Kimathi & Ors v The Foreign and Commonwealth Office

Where a claimant seeks to introduce a new limitation argument late in a complex trial, the issue must be pleaded if it materially changes the case the defendant must meet. A point of law is not exempt from ordinary case-management requirements where its determination may require factual investigation, disclosure, further evidence or altered cross-examination. Permission to amend depends on the overriding objective, including the strength and lateness of the new case, the prejudice to both sides, the need for finality, proportionality and the effect on the trial timetable. Substantial disruption and irremediable prejudice may justify refusing amendment, even where the point may be important and arguable. An agreed order determining a preliminary issue cannot be appealed simply to raise a new point which was neither pleaded nor determined.

The claimants, victims of alleged mistreatment during the Kenyan Emergency, applied during a lengthy multi-party trial to amend their generic reply and argue that Arnold v Central Electricity Generating Board established an absolute limitation date of 4 June 1953, rather than 4 June 1954, for claims against public authorities. The proposed argument had not previously been pleaded or communicated as an issue.

The court had made an order on 27 October 2016, following the claimants’ concession that the High Court was bound by Arnold and McDonnell v Congregation of Christian Brothers Trustees, holding that causes of action accruing before 4 June 1954 were absolutely statute-barred. The applications concerned whether amendment was required, whether permission should be granted, whether the point could be argued despite the order, and whether permission to appeal should be given.

1. Amendment required. The proposed 4 June 1953 argument was not contained in the existing reply. Limitation was pleaded by the defendant, and a claimant wishing to rebut a pleaded limitation defence should plead the basis of that rebuttal. Pleadings define the issues and enable the opposing party to prepare its factual and legal case.
2. Permission refused. Under CPR 17.1(2), permission was required. Applying the overriding objective in CPR 1.1 and CPR 1.2, the court balanced the possible prejudice to the claimants against the prejudice to the defendant, the need for finality and the effect on other litigants. The new point was raised very late, after evidence and extensive amendment applications. Allowing it would require substantial archival research, possible pleading and witness amendments, further preparation and a minimum delay of about six months. The defendant could not fairly reconstruct cross-examination or call evidence that might have been obtained earlier.
3. The court accepted that the point was potentially arguable but had not decided its merits. The importance of the claims and the age of the claimants did not outweigh the severe disruption and irremediable prejudice. The point was also refused as a matter of case management, even apart from the pleading requirement.
4. Permission to appeal refused. Appeals lie against orders, and the statutory threshold under CPR 52.6(1) was not met. The October 2016 order had been made on the parties’ agreed basis and the new issue had not been pleaded, argued or determined. There was no compelling reason for an appeal under CPR 52.6(1)(b). The claimants’ applications therefore failed.

First-instance procedural decision. The court refused permission to amend the generic reply, refused permission to raise the new limitation point as a matter of case management, and refused permission to appeal the order dated 27 October 2016.