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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 & Commonwealth Office  EWHC 939 (QB) (27 April 2017)
Cite as:  EWHC 939 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Kimathi & others
|- and -
|The Foreign & Commonwealth Office
Mr Guy Mansfield QC & Mr Simon Murray (instructed by The Government Legal Department) for the Defendant
Ms Sophie Mitchell (instructed by Tandem Law) for the Claimants
Hearing date: 11 April 2017
Crown Copyright ©
Mr Justice Stewart :
"An order seeking relief from sanctions on behalf of the Claimants and permitting the claims issued under claim number: HQ16X04046 to be added to the court register and joined with the main action…"
(i) A second statement of Mr Ellis dated 3 February 2017.
(ii) A statement from Kathryn Elizabeth Smith dated 10 February 2017. Ms Smith is a solicitor at the Government Legal Department ("GLD").
(iii) A further statement from Mr Ellis dated 10 March 2017.
(iv) A further statement from Ms Smith dated 24 March 2017.
Outline Chronology of the Litigation
10.12.2014 Amended Generic Defence.
18.12.2015 First 10 Individual Defences served.
February 2016 Remaining Individual Defences served.
March 2016 Amended Individual Particulars of Claim, Amended Generic Reply and Individual Replies served.
[I should add that there were 2 applications in 2014 to add Claimants to the Register after the cut off date. One was unopposed, the other I allowed. Neither has any relevance to this application]
The Nature of the Application
The Procedural Position
"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence."
"…A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the "failure to comply with any rule, practice direction or court order" which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate "all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]"."
"29. The second stage cannot be derived from the express wording of rule 3.9(1), but it is nonetheless important particularly where the breach is serious or significant. The court should consider why the failure or default occurred: this is what the court said in Mitchell at para 41.
30. It would be inappropriate to produce an encyclopaedia of good and bad reasons for a failure to comply with rules, practice directions or court orders. Para 41 of Mitchell gives some examples, but they are no more than examples."
(i) there is a non trivial (now serious or significant) breach and
(ii) there is no good reason for the breach –
the application for relief from sanctions will not automatically fail. This is because rule 3.9(1) requires that, in every case, the court will consider "all the circumstances of the case, so as to enable it to deal justly with the application". The Court must in considering all the circumstances of the case so as to enable it to deal with the application justly give particular weight to the important factors (a) and (b) in CPR 3.9(1).
– see Denton paragraphs 33-35.
"36. But it is always necessary to have regard to all the circumstances of the case. The factors that are relevant will vary from case to case. As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance.
37. …[rule 3.9(1)]…"Nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice. If that were the case then we would have, quite impermissibly, rendered compliance an end in itself and one superior to doing justice in any case".
38. It seems that some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief. This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach…A more nuanced approach is required as we have explained…But the two factors stated in the rule must always be given particular weight. Anything less will inevitably lead to the court slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate."
The Factual Context – Mr Ellis' Evidence
(i) In May 2016 four partners of Hugh James attended public meetings in Kenya arranged by the JEF. The meetings were held in Meru and Maiella.
(ii) Five Hugh James partners attended a number of further meetings in Maiella and Kasikeu between 24 and 26 January 2017. This was after a number of files had been received from IC Law. The partners met collectively with 24 of the 33 Applicants. Statements were taken from them and their claims were discussed. Mr Ellis says that in all cases they confirmed they had been the subject of unlawful detention and/or physical mistreatment including beatings, had instructed GT Law to bring a claim on their behalf and had placed their fingerprints on GT Law retainers in place of a signature, but had not heard from GT Law since that date.
(iii) Partners from Hugh James visited Kenya again in the week commencing 26 February 2017. They met 94 Claimants, including the remaining 9 Applicants not already seen in January 2017. These 9 Applicants confirmed the same position in relation to GT Law as the 24 had done – see (ii) above.
"Whilst we currently only have instructions from a small number of Claimants we can advise that, other than the Claimants personal details, the GT Law ToBs and retainers are identical in all cases."
The Nature of the Applicants' Claims and their Categorisation
(i) Claims brought by the Applicants in their personal capacity.
(ii) Claims brought by the Applicants in their capacity as personal representative of the estate of a deceased relative.
(iii) Claims brought by the Applicants both in a personal capacity and in their capacity as personal representative of the estate of a deceased family member.
