Kimathi & Ors v Foreign and Commonwealth Office

When interpreting a court order, the court may use the reasons for making it to clarify ambiguous language. Those reasons cannot be used to contradict the order’s wording. Where successive orders must be read together, a later order may clarify the operation of an earlier procedural requirement and its sanction. A document-management order may therefore require documents to be identified separately for each test claimant. Reliance on documents outside the relevant list may require relief from sanctions under Civil Procedure Rules 1998, Rule 3.9.

The claimants applied for permission to rely on further documents in ongoing test-case litigation against the Foreign and Commonwealth Office. The parties had made several procedural orders governing the identification and use of documents in the generic and individual cases.

The remaining preliminary issue was whether those orders permitted the claimants to rely on documents not included in the individual test claimant lists served by 30 June 2017, or whether reliance on such documents required relief from sanctions. The court also considered the meaning of the later order dated 28 November 2017.

1. Interpretation of orders. The court adopted the principle stated in Falmouth House Limited v Abou-Hamdan [2017] EWHC 779 (Ch): a judgment may be used to elucidate what an order means, because the order implements the judge’s decision, but the reasons cannot be used to contradict the language of the order.
2. March and June 2017 orders. Paragraph 21 of the March order was ambiguous as to whether one general individual-case list was sufficient or whether documents had to be identified by test claimant. The June order clarified the requirement by providing that the claimant in whose case reliance was placed on a particular document had to be identified. Read together, the orders required each document relied upon by a test claimant to appear on that claimant’s list.
3. Effect of non-compliance. The sanction in paragraph 22 of the March order applied where a document was not on the relevant individual list. The words permitting reliance on further documents with the court’s permission did not displace that sanction. Accordingly, documents not on an individual test claimant’s list served by 30 June 2017 could be relied upon only if relief from sanctions was obtained under Rule 3.9 of the Civil Procedure Rules 1998.
4. November 2017 order. Paragraph 10 imposed additional duties to identify documents with the relevant closing submissions and to state the reasons for reliance. The proviso concerning documents already adduced elsewhere did not permit a construction that undermined the earlier individual-list requirement or its sanction. The court declined to determine the wider meaning of that proviso beyond what was necessary.