Dancan Murithi & Ors. v AVH Legal LLP (t/a Tandem Law) & Ors.

Summary judgment is appropriate where a pleaded professional-negligence claim has no realistic prospect of success on the evidence and established decisions show that the alleged breach could not have caused a different outcome. A collateral challenge to earlier civil decisions is an abuse of process where permitting relitigation would bring the administration of justice into disrepute, even though the later defendants were not parties to the earlier proceedings.

Applications alleging that evidence should have been adduced must identify the evidence that was available and explain how it could have affected the result. A randomised test-case process is not negligent merely because particular categories of claim were absent from the final cohort, especially where the earlier court knew of those categories and its reasoning applied equally to them.

The claimants had been participants in extensive group litigation against the Foreign and Commonwealth Office arising from the Kenyan Emergency. That litigation was dismissed after Stewart J declined to exercise the discretion under section 33 of the Limitation Act 1980 in two test cases, and the remaining claims were brought to an end.

The claimants subsequently sued their former legal representatives and associated advocates. They alleged that the defendants negligently selected and managed the test-case cohort and failed to obtain adequate evidence concerning delay for the section 33 application. They also claimed damages for CFA success fees. The defendants sought summary judgment and strike out. The central questions were whether the claims had a realistic prospect of success and whether pursuing them would constitute an abusive collateral attack on the earlier decisions.

1. Summary judgment principles. The appropriate test was whether the claims had a realistic, rather than fanciful, prospect of success. The court must avoid a mini-trial, but may decide a short point of law where the necessary material is available. Applications alleging that a claim has no realistic prospect of success should ordinarily proceed under CPR Rule 24 rather than CPR Rule 3.4(2)(a) ([107]-[120]).
2. Section 33 evidence. Most alleged evidential deficiencies concerned submissions, matters already established by documents, or matters for which no further evidence was identified. Although there was an arguable case that adequate direct evidence explaining delay had not been adduced, the claimants neither pleaded nor demonstrated what evidence any test claimant could have given. More importantly, Stewart J had expressly considered the effect of assuming that all pleaded reasons for delay were established and concluded that his decision would have been the same. His reasoning also showed that the prejudice to the FCO made a fair trial of the core allegations impossible and outweighed the claimants’ prejudice. The causation case therefore had no realistic prospect of success ([121]-[146]).
3. Collateral attack. The section 33 claim also constituted an abusive collateral attack. The issue whether better evidence would have changed the result had already been carefully considered by Stewart J. Relitigating that issue would bring the administration of justice into disrepute ([147]-[152]).
4. Test-case selection. The alleged absence of rape cases was factually mistaken, and castration cases had been included in the original cohort and were known to Stewart J. The nature of those injuries did not make them uniquely suitable test cases. The earlier judgments applied equally to rape and castration claims, and there was no realistic prospect that the FCO would have made admissions merely because such cases were included. The claimants had not pleaded a viable case that the defendants should have prevented TC34 and TC20 from being the first cases decided ([153]-[164]).
5. Further abuse and other loss. Challenging the judge’s selection and the order ending the Kimathi litigation would bring the administration of justice into disrepute. The Fourth Claimant’s case failed for the same reasons. The CFA success-fee claim was not a separate head of loss: any recoverable success fee would instead affect the credit for irrecoverable costs ([165]-[169]).
6. Disposition. Summary judgment was granted for the defendants on both principal issues. Alternatively, those parts of the claims were struck out under CPR Rule 3.4(2)(b) as an abuse of process ([170]).