I attach to this judgment a short and simplified Schedule analysing the claims. The Schedule also contains footnotes of reasons in some of the cases why GT Law may well not have included the claims in the Register. (See later).
Claims Brought as Personal Representative
(i) TC11 died on 23 August 2013, some seven months before his name was entered on the Group Register on 24 March 2014.
(ii) The claim was brought in the name of TC11's name and not that of his estate.
(iii) At the time when TC11's name was added to the register no valid estate claim could have been brought as the grant of administration in Kenya was made on 28 January 2015 and re-sealed in England on 22 March 2016. An administrator cannot sue unless a grant of letters of administration has been obtained and, in respect of a grant of administration in another jurisdiction, proceedings cannot be validly instituted prior to the re-sealing of the grant in England.
- The date of death of the relevant deceased persons in this application.
- Whether a grant of letters of administration has been obtained in Kenya.
Further, it appears that even if letters of administration have been granted in Kenya they have not been re-sealed in England. In those circumstances the application must fail in respect of those claims on behalf of estates.
(i) In this GLO a distinction has been made by the Lead solicitors between claims brought by Claimants in their personal capacity and claims brought on behalf of a deceased family member. The former are within the GLO, the latter outwith the GLO. The only estate claims which are proceeding are where personal claims were made and entered on the register and that person has since died.
(ii) In this regard, the Lead solicitors made it clear in a witness statement from Mr Cosgrove-Gibson dated 11 March 2014 that claims brought on behalf of a family member who was deceased were not to be within the GLO. This was in the context that another firm of solicitors were proposing to introduce such claims.
(iii) Exhibit FCG1 to Mr Cosgrove-Gibson's witness statement is a radio script of an advertisement which had been published in Kenya between the date of the making of the GLO on 22 October 2013 and the date of Mr Cosgrove-Gibson's witness statement; in other words at least some two months before the then cut off date of the register, namely 30 April 2014. It is emphasised that the criteria which had to be met was that a Claimant "personally must have a claim for compensation", it being stressed "you must have suffered some form of mistreatment…". GT Law are mentioned as one of two other firms progressing claims at that stage.
(iv) A case management conference took place on 12 March 2014. GT Law were represented at that CMC. Mr Myerson QC representing the Lead solicitors referred to a protocol which the Lead solicitors' Claimants adopted. He said that GT Law and the other firm, Knights Law, were adopting the protocol also. The protocol sets out conditions for entry onto the register. Condition 22 of the 30 January 2014 version exhibited to Ms Smith's fourth witness statement is:
"Certification that at the time of entering the claim on the register that they are not deceased."
(v) There is also a witness statement from Mr Peter Wangaki Wena dated 5 March 2014. He represented agents of the Lead solicitors in Kenya. In paragraph 23 of his statement he said:
"Once it is explained that the only Claimants who should come forward are those that can give evidence on their behalf about ill treatment to them personally, the numbers reduced drastically."
Therefore in respect of claims on behalf of the estate where the deceased died before the cut off date of the register, these are impermissible because there are no letters of administration before the Court and/or the grants of letters of administration have not been sealed in England. Further it would not be right for me to exercise my discretion under rule 3.9 because:
- Looking at Denton stage two there may have been no failure or no default by GT Law. Given GT Law's involvement of at that stage and the history which I have briefly set out above, it may well be inferred that GT Law deliberately did not put these claims on the register. This is also relevant to the Denton stage three.
- To add this new type of claim nearly three years after the cut off date would be wholly wrong in all the circumstances of the case. All solicitors involved during this litigation prior to cut off have apparently abided by the decision that such claims will not be litigated. The Test Claimants were selected after a thorough and lengthy process. No Test Claimant is in this category. There would have to be the selection and pleading out of (a) further Test Claimant(s) to deal with evidential arguments and/or further matters relevant to s33 of the Limitation Act 1980.
(i) Angelica Ngito Solomon – Applicant 32
The file states:
"Tony has confirmed that this client's information is correct but the client was not a victim…this file needs to be closed because the client did not suffer from any injuries."
As recorded above the Applicant did not suffer physical injuries. On the schedule her claim is an estate claim only. Her claim is one which was removed from the register. Seen in the context of the history of people who suffered no physical injury, it is difficult to infer that the removal of this Applicant's name from the register was unjustified. This is particularly so given the formality of the step of entering somebody on the register in the first place.
(ii) Kasikwa Kinamu Mbuvi – Applicant 33.
