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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Kimathi & Ors v The Foreign and Commonwealth Office  EWHC 686 (QB) (28 March 2018)
Cite as:  EWHC 686 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Kimathi & ors
|- and -
|The Foreign and Commonwealth Office
Guy Mansfield QC, Neil Block QC & Simon Murray (instructed by Government Legal Department) for the Defendant
Hearing dates: 21 March 2018
Crown Copyright ©
Mr Justice Stewart:
(1) permission to amend was required, and if so should it be granted;
(2) the Court has power to vary the Order of 27 October 2016;
(3) in any event, the Court should permit the Claimants to argue the point having regard to the Order of 27 October 2016. This is a separate case management issue if no permission to amend is required; if permission to amend is required it may form part of whether or not to grant permission to amend.
"(1) To amend the reply to defence, if required, to plead that the correct longstop limitation date in accordance with Arnold v Central Electricity Generating Board…is 4 June 1953 rather than 4 June 1954.
(2) To obtain the permission of the Court to allow the Claimants to argue this point having regard to the Order of 27 October 2016."
On 28 February 2018 the Claimants issued a third Application Notice seeking "permission to appeal against paragraph 1 of the Order………. dated 27 October 2016 so that the Claimants may argue before the Court of Appeal that Claimants with causes of action against the Defendant that accrued between 4 June 1953 and 4 June 1954 are not subject to an absolute limitation bar…."
The Relevant Pleadings to Date and the Order of 27 October 2016
"88. All of the Claimants' claims in tort are time-barred on one or more of the following bases:
(a) There is an absolute time-bar in respect of all claims, whether for personal injuries or not, arising from events that occurred prior to 4 June 1954…"
(b) The Claimants' personal injury claims, insofar as they are based on events on or after 4 June 1954 are time-barred by operation of ss.11 or 12 of the Limitation Act 1980, as the Claimants' dates of knowledge (as defined by s.14) are more than 3 years prior to the issue of proceedings on 28 March 2013…….."
"39. The Limitation Act 1980 must be interpreted consistently with the United Kingdom's international obligations (both under the European Convention on Human Rights and other relevant treaties as well as under customary international law) and in a manner that does not offend fundamental rights by virtue of section 3 of the HRA and the presumption of compatibility and the principle of legality in the common law. The Defendant's interpretation of the Limitation Act as denying the Claimants an effective remedy for torts committed against them prior to 4 June 1954 should be rejected as inconsistent with those principles."
[The original Generic Reply served on 29 January 2015 had been:
"Limitation (paragraphs 89-96)
39. As a matter of domestic law, paragraph 88a of the Defence is correct. The Claimants' case is that the Limitation Act thereby denies the Claimants an effective remedy for torts committed against them prior to 4 June 1954, and is thereby a breach of Article 13 of the ECHR. However:
a. Schedule 2.9(1) of the Limitation Act provides that "nothing in any provision of this act shall (a) enable any action to be brought…"
b. It is for the Defendant to decide if it wishes to rely on a limitation defence and, if so, to plead it as a plea in bar.
c. By so doing the Defendant requires the Claimants to rely on the Limitation Act.
d. The Defendant therefore creates the breach of the ECHR and consequent incompatibility of the Limitation Act with the ECHR.
e. It is open to the Court to declare such reliance an abuse; should the court not do so, it is in breach of its obligations as a public body and is in breach of Article 6 of the ECHR.
f. If the Court does declare it an abuse, the Claimants would not then need to rely on the provisions of the Limitation Act 1980 and there would be no breach of Article 13 ECHR or incompatibility."]
"33. The following preliminary issues are to be dealt with at the start of trial, commencing on 7 November 2016:
(iii) Whether there is an absolute time-bar on claims that accrued prior to 4 June 1954."
The Claimants refer to the fact that on 18 March 2016 the Court stated:
"There is House of Lords authority that causes of action arising prior to 4 June 1954 are time-barred. The Claimants seek to distinguish this. It is agreed that this could be dealt with as a short preliminary issue. "
The Claimants emphasise the sentence "The Claimants seek to distinguish this." However at this stage, and at no stage until December 2017, was the point subject to this application referred to. Indeed it had not crossed the Claimants' horizons as a possibility until late 2017. In this regard it is of note that the skeleton argument for the October 2016 preliminary issue, signed by Messrs Myerson QC and Douglas QC, said at para 7:
"Under the 1939 Act, with some limited exceptions, personal injury claims would become time-barred six years after the cause of action arose, and in the case of public authorities, one year after the cause of action arose. This in effect would mean that claims arising before 4 June 1954 could not now be brought."
"AND UPON the Court having ordered the trial of a preliminary issue by paragraph 33 of the Order dated 18 March 16, namely "whether there is an absolute time-bar on claims that accrued prior to 4 June 1954"
AND UPON the Claimants having conceded that the Court is bound by Arnold v Central Electricity Generating Board  AC 228 and McDonnell v Congregation of Christian Brothers Trustees  UKHL 63,  1 AC 1101, and reserving their position on the preliminary issue for argument in the Supreme Court:
IT IS ORDERED THAT:
1. All claims by Claimants whose names appear on the Register in respect of causes of action that accrued prior to 4 June 1954 are absolutely statute barred, pursuant to the operation of the Limitation Act 1939, the Law Reform (Limitation of Actions etc) Act 1954, and the Limitation Acts 1963, 1975 and 1980 (as amended), save insofar as the causes of action arise from torts committed after 4 June 1954.
2. Depending on the Court's findings of fact, insofar as the causes of action arise from torts committed after 4 June 1954, recovery of damages in respect of the same is not absolutely statute-barred pursuant to the operation of the Limitation Act 1939, the Law Reform (Limitation of Actions etc) Act 1954, and the Limitation Acts 1963, 1975 and 1980 (as amended).
3. For the purposes of any application to appeal this order, time shall not commence to run until judgment in the Test Cases or further Order.
4. The costs of and occasioned by the preliminary issue are reserved until judgment in the Test Cases or further Order."
The Progress of the Case - Overview
(i) Amendments to the individual particulars of claim resulting in judgments on 18 August 2017  EWHC 2145 (QB) and 31 October 2017  EWHC 2703 (QB).
