Kimathi & Ors v Foreign And Commonwealth Office

For limitation purposes, section 32(1)(b) of the Limitation Act 1980 postpones time only where a fact necessary to complete the claimant’s cause of action has been deliberately concealed. Evidence which merely strengthens the claim, assists proof, identifies possible defences, or reveals the wider factual context falls outside the provision.

The claimant must prove concealment from the claimant, together with the requisite intention. Section 32(2) provides an alternative route where the defendant deliberately committed a breach of duty in circumstances in which discovery was unlikely for some time. It does not apply merely because documents concerning an openly committed tort were later unavailable.

The claimants brought group litigation against the Foreign and Commonwealth Office concerning alleged assaults, detention, forced labour, property interference and negligence arising from events during the Kenyan Emergency in the 1950s.

The defendant relied on limitation. The claimants contended that documents had been destroyed or retained in the United Kingdom, including the Hanslope archive, and that this concealed facts relevant to their rights of action until 2011. They relied principally on section 32(1)(b) of the Limitation Act 1980, with section 26 of the Limitation Act 1939 also potentially applicable to the transitional issues.

The central questions were whether the alleged material comprised facts relevant to the causes of action, whether it had been deliberately concealed from the claimants, and whether the statutory transition from the 1939 Act to the 1980 Act affected the result.

1. Applicable limitation regime. The court rejected the claimants’ argument that the 1980 Act could be applied without first considering the 1939 Act. Under Schedule 2 paragraph 9 of the Limitation Act 1980, the court had first to determine whether the claims were already barred under section 26 of the Limitation Act 1939 before 1 August 1980. If they were, the 1980 Act could not revive them. If they were not, section 32 of the 1980 Act applied, taking account of matters before and after that date.
2. Meaning of relevant fact. The binding Court of Appeal authorities established the statement-of-claim test. A relevant fact is a fact without which the cause of action is incomplete. Facts which merely improve prospects of success, provide evidential support, assist credibility, or bear on a defence are not relevant facts for section 32(1)(b). The test applies across different causes of action, including competition claims, negligence and tort claims.
3. The claimants knew the facts necessary to plead prima facie cases for assault, battery, negligence, joint liability, vicarious liability, trespass and conversion when the alleged events occurred, or shortly afterwards. The Hanslope documents might strengthen the evidence and clarify the historical system, but they did not disclose facts necessary to complete those causes of action.
4. Deliberate concealment. The burden was on the claimants to prove, on the balance of probabilities, that a relevant fact had been concealed from them by the defendant, by a positive act or withholding of information with the intention of concealing it. The defendant need not know that the fact was legally relevant, but must know the fact and possess the requisite intention. No duty to disclose the documents to these claimants was established.
5. Section 32(2). Section 32(2) provides an alternative route where the defendant deliberately commits a breach of duty, knowing that it is a breach, in circumstances in which discovery is unlikely for some time. It concerns the underlying legal wrongdoing and not a later alleged breach consisting of concealing documents. The alleged torts were openly committed and known to the claimants, so section 32(2) had no application.
6. The court was not satisfied that the documents said to have been destroyed had in fact been destroyed by the defendant or the Colonial Government. Other possibilities included loss, destruction by another body, retention in an unsearched archive, or the documents never having been kept.
7. The court further held that subsequent concealment could, in principle, postpone time even where it occurred after accrual of the cause of action, as explained in Sheldon v Outhwaite [1996] AC 102. That principle did not assist these claimants because they already knew the relevant facts and had not proved deliberate concealment from them.
8. Subject to the separate discretion under section 33 of the Limitation Act 1980 in personal injury claims, the claims were barred under section 26 of the 1939 Act and/or section 32(1)(b) of the 1980 Act.