The file states:
"Tony has confirmed this Claimant did not suffer – claim relates to husband only – will remove from register…Tony has provided us with further information on this client. The client is claiming on behalf of her husband and not herself. The client is not a victim. This file needs to be closed….Review: file will be getting closed shortly. I am currently in the process of typing up a limitation letter to send out to the client."
Similar comments apply to this applicant as do the previous applicant. According to the Hugh James's schedule, this Applicant's husband died in the 1960s.
Although it is possible that Applicants number 32 and 33 were removed because of the nature of their claim, this is not clear. Ms Smith's statement of 10 February 2017 at paragraphs 38-44 raises other possibilities. Both Applicants were on the group register served by the Lead solicitors on 30 June 2014. They are referred to as being added to the register on 30 May 2014 and removed on 30 June 2014. The same details are on the register served on 27 May 2015. Ms Smith says (paragraph 41) that on the next update to the register received by the Defendant on 19 May 2016 neither Applicant's details are included. The register no longer contains any reference to GT Law clients and has been amended to reflect the change of solicitors to IC Law and Hugh James. Two other points are made:
a. In support of the second application in 2014 to add Claimants to the register after the cut-off date (see paragraph 7 above) there was a statement from Patrick White, a senior manager of GT Law who asked to re-add 22 Claimants previously removed from the group register. He said that this was because after adding them to the register on 30 May 2014 it became apparent their ID number had been recorded incorrectly on the register. After consultation with the Lead solicitors, GT Law realised that the Defendant had taken the stance that all clients with incorrect IDs must be removed from the register and an application made for late entry. GT Law did this, removed any clients from the register with an incorrect ID number and then made application to re-add them. This application was allowed by the Court in December 2014. None of the 22 includes the three remaining Applicants removed from the Register.
b. In support of the December 2014 application was a witness statement from Tracey Greatorex, a solicitor with the Lead solicitors. This statement is dated 1 December 2014. She refers to an amnesty period agreed between the Lead solicitors and Defendant whereby, if within a month of 30 May 2014 somebody put their name on the register and wanted to come off they could do so without being ordered to pay any costs. She says that 28 GT Law clients were removed pursuant to the amnesty but there is no breakdown in terms of their names. In total 1886 Claimants were removed from the Register.
(iii) Loise Wairimu Kimuthia (Applicant 7)
The file states:
"Paddy has given me permission to close this file as the client ID and first paragraph of her statement says she was born in 1968, but her statement says that she was arrested in 1954? Tony has tried to call this lady but did not get any response, he also chased with the area chief and no one knows who this client is."
It is said that this Applicant sustained personal injury. She was seen on behalf of Hugh James on 26 January 2017 and said that the date of birth on her ID card was incorrect. She said that she was unaware that her claim had not been registered and had never been contacted by GT Law or IC Law. Mr Ellis comments that it is surprising that GT Law had apparent difficulty contacting the Applicant as his firm was able to meet with her without difficulty.
(iv) M'arimi M'kiriinya (Applicant 10)
The file states:
"Closing file as we do not have the information required to proceed with this claim – Paddy authorised."
Hugh James says this Applicant tells them he suffered personal injury. He was not aware that his claim had not been taken forward by GT Law and confirmed he had not received any contact from either GT Law or IC Law.
(v) Martha Muthaga Atanacio (Applicant 11)
The file states: "closing file as we not have (sic) the relevant information to proceed with the claim – Paddy authorised"
This Applicant alleges personal injury and seeks to bring an estate claim on behalf of her deceased husband. She says she did not receive any contact from GT Law or IC Law.
(vi) M'munyua M'twamwari (Applicant 16)
The file states:
"Closing file as there is not enough info to proceed with the claim – Pad authorised."
This Applicant says he was physically injured. He was never contacted by GT Law or IC Law to ask for further information in relation to his claim and says that he was never informed his file had been closed.
(vii) Paskwalina Kanyore M'Mugambi (Applicant 26)
The file states:
"This client has been selected as a Test Case"
(It is assumed that she was in the original large cohort of possible test cases as she is not actually a Test Claimant).
"Tony has confirmed this client was not a victim!! Removing from register…the client did not suffer and has been removed from the register. This file needs to be closed."
According to the Hugh James information this Applicant was the subject of serious physical abuse. She says she did not receive any contact from GT Law or IC Law and was never informed that they were not proceeding with her claim. In fact this Applicant was the third who was added to the register on 30 May 2014 and removed on 30 June 2014; the comments in (i) and (ii) above re Applicants 32 and 33 apply to her.