(ii) Further applications resulting in judgments  EWHC 3054 (QB),  EWHC 3379 (QB),  EWHC 22 (QB) and  EWHC 216 (QB).
The Genesis of this Application
The New Legal Issue in Outline
"Thus the critical question to be determined in this appeal is whether anything in the series of statutes dealing with limitation of actions leading up to the 1980 consolidation, each of which was passed to ameliorate aspects of the law believed to operate unjustly, has had the effect of removing retrospectively the bar to the widow's action which accrued to the Birmingham Corporation pursuant to section 21 of the Act of 1939."
"The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of this act or at the time when it would have expired if all the provisions of this act had at all material times been in force, whichever is the later."
"Thus, its effect in relation to actions for damages for personal injuries against public authorities was to apply the new limitation period of three years to causes of action which accrued within 12 months before 4 June 1954, but not to revive any cause of action which accrued more than 12 months before that date and which was already time-barred. Its effect in relation to actions for damages for personal injuries against other defendants was to leave causes of action which accrued between 4 June 1948 and 4 June 1954 subject to the limitation period of six years pursuant to the unamended section 2(1) of the Act of 1939 and to apply the limitation period of three years under the subsection as amended by the proviso only to causes of action accruing after 4 June 1954." (Page 268E-F)
(1) This is a claim against the Foreign and Commonwealth Office i.e. a public authority.
(2) Therefore, prior to the 1954 Act, the limitation period was one year pursuant to section 21 of the 1939 Act.
(3) In accordance with Lord Bridge's above statement, the effect of section 7(1) in relation to actions for damages to personal injuries against public authorities was:
(i) to apply the new limitation period of 3 years to causes of action which accrued within the 12 months before 4 June 1954;
(ii) not to revive any cause of action which accrued more than 12 months before that date and which was already time barred.
(4) Mrs Arnold's case came within (ii) above. It was already time barred more than 12 months before 4 June 1954.
(5) Causes of action which accrued within 12 months before 4 June 1954 i.e. under (i) were subject to the new limitation period of 3 years.
(6) At Arnold page 275C Lord Bridge said:
"Construing sections 2A to 2D of the Act of 1939 in the light of section 3 of the Act of 1975, I think that full effect is given both to the language and to the purposes of the legislation if it is held retrospectively applicable to all personal injury actions previously governed by the three year limitation period under the Act of 1954, whether as then enacted or as amended by the Act of 1963."
(7) Therefore if a test claimant's cause of action accrued within the 12 month period prior to 4 June 1954, this is governed by the three year limitation period under the Act of 1954 and therefore the 1975 Act (and consequentially section 33 of the 1980 Act) are retrospectively applicable to such causes of action.
"The philosophy which was once thought to justify the distinction between public and private defendants in this regard had fallen wholly into disrepute when the distinction was swept away in 1954, and, so far as I am aware, has never subsequently regained any reputable currency. Hence, if the distinction was reintroduced in relation to the retrospective operation of the Act of 1963, it surely can only have been by some accident of inadvertent draftsmanship. It is for this reason that I should strive to avoid construing the Act as effecting such a distinction unless plainly compelled by its language to do so."
(1) Do the Claimants need permission to amend the generic reply?
(2) In any event would this Court permit the Claimants to argue the new point having regard to the Order of 27 October 2016?
(3) Permission to appeal the Order of 27 October 2016 to the Court of Appeal.
"41. In accordance with the overriding objective, the Court is required to ensure that cases are dealt with expeditiously. In view of the uncertainty over the status of the Arnold Order and the scope of the Court's power to vary that order, the Claimants consider that it would be preferable to seek the permission of the Court to appeal the substance of the Arnold Order to the Court of Appeal. The ground for appeal would be that the Arnold Order is founded upon an incorrect interpretation or application of Arnold and thus is wrong as a matter of law because the longstop date should be 4 June 1953 rather than 4 June 1954."
Is Amendment Required?
"Further and alternatively, it is the Claimants' case that Arnold v Central Electricity Generating Board is wrong such that there is no absolute time-bar in respect of claims arising from events that occurred prior to 4 June 1954 (as asserted in paragraph 7a and paragraph 88a of the Re-amended Generic Defence). Further and alternatively, if Arnold v Central Electricity Generating Board is correct, then it only operates to bar claims against public authorities such as the Defendant arising from events that occurred prior to 4 June 1953. "
(i) The preliminary issue ordered on 18 March 2016 was "whether there is an absolute time-bar on claims that accrued prior to 4 June 1954." [Paragraph 11]
(ii) The point at present under consideration is a question of law which arises squarely within the context of the preliminary issue referred to above. "Once a legal issue has been identified as a preliminary issue in litigation, it cannot be right that the parties are constrained by the pleadings in advancing their legal arguments on how the preliminary issues should be resolved by the Court." [Paragraph 13]
(iii) The present pleading is broad enough to encompass this legal issue in the words "The Defendant's interpretation of the Limitation Act as denying the Claimants an effective remedy for torts committed against them prior to 4 June 1954 should be rejected as inconsistent with those principles." Those "principles" included the "common law" and therefore provided for consideration of authorities including those in Arnold and McDonnell [paragraphs 14-16].
(iv) If there is a need to amend the Generic Reply, contrary to the Claimants' primary position, then it should be permitted pursuant to CPR 17.1 (paragraphs 23 and 24).
(v) It was always anticipated that the Claimants might appeal the decision in Arnold. "The Arnold order confirms that the Claimants were reserving their position on the preliminary issue for argument in the Supreme Court" and the preliminary issue was "whether there is an absolute time-bar on claims that accrued prior to 4 June 1954." [Paragraph 26].
(vi) The Arnold Order did not include a requirement to amend any statements of case. If it was envisaged that ultimately that would be necessary it must have been expected after "judgment in the Test Cases or further order" when time to appeal was said to commence. Therefore the Defendant is not prejudiced if an amendment is granted at this stage in the proceedings, rather than after judgment in the Test Cases. As a result of the issue of limitation having been raised by the Court in August 2017, the parties have given further consideration to the issue and "hence the application has ultimately been accelerated and is being made at this stage rather than following judgment of the Test Cases." [Paragraphs 27 & 28]
33.1 The Claimants submitted that, limitation being a matter of law, it did not have to be pleaded. This I reject because:-
(i) It is for a Defendant to raise a limitation defence in its Defence. Otherwise, limitation is not in issue in a case. [See CPR Practice Direction 16 para 13.1]
(ii) Once raised, the burden of proving that the claim is not time-barred shift to the Claimant. See Halsbury's Laws of England (2016) Vol 68 Limitation para 945.
