“4. Database of Claimants [AVH] shall by 4pm on30 June 2014 serve on [the FCO] an electronic database, in an agreed format… in respect of 10% of Claimants randomly selected by a method to be agreed, by30 May 2014 , from the total Claimant cohort… 12. Selection of test cases The Defendant and the Claimants shall: (a) By 4pm on31 July 2014 , have selected, at random, 100 cases from the database of Claimants produced pursuant to paragraph 4 above for assessment as potential test cases, such cases to cover (in their totality rather than individually) the issues set out in Schedule 2 to this order; (b) By 4pm on31 October 2014 , have agreed which 25 of the 100 randomly selected cases will be test cases for determination at trial, such cases to cover (in their totality rather than individually) the issues set out in Schedule 2 to this order.” [AVH] shall by 4pm on30 June 2014 serve on [the FCO] an electronic database, in an agreed format… in respect of 10% of Claimants randomly selected by a method to be agreed, by30 May 2014 , from the total Claimant cohort… The Defendant and the Claimants shall: (a) By 4pm on31 July 2014 , have selected, at random, 100 cases from the database of Claimants produced pursuant to paragraph 4 above for assessment as potential test cases, such cases to cover (in their totality rather than individually) the issues set out in Schedule 2 to this order; (b) By 4pm on31 October 2014 , have agreed which 25 of the 100 randomly selected cases will be test cases for determination at trial, such cases to cover (in their totality rather than individually) the issues set out in Schedule 2 to this order.”
“33. The hearing of the Test Case closing submissions be listed in accordance with the timetable attached. 34. The parties are to address in their Test Case closing submissions, insofar as is practicable: a) All issues under [s32 and s33] that relate to each individual Test Case; Such generic or common issues under [s32 and s33] as touch upon each individual Test case.” a) All issues under [s32 and s33] that relate to each individual Test Case; Such generic or common issues under [s32 and s33] as touch upon each individual Test case.”
“1. Subject to subsection (3) … below, where in the case of any action for which a period of limitation is prescribed by this Act, either…” (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant… the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it…”
“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which— (a) the provisions of section 11or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates… (3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to— (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.” (a) the provisions of section 11or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
“The court may give summary judgment against a claimant … on the whole of a claim or on a particular issue if (a) it considers that (i) that claimant has no real prospect of succeeding on the claim or issue; or…; and b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; [or] (b) that the statement of case is an abuse of the court’s process …” (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; [or] (b) that the statement of case is an abuse of the court’s process …”
“(1) those which set out no facts indicating what the claim is about, for example ‘Money owed£5000 ’, (2) those which are incoherent and make no sense, (3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.”
“A party may believe they can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the interpretation of a document). In such a case the party concerned may make an application under rule 3.4 or apply for summary judgment under Part 24 (or both) as they think appropriate.”
“Where a judge at a hearing strikes out all or part of a party’s statement of case he may enter such judgment for the other party as that party appears entitled to.”
“(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally…”
“The Claimants claim damages from the Defendants, who acted for the Test Claimants in the Proceedings pursuant to the GLO, in respect of their lost opportunity to recover substantial damages in the Proceedings. The Claimants lost that opportunity because of the errors and omissions of the Defendants and each of them…which acts and omissions constituted breaches of the Defendants’ duties to the Claimants.”
“The intention of the Court in making [the Order of14 March 2014 ] (supported by all parties to the Proceedings) that the Test Claimants, as randomly selected and thereafter agreed between the parties to the Proceedings, should comprise a cohort which accurately reflected the range of claims made by the Claimants in the Proceedings. The Claimants rely without limitation on paragraph 426 of the judgment of Stewart J on the case of Test Claimant 34.”
“Properly prepared evidence on this approach would have included the following matters:a. The length of and the reasons for the delay. Proper evidence would have relied on the following matters to which the Test Claimants could have spoken: i. The vulnerability of the Test Claimants as aged and the victims of trauma;ii. The fact that the Test Claimants were unsophisticated, largely illiterate, and were not aware (and could not reasonably be aware) from their own knowledge that a claim might be capable of being brought against FCO until that possibility was brought to their attention by advertisement of the litigation in compliance with the GLO; iii. The impecuniosity of the Test Claimants and their inability to pay for legal and other expert advice from their own resources; iv. The proscription of MM under the law of Kenya until 2003 and the cultural factors (including the culture of secrecy imposed by MM and the unwillingness to revisit the effects of the Kenyan Emergency without good reason), which inhibited the Test Claimants from discussing the events of the Kenyan Emergency and/or seeking advice in relation to the possibility of obtaining redress…” i. The vulnerability of the Test Claimants as aged and the victims of trauma;ii. The fact that the Test Claimants were unsophisticated, largely illiterate, and were not aware (and could not reasonably be aware) from their own knowledge that a claim might be capable of being brought against FCO until that possibility was brought to their attention by advertisement of the litigation in compliance with the GLO; iii. The impecuniosity of the Test Claimants and their inability to pay for legal and other expert advice from their own resources; iv. The proscription of MM under the law of Kenya until 2003 and the cultural factors (including the culture of secrecy imposed by MM and the unwillingness to revisit the effects of the Kenyan Emergency without good reason), which inhibited the Test Claimants from discussing the events of the Kenyan Emergency and/or seeking advice in relation to the possibility of obtaining redress…”
“(i) The defendants were negligent in permitting the selection of the cohort of 40 Test Claimants. In particular, they allege that this cohort should have included, but did not include, “Rape claimants” (claimants who alleged they had been raped) and/or “Castration Claimants” (claimants who alleged they had been deliberately caused either a “testicular removal injury” or a “testicular injury causing impotence or structural damage to a testis”) (ii) They were negligent in causing or permitting the preparation of witness statements for the Test Claimants that were deficient, in that they failed to include evidence relevant to the factors set out in s.33(3).”