[It may be that the reference to "Pad" or "Paddy" in some files is a reference to Patrick White who made the statements in support of re-adding claimants to the register in December 2014.]
(i) All Applicants complain of a lack of contact from GT Law/IC Law.
(ii) The client care letters (see below) contain the following statement:
"Alternatively if we decide that your case does not have reasonable prospects of success we will advise you of this and close your file…"
(iii) GT Law did enter on the register some 300 claimants whose files have been passed to Hugh James.
(iv) By reference to the Applicants in the schedule to this judgment there could well have been a good reason in claims not being registered if they were claims on behalf of estates only. That disposes of all but 18 of the Applicants, which is reduced to 17 because Applicant 25 did not apparently suffer personal injury.
(v) There is evidence in the papers of many reasons why potential claimants were not entered on the register. In Mr Wena's witness statement (paragraphs 17 and 18) he says that as at the 3 March 2014 agents for the Lead Solicitors had seen a total of 7130 potential claimants. From this number 1095 were rejected and told that they did not meet the criteria or appeared to have been schooled in what to say during interview process. Further, in proposing the amnesty removing people from the register Tandem Law's letter of 15 May 2014 gave as reasons "Examples may be those who have died, when it comes to light they have received Leigh Day compensation [a reference to the previous Mutua case], they are represented by other solicitors (and neither firm wishes to proceed with them) or perhaps allegations are less severe than first thought." It is of note that these are examples given and, further, that the same sort of reasoning could well have applied to not putting people on the register in the first place.
(vi) There is no evidence that Hugh James have attempted to contact anybody who was at GT Law at the material time in order to assist. As to Mr Onyango, he set up the department for the Kenyan claims at GT Law. He was an employee of GT Law from October 2012 and then became a consultant in April 2013. On the 6 retainers disclosed he is stated to be the then point of contact at GT Law. He finished with them in September 2013 and then moved to Knights Law. Mr Onyango is now employed as a consultant with Hugh James. There is no information from Mr Onyango explaining, in relation to his involvement with GT Law before September 2013, how GT Law operated in terms of obtaining information and keeping in touch with clients etc. Indeed, having regard to the dates when the Applicants may have become clients of GT Law, it is not clear whether Mr Onyango had any dealings with them at that stage. It should be noted that there is substantial evidence that Mr Onyango was intimately involved from the outset with this litigation. He appears to have been responsible for the original idea and to have introduced clients to GT Law, Knights Law and now Hugh James. He also appears to have had a strong financial interest in the litigation.
The Court does not have any of the information originally provided by the Applicants to GT Law in 2012/13 or any further information. I note that in some of the few files disclosed it seems that somebody called "Tony" was receiving and providing information from Applicants in 2014. It is not known if any other of the Applicants communicated with him in that period, or what any Applicant said to him.
In relation to the retainers there are the following points to be made:
(a) The printed information:
- "From the initial information you have supplied it would appear that you have reasonable prospects of success"
- "It is vital that we are able to contact you at all times until your case is settled…"
- Once we receive your signed document pack we….will contact you to discuss your claim in more detail. Following any contact we will then assess the merits of your claim and decide whether or not you have reasonable prospects of success…if we decide that your case does not have reasonable prospects of success we will advise you of this and close your file."
- "Based on your instructions I believe you have good prospects of success…if, however any information should be discovered that changes my initial opinion, I would advise you accordingly."
- "Further instructions" are said to have been invited. There is no relevant factual information in the retainers.
(b) The signing of the retainer was the beginning of the process. An Applicant had to complete a questionnaire, provide an identity card and deal with follow up questions and remain in contact.
(c) It is not known what information was given to GT Law. From the piecemeal information available, including the few files, it appears that GT Law may well have had proper reasons for not including/removing applicants from the register. On the face of the 7 files we have there is evidence of potential good reason, for 14 other Applicants there is (at least on present knowledge) good reason. This leaves 10 where there is no documentary or other information save from the Applicant, except that in 4 of these there are identity card issues.
Further it appears that there are three Applicants (numbers 3, 5 and 16) where Hugh James have not seen a GT Law retainer. Apart from those provided, the Court does not know the identity of those others for whom a copy retainer is held and those for whom a copy retainer is not held.