(iii) If a Claimant relies on specific points in rebuttal of the pleaded defence, then those points should be pleaded either in an Amended Particulars of Claim or a Reply. This is not specifically mandated in the CPR but arises from and is supported by:-
- The purpose of pleadings is set out in McPhilemy v Times Newspapers  3 All ER 775 @739; Credit Suisse AG v Arabian Aircraft and Equipment Co  EWCA Civ 1169 para 17. [These citations are referred to later in this judgment. I refer to them here as general statements of principle].
- The practice in this case and generally of pleading to a limitation defence. The parties have both fully pleaded limitation issues and their joint expectation (and that of the court) has been that limitation points in issue would be clear from the pleadings.
- Statements in textbooks – see McGee on Limitation Periods 7th Edition p393 "……if the defendant does plead the statute, then the claimant will need to rebut this plea." Charlesworth & Percy on Negligence 13th Edition "Once the defendant raises the issue that a claim is not brought within time the onus is on the claimant to plead and prove a date which establishes that it is."
33.2 In McPhilemy Lord Woolf also said "after disclosure and the exchange of witness statements pleadings frequently become of only historic interest." That is not the position with many issues in this case. However done, it is essential that the Defendant knows what is in issue and on what basis in order to prepare its case. The Claimants cannot now raise the issue as of right whatever the prejudice to the Defendant or the consequences on the trial timetable. This limitation point is not a pure issue of law. It requires the parties to have foreknowledge of the issues raised, so they can properly prepare their case factually and legally.
(i) Paragraph 39 of the Amended Generic Reply directly challenges the correctness of the proposition that Arnold requires the application of a limitation longstop dated 4 June 1954.
- That is correct.
(ii) The 1953 new point is entirely consistent with the pleaded case that "The Defendant's interpretation of the Limitation Act as denying the Claimant an effective remedy for torts committed against them prior to 4 June 1954 should be rejected."
- This point was preceded by the contention that the Limitation Act 1980 must be interpreted consistently with the United Kingdom's International obligations, and in a manner that does not offend fundamental rights by virtue of section 3 of the Human Rights Act and the presumption of compatibility and principle of legality in the common law. The Claimants say that substance of the new point is consistent with the substance of the challenge to the Defendant's limitation defence as pleaded in the Reply. However, elsewhere in his skeleton argument, Mr Douglas accepts that the Claimants now seek to argue that even if Arnold is not inconsistent with those stated obligations, its proper interpretation in this case is to time-bar absolutely any claims which arose prior to 4 June 1953. This interpretation of what Arnold decided has never previously been (a) pleaded or (b) made clear to the Defendant or the Court. Undoubtedly, all parties and the Court have proceeded on the basis that if Arnold is not to be overturned by the Supreme Court, then the claims must be absolutely time-barred insofar as they arose before 4 June 1954. There is nothing about this point which falls within the Reply on the basis that "The Defendant's interpretation of the Limitation Act as denying the Claimants an effective remedy for torts committed against them prior to 4 June 1954 should be rejected as inconsistent with those principles."
Nor do I accept the submission that the substance of the 1953 longstop issue is consistent with the substance of the challenge to the Defendant's limitation defence pleaded in the existing version of the Reply. Nor the statement by Mr Martin that this is an accelerated application "made at this stage rather than following judgment of the Test Cases." The only application would have been to the Supreme Court to consider whether Arnold and McDonnell were wrong.
(iii) The Claimants state that the 1953 longstop issue falls squarely within the scope of the preliminary issue, namely "whether there is an absolute time-bar on claims that accrued prior to 4 June 1954"; they say that this directly answers that preliminary issue by contending that claims which accrue prior to 4 June 1954 but after 4 June 1953 are not subject to an absolute time-bar. I do not intend to rehearse the history again, but this was no part of any thinking by the Court or any party at any stage prior to the end of December 2017. The preliminary issue has been answered consistently with everybody's interpretation of the pleadings, and of the preliminary issue.
(i) Proactive Sports Management Limited v Rooney  EWHC 1807 (QB) at paragraph 571 "Questions of law are ultimately to be determined by the court and not by agreement or concession."
(ii) Bahamas International Trust Co Limited v Threadgold  1 WLR 1514 where at 1525 Lord Diplock said "the construction of a written document is a question of law. It is for the judge to decide for himself what the law is, not to accept it from any or even all of the parties to the suit; having so decided it is his duty to apply it to the facts of the cases. He would be acting contrary to his judicial oath if he were to determine the case by applying what the parties conceived to be the law, if in his own opinion it was erroneous."
(iii) Reinhard v Ondra LLP  EWHC 1869 (Ch) where at paragraph 22 it is said "the construction of the Contract is a matter of law. I am not bound by any concession or pleaded case about that issue."
(iv) Star Energy UK Onshore Limited v Bocardo S.A.  EWCA Civ 579;  Ch 100 where at paragraph 76 the Court said "That concession of law was withdrawn before us; being a concession of law, we could not be bound by it anyway."
(v) Jariram v Trinidad and Tobago  UKPC 21 where at paragraph 9 the Court said "This concession by prosecuting counsel was a concession in law and, accordingly, not binding on the Court of Appeal."
(vi) Campbell's Trustees v Campbell's Trustees  S.C. 48 where at page 58 the Court said "that is not the end of the matter, for that argument proceeded upon a concession in law which we are not bound to accept and which I feel bound to reject."
Should the Amendment be Allowed?
"(2) Where a statement of case has been served, a party may amend it only –
(a) with the written consent of all the parties; or
(b) with the permission of the Court."
