High Court dismisses first test case in second wave of Mau Mau claims

High Court: Litigation was not an inquiry

The High Court has dismissed the first test case brought as part of a second wave of Mau Mau group litigation, following the British government’s settlement of over 5,000 claims for £19.9m in 2013.

Mr Justice Stewart said the government’s ability to defend itself had been “severely compromised” by the time taken by the claimant, referred to as TC34, to launch proceedings since his alleged torture and mistreatment in the 1950s.

“Had the claim been brought in time, or even at some stage during the mid-1960s, the evidence available to the defendant, both documentary and witness, would have been much greater.

“It is difficult, given the loss of witnesses and documents over time, to determine up to when there could have been a fair trial of some or all of TC34’s claims. What is clear is that there cannot now be a fair trial of any of the core allegations. That is because of the delay.”

Stewart J said limitation was a “critical issue” in TC34’s personal injury claim, in particular section 33 of the Limitation Act 1980.

Tandem Law – part of Manchester firm Antony Hodari – acted for TC34 and has thousands more claimants lined up. Leigh Day acted on the 2013 settlement, which followed a decision rejecting the government’s argument that the claims were time-barred.

Delivering judgment in Kimathi and others v the Foreign and Commonwealth Office [2018] EWHC 2066 (QB), Stewart J said it was important “to say at the outset that this litigation is a court process” and “not an inquiry”.

He said the government had admitted abuses, “as a result of which people suffered grievously”, but the latest claims “must stand or fall on established principles of civil litigation”.

He said “advertisements and surrounding publicity” leading to the group litigation order “probably inform me as to why TC34 has now brought his claim”.

Stewart J said the problem with all the submissions on behalf of TC34 was that “there is just no evidence”, while “clearly there was evidence from the claimants” in the earlier Mau Mau group litigaton in Mutua, which led to the British government’s compensation award.

“Why there is not in this case, I do not know. Reasons for delay are not self-proving. It is also unsatisfactory to be asked to draw inferences when claimants have given written and oral evidence and have said nothing on the reasons for their delay.”

Stewart J said: “The defendant had no notice whatsoever of TC34’s core allegations until more than 50 years had passed, and when its ability to investigate and defend has undoubtedly been severely prejudiced.”

The judge said TC34 had not proved in respect of any of his core allegations that his prejudice would outweigh that of the defendant.

“The prejudice to TC34 in losing the chance of establishing his claims is of substantial importance. Those claims, though diminished in cogency for the reasons I have given, cannot be demonstrated to be lacking in merit.”

However, Stewart J said that “on the evidence I have in TC34’s case, it is not possible to explain the reasons to extend time for a period of over 50 years”.

He said his decision would have been the same even if he had been able to “put into the balance all the reasons for delay which had been pleaded in the reply”, and others which were the subject of the claimants’ submissions.

He refused to exercise his discretion and extend the limitation period.

Both sides had huge teams of counsel: for the claimant there were three QCs – Simon Myerson, Bryan Cox and Andrew Haslam – plus five juniors, while the government had two QCs – Guy Mansfield and Neil Block – and seven juniors.

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