The Third Stage
(a) The Applicants' submission is that the breach does not prevent the litigation from being conducted efficiently and at proportionate cost and that the addition of the claims will not affect the trial timetable or prejudice the ongoing trial. This is correct in respect of the claims for personal injury by the Applicants. It is not correct in respect of estate claims. If they were permitted, they would require selection of Test Claimant(s) and that would impact substantially on the litigation. Since those applications are not being permitted in any event, I do not deal with them further.
(b) The Court must bear in mind the need for compliance with orders as, to quote Denton "The old lax culture of non-compliance is no longer tolerated." In this GLO, the comments by Thirlwall J (as she then was) in para 17 of her judgment in the PIP Breast Implant Litigation case have particular force.
50.1 The promptness of the application. First, and importantly, the application is far from prompt. The register closed 2½ years before the application was issued. In that period there were numerous CMCs and hearings and the trial was underway for 6 months.
50.2 The Applicants allege that the reasons for the lack of promptness are due to their personal circumstances which are far divorced from the conditions in the UK and due to lack of information from GT Law and IC Law. Even assuming everything in their favour in this regard (which is far from made out) the fact remains that the application is incredibly late. Further, there is some dispute as to whether all the delay could be justified on that basis. The Defendant criticises Hugh James for delay between their first involvement in November 2015, the date of forms of authority instructing Hugh James in December 2015 and the date of issue of this application which was sealed on the 8 December 2016. As can be seen from the Applicants' chronology attached to this judgment the predominant justification for this was lack of communication from IC Law and the complaint made by IC Law to the SRA which was not resolved until 17 October 2016. In relation to this period of some 12 months, I make the following comments:
a. Hugh James requested the transfer of ten files from IC Law by letter dated 23 December 2015. Eight of these were received between 24 March 2016 and 6 April 2016. On 7 April 2016 IC Law told Hugh James that they did not appear to have received the files for two of the Applicants (Applicants numbers 4 and 30). Therefore it was known that these two files probably would not be forthcoming. A request for remaining files held by IC Law was sent by Hugh James on 15 April 2016. It was then that IC Law made a complaint to the SRA. Mr Ellis says (first statement, paragraph 34) that initially it was anticipated that IC Law would provide the files of the various Claimants in order that these could be fully reviewed before an application to the Court was made. However, by 7 April 2016 Hugh James knew that IC Law did not have two of 10 files they requested. It is also of note that the Lead solicitors were not approached until 16 March 2016. This was in respect of ten clients only. Tandem Law replied the same day saying that eight of them were on the group register but two were not (again Applicants numbers 4 and 30). Mr Cosgrove-Gibson of Tandem Law stated: "The two of these are not on the register you would need to make special application and give reasons why they should be put on the register." On 21 April 2016 Hugh James provided a further list of 291 names to Tandem Law and a further 49 on 17 May 2016. Tandem Law responded quickly and told Hugh James that there were a total of 69 names which could not be matched with entries on the group register. Mr Ellis says that he considers it reasonable for Hugh James to seek the files of papers and to review the contents as it was reasonable to assume that the file of papers may have explained reasons for the claim not being placed on the register at all or being removed once it had been on the register. Also he says he believes it is reasonable for Hugh James to have awaited the outcome of the SRA investigation.
b. On analysis:
(i) It took some three months before contact was first made with the Lead solicitors
(ii) As at April 2016 Hugh James had been told by IC Law that they did not have files for two of the Applicants; also Hugh James had been told that the Applicants were not on the Register.
(iii) As a result of a dispute between the Applicants' former solicitors, IC Law and Hugh James at least eight months was lost (April-November 2016 inclusive) before this application was made, including six weeks after the conclusion of the SRA proceedings.
(iv) The Defendant was wholly unaware of what was going on and indeed was not given any notice of this application. Nor was the Court given any notice.
Therefore, some 12 months were lost for reasons which can be categorised as the responsibility of either former or current representatives of the Applicants.