"(a) Ali v Siddique  EWCA Civ 1258, paragraphs 45-47, and in particular Kitchin LJ's statement that where an amendment is sought at trial a Court "will not only consider the prejudice that would be caused to the party seeking the late amendment if it were refused but will also have to have careful regard to the prejudice that would be caused to the party faced with the amendment if it were allowed." This has to take into account the need for corresponding amendment to the other party's pleadings, further disclosure, fresh evidence or adjournment.
(b) Credit Suisse AG v Arabian Aircraft and Equipment Co  EWCA Civ 1169 where Moore-Bick LJ said:
"17. Particulars of claim are intended to define the claim being made. They are a formal document prepared for the purposes of legal proceedings and can be expected to identify with care and precision the case the Claimant is putting forward. They must set out the essential allegations of fact on which the Claimant relies and which he will seek to prove at trial, but they should also state the nature of the case that is to be made in order to inform the Defendant and the Court of the basis on which it is said that the facts give rise to a right to the remedy being claimed…"
The Defendant has consistently said that its researches and the massive resources which it has used in making the researches and responding to the claim have been based on the TCs' pleaded cases."
"41…..In essence, the court must, taking account of the overriding objective, balance the injustice to the party seeking to amend if it is refused permission, against the need for finality in litigation and the injustice to the other parties and other litigants, if the amendment is permitted. There is a heavy burden on the party seeking a late amendment to justify the lateness of the application and to show the strength of the new case and why justice requires him to be able to pursue it…."
[See also paragraphs 42 and 44].
"Essentially, the complaint against the FSA is that it wishes to withdraw an admission or concession: generally the court allows parties to do so provided that they act (and have acted) in good faith and it does not cause prejudice to another party or other unfairness in the judicial process."
I do not see that quotation as adding anything to the fact that the Court must act in accordance with the overriding objective as informed by the authorities I have cited. The proviso is key to what Andrew Smith J said. In this application I believe it is important to set out some brief comments on the overriding objective.
The Application of the Overriding Objective
Factors Relied Upon by the Claimants
a. They succeed as a matter of law on this point.
b. They succeed in any event on either section 32 of the Limitation Act 1980 or section 33 of that Act.
c. They fail to persuade the Supreme Court in effect to overrule Arnold and McDonnell.
I note that the Claimants' estimation (though there is no evidence of this) is that, based on a high level review undertaken by the Lead Solicitors, in the region of 7,000 of Tandem Law's clients may have a cause of action accrued in 1953.
The Process if the New Point is to be Allowed
a. The Court of Appeal would be almost certain to reserve judgment.
b. There is a risk that there would be an appeal to the Supreme Court.
Further effects on the proceedings
(i) It was agreed at the 14 March 2014 CMC (chronology item 5) that the personal injury claims, insofar that they are accrued before 4 June 1954 were statute barred absolutely.
(ii) From 29 January 2015 (chronology item 8), when the Generic Reply was served, the Defendant has been on notice that the Claimants put in issue that absolute time bar as being inconsistent with the ECHR.
(iii) The new point is a completely new point which was not communicated to the Defendant and the court until just before Christmas 2017.
(i) The Order dated 11 December 2014 required the Defendant to provide standard disclosure limited to documents "produced in the period 1 January 1950 – 31 December 1963." The Defendant was therefore required to search for documents for the entire period covered by the Emergency, and hence this would have been included with the period 4 June 1953 – 4 June 1954.
This is not what the order of December 2014 said. It required the Defendant to provide standard disclosure "limited to the following classes of documents; (a) documents that (1) were produced in the period 1 January 1950 – 31 December 1963 and (2) are presently in the possession of the Foreign and Commonwealth Office; and (b) any other documents on which the Defendant relies." The whole purpose of this Order was to narrow the Defendant's disclosure obligation. The effect of (b) is to allow the Defendant, no doubt having regard to the Claimants' pleaded case, to limit its searches and its disclosure.
It is correct that both parties have disclosed/relied upon documents prior to June 1954.
(ii) At the hearing on 26 October 2016 the Court confirmed that, because the Claimants reserved their position on challenging Arnold in the Supreme Court, it would have to make alternative findings as to pre June 1954 and post June 1954 allegations. The Defendant has also pleaded and relied on documents which pre-date June 1954. According to the Claimants' estimate, the Defendant has also identified substantial colonial legislation prior to June 1954.
(iii) Therefore the Defendant has, for a considerable time, been fully aware that each Test Claimant's case would have to be researched and presented having regard to the potential challenge to a cut off date of June 1954. To that end the Defendant has disclosed numerous documents pre-dating June 1954 and has called evidence from a number (the Claimants say at least nine) of witnesses who deal with the period prior to that date.
(iv) For those reasons Mr Martin concludes at paragraph 51 of his 12th witness statement "In the circumstances the Defendant cannot reasonably argue prejudice based upon a lack of evidence or failure to consider evidence during the period June 1953 – June 1954."
"51. In Mr. Robertson's ninth witness statement the Defendant states that it has "focused its documentary searches in the various archives on the basis that the June 1954 limitation bar is absolute and the viable allegations in the Test Cases are those said to have occurred after 4 June 1954" (paragraph 112). However, the Defendant should not be permitted to rely on prejudice that results from a deliberate decision to limit the scope of the Defendant's searches by reference to a 4 June 1954 cut-off in circumstances where: (a) the Defendant was aware that the Claimants disputed the existence of a 4 June 1954 (sic) and intended to appeal against Arnold; and (b) the Court had expressly stated that it would make findings on events both after and before 4 June 1954…
52. Since a challenge to the existence of any limitation longstop has always been anticipated, the Defendant is responsible for any prejudice that arises from a tactical decision it has taken to focus searches on particular periods based on a belief that it has "especially good" prospects of maintaining its limitation defence."
In my judgment this completely misses the point. First, a party is entitled to rely upon pleadings and other developments in the preparation of its case. Secondly, a party is entitled to make tactical decisions. It is correct that the Defendant was aware that there would be a potential appeal against Arnold to the Supreme Court and that the Court would make findings pre and post 4 June 1954. It was not aware of any possibility that Arnold could be said to apply only post 4 June 1953. If in the context of the current pleaded case that tactical decision does not pay off then the Defendant cannot complain. However, it does not lie in the Claimants' mouth to criticise such a decision, made on the basis of the pleadings and the October 2016 Order and the clear understanding of everyone in the case, and to turn it against the Defendant in suggesting that any prejudice arising from the new point being allowed would be its own fault. Thirdly, it will become apparent from my exposition of Mr Robertson's ninth statement, that the tactical decision the Defendant took based on the pleadings as they currently stand was one guided by the risk of Arnold being reversed by the Supreme Court and this Court finding in the Claimants' favour on either section 32 or section 33. The counterbalancing factors which the Defendant took into account were the proper and proportionate targeting of financial and time resources.
