of the Limitation Act 1980. After hearing extensive evidence, he found that the loss of documents and witnesses made a fair trial of the core allegations impossible.

TC 34 sought permission to appeal, challenging the judge’s treatment of the reasons for delay, his failure to select a precise date by which proceedings should have been brought, his assessment of evidential cogency and corroboration, and the alleged lack of even-handedness.

1. Application for permission to appeal dismissed. The judge had exercised the section 33 discretion after a thorough examination of the evidence. None of the proposed grounds disclosed an arguable basis for appellate interference.

2. The reasons for delay were relevant to the statutory balance. The judge was entitled to decline to infer reasons without supporting evidence or to transfer findings made about different claimants in Mutua. More fundamentally, he expressly assumed in TC 34’s favour that all pleaded reasons for delay could be placed in the balance. He nevertheless concluded that the resulting unfairness to the defendant outweighed the claimant’s prejudice because the case could no longer be tried fairly.

3. The judge was not required to determine a precise later date by which the action should have been brought. TC 34 could not reasonably have sued before his release in 1963, but the material question was the evidential position produced by the delay as a whole and whether a fair trial remained possible. The alleged continuing proscription of Mau Mau required evidence of the inhibition said to result from it and was not, without such evidence, determinative of when an English action could reasonably have been commenced.

4. The findings on evidential prejudice were amply justified. Relevant detention records and other contemporaneous documents probably once existed, but their fate was unclear. The delay deprived the defendant of the opportunity to locate them, investigate their disappearance and identify potential witnesses or alleged tortfeasors. In an exceptionally old claim, prejudice could include the defendant’s inability to prove more specifically what evidence had been lost.

5. The judge did not impose a legal requirement of corroboration. He permissibly recognised that uncorroborated evidence was less cogent than evidence capable of being tested against documents or witnesses. Nor was evidence about ordinary archival destruction mere speculation.

6. Any historical reluctance to investigate allegations of abuse did not answer the distinct question whether the defendant was now prejudiced by the very late commencement of proceedings.

7. Applying Chief Constable of Greater Manchester Police v Carroll [2017] EWCA Civ 1992, appellate intervention in a discretionary decision requires a legal misdirection, reliance on irrelevant matters, failure to consider relevant matters, or a decision outside the generous ambit of reasonable disagreement. No such error was shown. Sir Rupert Jackson agreed.

1. Court of Appeal (Civil Division): In [2018] EWCA Civ 2213, dismissed TC 34’s application for permission to appeal.

2. High Court, Queen’s Bench Division: Stewart J, in [2018] EWHC 2066 (QB), declined to disapply the limitation period under section 33 of the Limitation Act 1980, holding that the evidential prejudice to the defendant made a fair trial impossible and outweighed the prejudice to TC 34.