50.3 In the PIP Breast Implant Litigation (paragraph 26) Thirlwall J stated the fact that if the applicants were to suffer loss as a result of the failure to join the group then they would have a strong claim against their solicitors. For reasons which I have mentioned above I am not satisfied that GT Law were in default here. If they were then the Applicants would have a claim over against them. If GT Law were not negligent then reasons for this may well be that the Applicants did not have a good case and/or were themselves responsible for not being on the register. Assuming, for the purposes of this judgment, that GT Law were in default, the Applicants submit that GT Law is in Administration and there is no evidence it has a valid policy of insurance in place. However no enquiries have apparently been made and the expectation is that solicitors who were validly practising would have professional indemnity insurance, something which Leading Counsel accepted in argument. Insurers are named in the 2013 retainer documents. Further, the Applicants say that there would be inevitable prejudice proceeding against those previously acting for them and that any claims would be for loss of a chance which inevitably would result in reduced recovery for the Claimants. Also there would be significant delay for the Applicants, many of whom are elderly. These would not be claims against GT Law for personal injury but rather for professional negligence and would not attract the protection of QOCS. They would be obliged to obtain insurance cover. There is of course some merit in these points, which have for the most part often been argued in respect of claims over against solicitors. I take them into account, but they cannot wholly undermine the argument that, on the Applicants' contention, there would be a valid claim against GT Law. Therefore the Applicants' prejudice is not totally answered by this point but it is partially answered.
50.4 In terms of prejudice to the parties, if the GLO claims fail there will be no prejudice to either party whatever the outcome of the application. If the GLO claims succeed, the Applicants may well lose their right of action and be left only with their less favourable potential claim against GT Law. I do not underestimate this prejudice. As far as the Defendant is concerned, Ms Smith says that there will need to be a process of considering which issues in the test cases were successful and mapping those to the other 40,000+ Claimants. She says this would be a considerable exercise in both time and costs for the Defendant. The costs of 33 additional claims against the cost of the cohort as a whole is likely to be a small percentage of the work, but will result in additional costs and time for the Defendant which is likely to run into a not insignificant sum which she puts at "tens of thousands of pounds". The Applicants point out that no attempt is made to show how this figure is arrived at. Nevertheless, if the Test Claimants are successful, particularly if they are successful only on some issues, there will be a not inconsiderable amount of extra work and cost incurred by the Defendant.
50.5 An additional point is that in respect of 4 of the 17 personal injury Applicants there are very substantial discrepancies as to their age. This point having been raised by Ms Smith, Mr Ellis said (para 88, 3rd statement) that the relevant Applicants have confirmed their dates of birth to him as follows:
- Applicant 7: d.o.b. 1943 (ID card states 1968)
- Applicant 19: d.o.b. 1932 (ID card states 1951)
- Applicant 27: d.o.b. 1933 (ID card states 1960)
- Applicant 30: d.o.b. 1930-1935 (ID card states 1957)
It is true to say that, on the evidence heard by the Court from the Test Claimants and their witnesses, there have been some inconsistencies as to the ID cards, though they are usually of only a few years and not such that the date of birth given on the ID card was during or after the Emergency. A reason given has been that ID cards stated a date a few years after the actual date of birth so as to avoid paying a specific tax prior to Independence. No explanation is provided by Mr Ellis as to the reasons for the discrepancies in these four Applicants' cases. Apart from being a possible reason why GT Law did not put these claims in the register, the important unexplained discrepancies are, for these four Applicants, a yet further factor which militate against the grant of relief.
50.6 The uncertainty over whether there was valid reason for GT Law not putting the Applicants' claims on the register is material, particularly because the claims on proper analysis may be weak or impermissible, as some of them have been demonstrated to be. It may well be that GT Law subjected them to greater scrutiny than has been practicable in all the circumstances by solicitors such as Hugh James, who are late arrivals on the scene of this GLO, and therefore may not be aware of many of its wider aspects. An obvious example of this was the estate claims issue. This uncertainty is therefore a factor in the reasoning not to accede to the applications. It also goes to potential prejudice to the Defendant who, if the GLO succeeds may spend resources weeding out individual claims which should fail.