I rejected a similar point to this one in my 18 August 2017 judgment –  EWHC 2145 (QB) para 29, 4th bullet point. This is cited later in this judgment.
(i) The approach the Defendant has taken to pleadings, disclosure and documentary case and witness evidence in the Test Cases.
(ii) What the Defendant might have done differently if the absolute time-bar had been pleaded (or ruled) before June 1953 as opposed to 4 June 1954.
(iii) The additional work that the Defendant would need to undertake to address a change in the Claimants' case to 4 June 1953.
(iv) Impact on the trial timetable.
I will summarise points on each of these in turn.
The Defendant's Approach
(i) During searches in 2015 time was saved in the KNA by undertaking a summary, rather than comprehensive, review of pre June 1954 sections of certain files. A targeted review was adopted whereby a junior counsel looked swiftly through the sections of the files to identify potentially important material and then read material from June 1954 onwards in more detail. Junior counsel would probably have changed their approach in relation to a June 1953 limitation date by reducing reviewing time only on pre-June 1953 documents.
(ii) Even this swift review did not take place in respect of all pre-June 1954 material. On the spot judgments were made as to which approach to reviewing files could most sensibly be applied based upon their perceived likely importance to any of the issues in the claim. Pre-June 1954 material was considered less important.
(iii) The Defendant does not have a comprehensive record of which files are affected. The Defendant would have to re-review a number of files previously reviewed to ensure that further material that might assist his case had not been missed.
(iv) Further, a number of files were not reviewed at all either for these proceedings or for the Mutua case. The June 1954 date was a significant consideration in prioritising resources. Mr Robertson says that a recent search of the TNA catalogue for items held there and referencing "Kenya" in the catalogue description for dates between 1950 and 1963 produces 11,841 results, almost all of which are separate files containing numerous documents.
(v) In particular, there are War Office files relevant to army operations during the Emergency which the Defendant thought it relatively less important to investigate in great detail prior to June 1954. These go to generic and Test Claimant issues. Mr Robertson lists a total of 25 such files in the year prior to June 1954. He says that these are a sample collated by junior counsel in the brief period available to file the statement for this application. He says that the list of files to be reviewed would undoubtedly be longer following a full review and that this exercise alone would take many days of work.
(vi) Almost all the 45,000 plus documents disclosed in this litigation have been disclosed by the Defendant which, says Mr Robertson, demonstrates the sheer number of files at the TNA and the KNA that the Defendant has reviewed. The number of documents reviewed is not limited to this and would be much larger. These are the disclosed documents. Mr Robertson therefore says it would be a "huge task to revisit the Defendant's searches to see if there was relevant material the Defendant wished to rely on which had not already been disclosed."
"• On occasions the Claimants suggest that because the Defendant may have had documents in its possession, then they cannot be prejudiced. I do not accept that. A party is entitled to focus on the pleaded case in its utilisation of documents. Also, in relation to further searches of documents which may be necessary, again these are primarily informed by pleadings. This is particularly the case where there are thousands of documents many of which are in the public domain in the TNA or KNA.
• Nor do I accept the Claimants' criticism in relation to the Defendant's need to find new documents because dates are now being specified (or changed). The Claimants say that the evidence from the Defendant's procedural witnesses is that documents were searched for by location and name and there is almost no mention of searches by date. They say that the reason appears to be that so few dates were given and the closest the Defendant came in evidence to searching by dates was in evidence not referred to by Mr Robertson. This was recently given by Mr Murphy, who said that when a date was mentioned the Defendant would search six months either side. He also described substantial cross-checking and double and triple searching based on name and location. The Defendant points to earlier references to searching by date… In my judgment the previous lack of dates does give rise to potential for prejudice. If a date is now specified as a result of documents relied upon by the Claimants, it is not illogical or unreasonable for the Defendant to have to carry out further searches based on the new reasons given by the Claimants for the date/position/decision. This is particularly the case where the un-amended pleading/oral evidence gives rise [on the authorities binding on this court] to an absolute bar because it pre-dates the Arnold v CEGB cut-off date."
(i) The research referred to in the extract from the judgment could only be conducted into documents which the Defendant had previously identified as relevant and included in the database. When preparing pleadings a number of files at TNA and KNA had not been reviewed at all and therefore were not part of the documentation available.
(ii) The interrogation of the database which took place prior to pleading the individual defences was to find documentary evidence in relation to specific allegations by reference to the pleadings, including any pleaded dates.
(iii) An altogether different kind of search was required if seeking whether relevant events, if they occurred, might have occurred at a different point in time. If the searches were to aim at challenging post-4 June 1953 dates for the particular events and occurrences, they would be framed with that purpose in mind and targeted specifically at the pool of documents which relate to the pre-June 1953 period.
What the Defendant Might Have Done Differently
a. Searches for documentary evidence.
b. Searches within the disclosed documentation and its other work in preparing the individual defences (originally already amended).
c. Searching for and proofing of witnesses.
d. Cross-examination of Test Claimants and/or their corroborative witnesses.
An amendment to TC13's individual particulars of claim was permitted in 2017 to change the date of his arrest from January 1953 to April 1954 as part of Anvil. As a consequence of that amendment, counsel investigated in greater detail the evidence to support the originally pleaded timeline (which pre-dated both June 1953 and June 1954), by way of a possible counter to the April 1954 amended dates. The recommended searches to deal with this took 5-6 days in the TNA by junior counsel and two junior juniors. Files from 1952-1954 were searched. Mr Robertson says a further KNA visit would have been desirable, but it was not possible prior to the date for filing the re-amended individual defence. Similar work would need to be done for other related cases, including in particular the Anvil Test Claimants 17, 19, 20 and 26. Further, junior counsel who drafted the amendments to TC13's defence says that the interrogation of the documentary database to test and challenge the amended dates now pleaded by TC13 required probably a week of additional work targeting searches, in that case between late 1952 and April 1954. Mr Robertson says that similar additional work would be required in Test Cases where the change of date to a June 1953 limitation bar raised similar issues (particularly the Anvil Test Claimants).
