High Court pulls plug on CFA-backed Kenya group action

Foreign Office: “Considerable legal team”

The High Court yesterday dismissed the group litigation brought on behalf of more than 40,000 claimants in the so-called Mau Mau case, after six years of work done by lawyers operating on a ‘no win, no fee’ basis.

Mr Justice Stewart made the decision after his second test case ruling, in which he again declined to disapply the Limitation Act.

The group litigation was brought against the Foreign Office by Kenyan nationals who claimed they were subjected to torture and rape by British soldiers and members of the Colonial Administration in Kenya in the 1950s.

Stewart J decided that the prejudice to the Foreign Office was such that there could not be a fair trial and that this prejudice outweighed the prejudice to the claimant.

Last month, the Court of Appeal refused permission to hear an appeal against the first decision, describing Stewart J’s judgment as “a masterly synthesis of the complex web of facts, and absence of fact” with which it would not interfere.

There were in all 25 test claimants and all but one – who died relatively early in the proceedings – gave evidence and was cross-examined.

Over the course of a trial spanning 232 hearing days, the judge heard oral evidence from more than 60 witnesses. He was taken to more than 3,500 documents by the parties from a pool of more than 40,000.

He handed down 16 reserved judgments on significant issues, including the test case rulings.

The group’s solicitors, Tandem Law – part of Manchester firm Antony Hodari – said it and the barristers were acting under a conditional fee agreement, meaning they have received no payment for six years of work.

The first test case saw three QCs and five juniors line up for the claimants, with one of each – Simon Myerson QC of St Pauls Chambers in Leeds and Mary Ruck of Byrom Street Chambers in Manchester –counsel on the second.

A statement issued by Tandem Law said: “Both judgments in the test cases acknowledge that abuses occurred during the State of Emergency in Kenya. This was accepted by the Rt Hon William Hague MP (the former foreign secretary) and by the defendant’s legal counsel in this litigation.

“It was accepted that the two test claimants were telling the truth, but their evidence has been rendered significantly less cogent due to the passage of time. None of the claimants were accused of making up their account or exaggerating.

“The judge came to his decision despite evidence that there was a deliberate strategy to avoid investigation of abuses at the time, despite such abuses being widely known at a high level of government, and despite decisions not to prosecute abuses at the time.”

The statement noted that the government employed a “considerable team of lawyers” – Guy Mansfield QC of 1 Crown Office Row and Neil Block QC of 39 Essex Chambers led the team at the two test case hearings with an array of juniors.

It continued: “The claimants’ legal team of solicitors and barristers are devastated by the unsuccessful conclusion of the case. They worked strenuously and tirelessly on behalf of their clients.

“As individuals we share the distress and anguish of our clients and reflect on the wisdom of an African proverb: ‘The axe forgets but the tree remembers’.

“The memory of the abuses will live on with the claimants for the remainder of their lives, and will continue to be remembered by the children and descendants of those who suffered. The British government never made any offer to pay compensation to any claimant in this litigation.”

This was the second wave of group litigation over the events in Kenya; in 2015, Leigh Day acted for over 5,000 claimants in obtaining an apology from the British government, £19.9m of compensation, and an agreement that the government would finance the construction of a memorial in Kenya to the victims of colonial era torture.

Leave a Comment

By clicking Submit you consent to Legal Futures storing your personal data and confirm you have read our Privacy Policy and section 5 of our Terms & Conditions which deals with user-generated content. All comments will be moderated before posting.

Required fields are marked *
Email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.


17 December 2020

What do arbitrators know?

How does the Supreme Court’s analysis of ‘inside information’ in Halliburton align with other opportunities for unconscious bias, such as determinations on the admissibility of illegally obtained evidence?

Read More