4/11/13 Group Litigation Order
30/4/14 Cut-Off date for entry on the register
09/10/14 GT Law into Administration ? Administrator = Quantuma LLP ? Claims transferred to IC Law
December 2015 Series of public meetings in Kenya/copies of 30 GT Law retainers provided/Claimants indicate wish to transfer instructions to Hugh James
23/12/15 Letter Hugh James to IC Law requesting transfer of 10 files (unanswered)
12/1/16 Further letter from Hugh James to IC Law requesting files
12/2/16 Phone call Hugh James to IC Law
12/2/16 E-mail from Hugh James to IC law requesting files (unanswered)
16/2/16 Phone call form High James to IC Law -- informed relevant
fee-earners not available
16/2/16 E-mail from Hugh James to IC law requesting files
24/2/16 IC Law indicate they are going to report Hugh James to the SRA
17/3/16 IC Law confirm by telephone that the 10 files requested will now be delivered
23/3/16 5 files received
6/4/16 3 further files received from original 10 files
7/4/16 E-mail from IC Law indicating that they have never received files for the 2 missing clients from the 10 requested
7/4/16 Hugh James ask Administrator to confirm what has become of the 2 missing files
7/4/16 Administrator confirms that all GT Law files relating to Kenyan Emergency Litigation were assigned to IC Law
15/4/16 Request for all remaining files held by IC Law
27/4/16 Letter from IC Law ? they are notifying the SRA
May 2016 4 Partners from Hugh James attend public meetings in Kenya
18/5/16 Tandem Law confirm that 69 names on 2 lists provided by Hugh James could not be matched with entries on the Group Register
14/6/16 Letter from SRA to Hugh James requesting information
29/6/16 Response from Hugh James to SRA providing requested information
7/9/16 Hugh James write to SRA requesting an update on the investigation as Hugh James unhappy to take further steps until SRA have concluded investigation
17/10/16 E-mail from SRA confirming no action being taken against Hugh James
25/10/16 Hugh James letter to IC law requesting release of client files
17/11/16 Hugh James letter to IC Law stating that proceedings for delivery up would be commenced if files not provided
22/11/16 Part 8 Proceedings for delivery up lodged with Senior Courts Office ? 331 files
30/11/16 Current Application issued
2/12/16 Part 8 Claim Form Issued ? listed for hearing on 10/1/17 before Master Gordon-Saker
3/1/17 E-mail form Hugh James to IC Law requesting the files be delivered up
3/1/17 Administrator agrees that IC Law will deliver up the files the
files the subject of the Part 8 claim ? hearing on 10/1/17
adjourned to 1st open date after 14 days by consent
13/1/17 289 files delivered to Hugh James ? late afternoon. Number of additional files received over following week ? 36 files not received ? including the 33 files the subject of this application
14/1/17 Hugh James commence review of files delivered
16/1/17 IC Law suggest that they have never been in possession of the 33 files the subject of this application
17/1/17 Hugh James conclude review of the files
22/1/17 - 27/1/17 5 Partners from Hugh James travel to Kenya & meet 200 clients for whom files have now been now received ? statements taken ? including from 24 of the 33 claimants forming the subject matter of this application
16/2/17 Hugh James receive 8 files from IC Law in electronic format ? 7 of which are linked to the 33 claimants forming the subject matter of this application.
w/c 26/2/17 Partners from Hugh James travel to Kenya & meet the remaining 9 claimants of the 33 who form the subject matter of this application.
Esther Mwihaki Mwangi
Kaome Njara (1)
Loise Wairimu Kinuthia (1), (2)
Michael Ndenderu Waithaka
M'munyua M'twamwari (2)
Mungania Kanampiu (1)
Musyimi Mulwa (1)
Paskwalina Kanyore M'mugambi (2)
Ziphorah Nkunu Samson
Relative and Date of Death
Madalina Muthoni Francis
Husband, date of death unknown
Father, died 1954 (2)
Martha Muthaga Atanacio
Husband, date of death unknown (2)
Priscilla Wayua Mutiso
Husband, date of death unknown (1)
Husband, died 2010 (1)
Relative and Date of Death
Esther Ndunguti Makanga
Husband, died 1964
John Njuguna Mugo
Mother, died 9 June 2014
Kinuu Mbevi Nzyoka
Husband, died in Emergency
Timothy Kitili Munywoki
Father, died 2013
Mary David Musyoki
Mother, died 2000
Paul Kyard Ndisya
Father, died 2015
Husband, date of death unknown
Husband, died soon after released from detention during the Emergency
Husband, died 1979-1989
Salome Wanjiru Kamau
Husband, died during Emergency
Husband, date of death unknown
Angelica Ngito Solomon
Siblings and Parents, died during the Emergency (2)
Kasikwa Kinamu Mbuvi
Husband, died 1960s (2)
(1): Date of birth does not match ID card.
(2): File obtained from GT Law where evidence of reasons for not proceeding with claim.
NOTE: Applicant No 25, Nzioka Ndambuki James says he was arrested and taken to prison in Moshi where he was detained for five months. He was not beaten. There is no allegation of physical injury.