TC10's Part 18 response pleaded his arrest in the 4th month of 1954, which the Defendant read as being prior to June 1954. The amendment permitted last year pleads a 1955 date and cites some contemporaneous documents. The Defendant has amended its defence, referring to documents, alleging a pre-June 1954 date. The Claimants' written closing submissions for this Test Claimant deal in some detail to support the amendment for his arrest and detention being in 1955 rather than 1954. If the new point is permitted, the Defendant will have to reconsider its approach to this Test Claimant and how it then re-addresses the 1954 date which would not then be subject to the absolute time-bar.
The individual defence, paragraph 16a, responds to paragraph 12 of the individual particulars of claim. In that paragraph the Claimant says that she and her neighbours were forced to walk to Muchungucha camp where they were indiscriminately beaten by Home Guards. The defence pleads that it has identified a document referring to a camp at Muchunguchu stating that, on or before 25 June 1953 the partially built and then unoccupied camp at Muchunguchu was then burnt down by Mau Mau fighters. The Defendant says that with a new time-bar of 4 June 1953, it is clear that a search for further documents would have been conducted to find out whether they establish or indicate a possible pre-4 June 1953 date.
Work the Defendant Would Now Have To Do
The Defendant would need to review afresh how it responds to the allegations in each individual test case. Provisionally, a further month is estimated to accommodate the searches after which would be the analysis of documents and drafting.
(i) The Defendant would have to research whether there is more documentation to assist in this primary submission in respect of the June 1953-June 1954 period.
(ii) The Defendant's case will be argued on the alternative basis – i.e. that there may be evidence which undermines the Claimants (or some of them) proving their case in the 1953-1954 period.
Unless the Defendant has the opportunity to do further research it will not know the extent of such prejudice. However, there is evidence as to how this may be the case set out above in relation to TCs 1, 10, 13, 17, 19, 20 and 26.
(i) Unless the Defendant is given time to investigate properly, then it will not be clear to what extent it is prejudiced.
(ii) TC20 and TC34 have been chosen as the first TC final submissions because of the breadth of issues they deal with. They are not, however, comprehensive. If they were, there would be no need to hear submissions on the other TCs. In addition, it is not reasonable to expect the Defendant to try to compartmentalise its search to TC20 and TC34. Researches in this case need to be able to be done holistically or as the Defendant sees fit, responding when necessary to information trails.
(iii) Further, the 7 TC examples given by the Defendant do not include either TC20 or TC34.
(iv) There is also the potential effect on the generic submissions which are to be heard after the submissions on the individual TCs.
(v) There is no speculation on what the Defendant will have to do in order to try to minimise any prejudice. There is speculation as to what it might/might not discover in further researches. Therefore, at the very least, the trial disruption points are made out.
(vi) There is in any event irremediable prejudice as to (a) what the Defendant may have asked the TCs and their corroborative witnesses about June 53-June 54 period (b) whether the Defendant would have been able to call other witness evidence as to this period.
(vii) Mr Myerson's suggestion would involve the Defendant in pressurised, time-limited further research. The Defendant would not have the opportunity to take proper time and care on these researches. That is not a fair way forward.
(viii) Yet further, it would not be just to require the Defendant to start further researches until the point had been ruled on by the Court of Appeal and then this court. That would almost invariably severely dislocate the further timetable by itself.
Summary on the Overriding Objective informed by the authorities on later amendments
"In order to accommodate the exigencies of a trial such as this and the difficulties for the parties, the Court has accepted a number of departures from the normal trial timetable. Test Claimants' evidence was heard before the Claimants' opening…the number of weeks' medical evidence was interposed and substantial applications have been heard whilst the trial has been up and running. There is a limit to the strains which can be imposed upon the trial process."
Since I said that – and I note that the opening words of paragraph 18 of that judgment included "on latest estimate it (the trial) is not due to finish until early in 2018 at best" – the complexity of and strains on the litigation have continued apace. The time estimate has gone back by more than a year. There are a number of reasons for this and I am not going to go into details. Some of it is due to the Claimants' amendment applications and permitted amendments in 2017. This trial is enormously difficult to manage by the Court and by the parties. Further, substantial, disruption risks making it unmanageable.
"While this is a very important and very substantial case, the overriding objective nevertheless requires in dealing with the case justly and at proportionate cost, that there be as much proper regard as possible to timetables and the need to complete the case."
See also my detailed comments in paragraphs 26-28 and 31 of my 18 August 2017 judgment and paragraph 14 of my 31 October 2017 judgment  EWHC 2703 (QB). Also cf. the comments of Thirlwall J (as she then was) in Holloway v Transform Medical Group (CS) Ltd  EWHC 1641 (QB) at paras 17-30. Even with this disruption, the extent of any remaining prejudice arising from documentary research is unknown.
The Application for Permission to Appeal Pursuant to the 28 February 2018 Application Notice
"17…my conclusion is that it is open to the lower court to grant an extension of time even if the application is made to it after the expiry of 14 days. However, some words of caution are necessary. First, the court should bear in mind the policy behind the limitation of the period for appealing in 52.4(2)(b) to 14 days and 14 days only. This matter was considered by this court in Sayers v Clark  1 WLR 3095, and it is clear that a short time has been set deliberately. The lower court should therefore bear in mind that it is not appropriate, except for good reason, to extend the time beyond the 14 days, although of course there will be cases, such as those referred to in the commentary in the White Book to CPR 52.4(1), where an extension is clearly appropriate."
[Of course the time for appealing is now 21 days]
The Claimants say that paragraph 3 of the Order of 27 October 2016 means that the application is not out of time. I did not hear full argument on this but my opinion is that the Order should not be so interpreted. See Lord Sumption paragraph 16 in Sans Souci v VRL  UKPC 6.
