Kimathi & Ors v The Foreign And Commonwealth Office

The discretion under section 33 of the Limitation Act 1980 requires a balance of prejudice in all the circumstances. The claimant bears the ultimate burden. The defendant bears the evidential burden of showing that delay has reduced the cogency of its evidence. A fair trial requires a fair opportunity to investigate the allegations. Its possibility is necessary, but insufficient, for disapplying limitation.

The court must consider evidence that might have been available earlier. Delay may itself prevent the defendant from identifying lost evidence or proving specific prejudice. That lost opportunity can constitute established prejudice. Reasons for delay require evidence or justified inference; pleadings alone are insufficient. The seriousness of alleged abuse cannot overcome the absence of a fair trial.

TC34 was an anonymised test claimant in group litigation against the Foreign and Commonwealth Office concerning alleged abuse during the Kenyan Emergency. He alleged assaults at Ngong Forest, Manyani camp, MacKinnon Road camp, his home village of Gikuni and Hola open camp. The defendant disputed the allegations and its legal responsibility for the alleged perpetrators. Following earlier rulings, the surviving claims concerned batteries causing personal injury.

TC34 joined the group register in May 2014. His claims were approximately 51 to 56 years beyond their primary limitation periods. The defendant had found no documents or witnesses specific to the alleged assaults, despite extensive searches. TC34 relied on his recollections, jointly instructed medical experts and general evidence of conditions and other abuses.

The court considered whether the allegations post-dated 4 June 1954 and whether it was equitable to disapply limitation under section 33 of the Limitation Act 1980. Questions of the defendant’s generic legal responsibility remained reserved.

1. Refusing to exercise the section 33 discretion in TC34’s favour on all five core allegations. The court found that the allegations probably post-dated 4 June 1954, so the absolute bar applicable to earlier claims did not determine the result. Nevertheless, delay had made a fair trial of every core allegation impossible. The court did not determine whether the assaults occurred or resolve the reserved generic liability issues ([267]–[268], [475]–[484]).

2. Section 33 of the Limitation Act 1980 required a broad balance of prejudice, taking account of all the circumstances. The claimant’s burden was not inherently heavy. The defendant bore the evidential burden of establishing diminished evidential cogency through delay. A fair trial was a necessary, but insufficient, condition for disapplication. It included a fair opportunity to investigate the allegations. The principles summarised in Chief Constable of Greater Manchester Police v Carroll [2017] EWCA Civ 1992 governed the assessment ([105]–[118], [436]–[438], [451]–[454]).

3. The limitation assessment had to precede conclusions on substantive liability, causation and quantum. It could include oral evidence and adverse evidential conclusions. It could not proceed from accepting the claimant’s account without considering evidence that an earlier investigation might have produced. Here, missing records, unavailable contextual witnesses and unidentified perpetrators deprived the defendant of a proper investigation. Delay also prevented it from establishing precisely what evidence had disappeared. That lost investigative opportunity was itself proven prejudice ([106]–[110], [203]–[204], [462]–[464]).

4. Reasons for delay required an individual evidential assessment. TC34 gave no express evidence explaining his delay. Pleadings verified by a statement of truth were not trial evidence unless adopted orally. The court inferred limited access to legal advice during detention and considered his limited education and sophistication. It found no established good reason for delay after about 1963. Even accepting all the explanations advanced on his behalf, the balance would still favour the defendant ([33]–[35], [144]–[157], [443]–[448], [483]).

5. The defendant’s inability to advance a positive account did not require acceptance of TC34’s evidence. Substantial inconsistencies should generally be put to a witness. The court therefore limited the weight of inconsistencies he had not been invited to explain. Confidence, vivid recollection and distress did not establish historical accuracy. General allegations of other abuses provided little corroboration of these particular assaults ([85]–[100], [301], [316]–[326], [458]–[461]).

6. Neither a perceived need for public investigation nor reliance on international obligations supplied a proper additional basis for disapplication in these claims. Modest individual damages would not, however, count against otherwise equitable relief, given the seriousness of the allegations and the group litigation context. The defendant had not been shown to have destroyed relevant records irresponsibly. TC34’s substantial prejudice in losing the opportunity to establish his claims was ultimately outweighed by the defendant’s inability fairly to investigate and defend them ([119]–[122], [170]–[175], [208]–[213], [475]–[484]).

• High Court: In the present judgment, [2018] EWHC 2066 (QB) , the court refused to disapply limitation for any of TC34’s five core allegations.
• High Court: Earlier rulings rejected deliberate concealment under section 32 of the Limitation Act 1980, [2018] EWHC 1169 (QB) , and held that fear alone was not personal injury, [2018] EWHC 1305 (QB) . The court also refused to vary the pre-1954 limitation date, [2018] EWHC 686 (QB) .
• High Court: Pleading rulings refused amendments introducing false imprisonment, [2017] EWHC 938 (QB) , and allowed some but refused many proposed liability and injury amendments, [2017] EWHC 2145 (QB) and [2017] EWHC 2703 (QB) .
• High Court: The court refused to try section 33 as a preliminary issue, [2016] EWHC 600 (QB) . The trial began in May 2016. The claim form had been issued in March 2013 and a Group Litigation Order made in November 2013.