Appendix – Chronology
|1||10 October 2012||First letter of Claimant to Defendant. In the letter it is stated under the heading "background to the claim":
The claim arises from events that followed the declaration of a state of emergency in Kenya in October 1952…" Later in the letter under the heading "Limitation Issues" it says "It is assumed that the vast majority of claims will involve events after 1954 (after Operation Anvil was on 24 April 1954), and thus subject to the Limitation Act 1980."
|2||13 March 2013||Claimant letter written "In accordance with Pre-action Protocol". Under the heading "Defence Giving Rise to Claim", it is stated "We seek to bring claims for damages arising out of mistreatment occurring between 1 July 1954 and 12 December 1964"
|3||2 April 2013||Proceedings issued.
|4||6 September 2013||Defendant serves provisional position statement pursuant to the Order of the Senior Master. At paragraph 4(a) under the heading "Limitation" it states: "There is an absolute time-bar on causes of action that accrued before 4 June 1954."
|5||14 March 2014||Case Management Conference Order. Paragraph 12(b) deals with the selection of "test cases". The parties were to agree 25 test cases "To cover (in their totality rather than individually) the issues set out in Schedule 2 to this Order." Schedule 2 was a "Rolling list of current issues". Limitation was issue B and paragraph 11 stated "Are the Claimants' personal injury claims, insofar as they accrued after 4 June 1954, statute-barred (it is agreed that the Claimants' personal injury claims, insofar as they accrued before 4 June 1954, are statute-barred absolutely)?"
|6||30 May 2014||Amended Particulars of Claim served (pursuant to paragraph 8 of the Order of 14 March 2014).
|7||31 October 2014||Generic Defence served pursuant to paragraph 11 of the Order of 14 March 2014. [See main judgment.] Paragraph 88 pleaded an absolute time bar for all claims arising from events prior to 4 June 1954.
|8||29 January 2015||Generic Reply served. Limitation dealt with at paragraph 39. [See main judgment.]
|9||10 December 2015||Amended Generic Defence served introducing the issue of Double Actionability for the first time.
|10||2 & 3 March 2016||Case Management Conference resulting in the Order of 18 March 2016 ordering the preliminary issue (see main judgment). During the CMC Mr Myerson QC said: "The potential argument is that, having a complete bar on claims that involve torture and inhuman and degrading treatment, inhuman or degrading treatment, is in itself unlawful."
|11||18 March 2016||Amended Generic Reply served. This raised the presently pleaded Claimants' case on the absolute time bar. [See main judgment.] The previous concession that "As a matter of domestic law, paragraph 88a of the Defendant's is correct" was deleted.
|12||June/July 2016||Live evidence of the test claimants either in person or by video link from Kenya.
|13||14 June 2016||Mr Skelton QC (for the Defendant) said the Defendant would not cross-examine the Claimants about un-pleaded allegations and gave reasons for this.
|14||13 October 2016||Claimant files Skeleton Argument. Paragraph 7 states "Under the 1939 Act, with some limited exceptions, personal injury claims would become time-barred 6 years after the cause of action arose, and in the case of public authorities, 1 year after the cause of action arose. This in effect would mean that claims arising before 4 June 1954 could not now be brought."
|15||27 October 2016||Order on the preliminary issue – see main judgment. Mr Myerson QC in Court said that he accepted that there was an absolute time-bar on claims that accrued prior to 4 June 1954 for the purposes of the preliminary issue on the basis that this Court "is going to be bound by the Supreme Court's authorities".
|16||9 March 2017||Claimants apply for permission to amend Generic Particulars of Claim and individual Particulars of Claim (IPOC). Four IPOCs were served later in March 2017.
|17||27 April 2017||Judgment on first amendment application. As regards the IPOCs the Defendant objected (amongst other things) to specifying dates in relation to TC1 and TC30 so that the dates post-dated June 1954. The amendments were permitted on the basis that the IPOCs did not, in their un-amended form, specify particular dates.
|18||June/July 2017||Claimants served draft amended IPOCs for remaining TCs. The Defendant again objected to a number of amendments on the basis that they sought to add or change the date of allegation to after the 4 June 1954 time-bar. (See paragraph 92 of Mr Roberston's sixth witness statement). In his seventh witness statement at paragraph 22(h) he said that where dates are altered primary search may be required in relation to the merits of the original date given by the Claimant "i.e. the plausibility of the event having taken place before June 1954." As regards villagisation he said: "Causes of action are now sought to be pleaded as post-dating the June 1954 time-bar. Had these matters been pleaded in the first place, the Defendant would have focused more of its search upon the movement and villagisation of people prior to June 1954."
|19||1 August 2017||The Court raised the possibility of the Arnold point being determined by the Supreme Court as a leap-frog appeal – see main judgment.
|20||18 August 2017||Judgment in relation to the amendments of the remaining IPOCs.
|21||31 October 2017||Judgment in relation to amendments of IPOCs, primarily on consequential medical issues.|
|22||7 December 2017||Claimant writes to Defendant saying that further enquiries regarding Arnold had been made and that the Claimants would update the Court about the Claimants' position the following week – see main judgment including Mr Martin's explanation for the delay between August and December.
|23||18 December 2017||Issue discussed by Claimants with the Defendant outside court, followed up by letter of same date. See main judgment.
|24||20 December 2017||Defendant's letter in response – see main judgment.
|25||20 December 2017||Matter mentioned in court. Court suggests Claimants make a formal application by 9 January 2018 if they wish to pursue the point.
|26||9 January 2018||This application issued.
|27||10 January 2018||Defendant wrote to the Claimants noting that the application did not seek to amend the pleadings and making observations about delay and other procedural matters.
|28||11 January 2018||Matter raised in court. Mr Myerson QC accepted that the point was a new one. The Court said it was terribly unfortunate that the application had come so late because it could have been timetabled, dealt with and ruled upon and people would know where they stood. Mr Myerson added "…we were as surprised as anyone else. I had not spotted the point."|
|29||15 January 2018||Claimant wrote to Defendant re trial timetable and suggested their application be considered in either week commencing 19 or 26 March.
|30||18 January 2018||Defendant letter stating that the Claimants' wish to vary the 2016 Order on a point which is not pleaded and is not therefore an issue in the proceedings. Further, that the application set out no legal basis upon which to vary the Order of October 2016. The Defendant said that the application to vary the Order of 27 October 2016 could not be scheduled until the pleading point was resolved and the Claimants set out legal basis for that application.
|31||22 January 2018||Issues discussed in court. Mr Douglas QC said the Claimants contended there was no need to amend the pleadings but that the Claimants would make an application in the alternative in case the court considered amendment was required. The Claimants were to submit an amended application by 2 February 2018 with the issues to be considered at a hearing in March 2018.
|32||30 January 2018||Order agreed by the parties and filed at Court. Directions given as to "5. The Claimants shall file an application to amend their Reply with any evidence in support, and to amend the application dated 9 January 2018 if so advised, by 4pm 2 February 2018." Further directions given as to service of evidence and skeleton arguments. The hearing to be listed on Tuesday, 20 March 2018.
[The remainder of the correspondence, the issuing of the application on 2 February 2018 is summarised in paragraphs 2-5 of the main judgment. It is set out in more detail below]
|33||30 January 2018||Claimants emailed the judge's clerk stating "As Mr Douglas QC explained to the Court on 22 January 2018, there is uncertainty in relation to the extent of the Court's power to vary an order…the Claimants are concerned that the resolution of this issue will require significant time and resources in circumstances where the issue could be avoided altogether simply by pursuing an appeal of the Arnold order before the Court of Appeal….The Claimants thus propose to maintain the schedule for dealing with the Defendant's first procedural ground for contesting the limitation long-stop application and, in the event that the Claimants are successful (i.e. because either no amendment to the pleadings is required or leave to amend is granted by judge), then the Claimant would apply to the Court for leave to appeal the Arnold order."
|34||30 January 2018||The Court responded stating "…There are three potential issues – (1) Is permission to amend required and, if so, should it be granted. (2) Has the Court power to vary the Order of 27 October 2016. (3) In any event, should the Court permit Cs to argue the point having regard to the Order of 27 October 2016. This may be a separate issue if no permission to amend is required; if permission is required it may form part of whether or not to grant permission to amend. If Cs wish not to argue (2) then that is their choice on the basis that they are accepting before me that there is no power to vary, but that they would be able to argue the point as an appeal to the CA. However, (1) and (3) need to be determined on 20 March as that may inform whether Cs would need to appeal just (2) above all, if (1) and/or (3) are ruled against them, those points as well. [I have made these points without seeing a response from D and so they are subject to what D says]."
|35||30 January 2018||The Defendant emailed that they agreed with paragraphs 1-3 of the Court's email and with its identification of the three issues for the hearing of the application. It said it would respond substantively after the application and evidence due to be filed and served on 2 February were received and considered. "However, the Defendant strongly opposes the suggestion that any fresh point should be raised on appeal before the Court of Appeal."
|36||31 January 2018||Further email from the Claimant stating "…the Claimants' preferred approach would be to ask the judge for leave to appeal subsequent to the Order of 27 October 2016 to the Court of Appeal, rather than enter into protracted litigation about the judge's power to vary his own Order and the status of that order…"
|37||31 January 2018||Court's email saying that it still seemed that there were the 3 issues and that the judge was happy to list issues 1 and 3. "As to the question of permission to appeal this is contentious, seemingly not on the basis that appeal would be an available route, but on whether permission should be granted. This would also potentially be linked with items 1 & 3. i.e the Court would be less likely to grant permission to appeal if it had decided that amendment was required but should be refused, or that amendment is not required but, because of case management issues, the new point cannot be raised…In those circumstances either all 3 issues set out in the previous e mail can be listed; alternatively issues 1 and 3 can be listed together, as well as whether permission to appeal to the CA should be granted. The question of permission could be heard either at the end of the hearing if the court is able to indicate what its judgment would be on 1 and 3, or it can be listed on hand down when permission to appeal the 2016 Order and, (if appropriate) the Order on issues 1 & 3.
The judge is becoming a little concerned about 'ruling' by correspondence what should be listed. If there remains substantial dispute then perhaps there should be a short hearing listed very soon to iron this out."
|38||31 January 2018||Defendant's email "…The Defendant does not accept that it is appropriate for the Claimants to raise fresh issues set out in Mr Martin's statement accompanying the application dated 9 January on appeal to the Court of Appeal without that issue having been (i) pleaded and (ii) argued and (iii) determined at first instance. The Defendant's position remains therefore that the proper approach is that encompassed by the directions contained in the Order submitted yesterday morning for approval (before the Claimants, without consulting the Defendant, wrote to the Court in the afternoon). It follows that the proper approach is therefore for the matter to be heard for the determination of the 3 issues identified by His Lordship in his email of 15.22 of 30 January 2018. The Defendant has never suggested that there should be an appeal before this Court (at first instance) has determined the issues of the need for an amendment and the power to vary and whether relevant provisions and variations should be granted by this Court. The Defendant's position has always been that this Court has no power to vary the Order of 27 October 2016, but if it has, it should not. The Defendant considers that permission to appeal should not be granted unless and until the Court has given its ruling on the 3 issues identified by His Lordship…" There is further comment about appeal.
|39||31 January 2018||Court's email "The Judge has seen the Defendant's letter dated 31 January 2018. He understands this to be in line with his previous e mails i.e. the 3 issues are those already outlined. If the Claimants do not seek to argue that the Court has power to vary its own order, then that is a matter for them. The Court is, as at present advised, still prepared to consider issues 1 & 3 on the basis that in the High Court they must fail in any event because of Issue 2. This is because, if they wish seek to persuade this court or the CA to grant permission to appeal the Order of 2016, both courts (and the parties) would be better informed if they were aware if this court would or would not allow the amendment/allow the matter to be argued anyway for pleading/case management reasons." Possible alternative are then briefly referred to.
|40||2 February 2018||Claimants' application of 2 February 2018 stating that it amended their application dated 9 January 2018.
|41||6 February 2018||Claimant letter responding to Defendant's letter "The application dated 2 February 2018 replaces the application served on 9 January 2018."
|42||9 February 2018||Claimant reply to Defendant's letter of 7 February 2018. Claimant states "We have not said there is no power to vary, we have said precisely the opposite. However we have confirmed that Stewart J will not need to determine the issues. The Claimants will file an application for permission to appeal."