“do not accept that the number of Castration Claimants and Rape Claimants should have appeared in the Test Claim cohort in the same proportion as they appeared in the whole of the GLO Claimant cohort. It was essential that a sufficient number of such Castration and Rape Claimants be included so as to achieve a position whereby such a Claimant would be amongst the first claimants to be tried.”
“Could and should have (i) ensured the inclusion of a Castration Claimant in the Test Claimant cohort…”
“In relation to the selection of Test Claimants, the Claimants rely on the fact that by paragraph 19 of his order dated18 March 2016 , Stewart J varied his order of14 March 2014 concerning the selection of Test Claimants, and in particular the categories of Test Claimant. The Claimants say that, had the First Defendants acted with proper care and skill, the order of Stewart J would have made further variations to the effect pleaded at CPC 37.”
“This language appears to suggest that a strike-out application underCPR 3.4 may be made where a party believes that his opponent’s case has no real prospect of success on the facts. This is, to put it mildly, very odd as a dismissal of a case in such circumstances is precisely whatCPR 24.2 is for, as will be seen. The Family Procedure Rules contain similar provisions (but no provision for summary judgment). FPR 4.4(1) contains very similar strike out provisions to those inCPR 3.4 (2).FPR PD4A paras 2.1 – 2.3 are near replications ofCPR PD3A paras 1.4 – 1.6. Para 2.4 is very similar toCPR PD3A para 1.7…These family rules and practice directions were very recently considered by the Supreme Court in Wyatt v Vince[2015] UKSC 14 . At para 27 Lord Wilson JSC describedFPR PD4A para 2.4 as “an unhelpful curiosity”
“I suggest that Rule 4.4(1) of the family rules has to be construed without reference to real prospects of success. The three sets of facts set out in paragraph 2.1 ofPractice Direction 4A exemplify the limited reach of rule 4.4(1)(a), valuable though no doubt it sometimes is. The touchstone is, in the words of paragraph 2.1(c) of the Practice Direction, whether the application is legally recognisable. Applications made after the applicant had remarried or after an identical application had been dismissed or otherwise finally determined would be examples of applications not legally recognisable. Since the greater includes the lesser, it is no doubt possible to describe applications which fall foul of Rule 4.4(1) as having no real prospect of success. Nevertheless paragraph 2.4 of the Practice Direction remains in my view an unhelpful curiosity which cannot override the inevitable omission from the family rules of a power to give summary judgment.”
“Collateral challenges to prior decisions ex hypothesi do not give riseto res judicata estoppel. For the purposes of this judgment, a collateralchallenge is one where no matter how similar the issue in question theparties to the later dispute are different from the parties to the earlier dispute that is the subject of the collateral challenge.”
“(a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court… (c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such re-litigation would bring the administration of justice into disrepute.”
“If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge in the earlier action if (a) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (b) to permit such re-litigation would bring the administration of justice into disrepute.”
“As [counsel] rightly reminded me, the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal BromptonHospital NHS Trustv Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals &Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“…it does not follow from Lewison J's seventh principle that difficult points of law, particularly those in developing areas, should be grappled with on summary applications... Such questions are better decided against actual rather than assumed facts. On the other hand it may be possible to say that the trajectory of the law will never on any view afford a remedy.”
“A court must hesitate to make final decisions without a trial if there are reasonable grounds to believe a fuller investigation of facts would add to or alter the evidence available to a trial judge and so potentially affect the outcome of a case. At the same time, “there must be something going beyond bare Micawberism … it is not a legitimate tactic to proceed to court on vague allegations of wrongdoing in the hope that cross-examination will elicit some bonus admission” (Hunt v Times Newspapers[2012] EWHC 110 (QB) at paragraphs 28-29).”
“141…[A]part from TC34’s education and relative lack of sophistication and theadmitted fact that Mau Mau was proscribed in Kenya until 2003, none of thatevidence has been adduced in the present case. It must be recalled that in Mutua section 33 was dealt with as a preliminary issue. Here it is being dealt with after all the evidence has been presented.142. It is not permissible for me to translate findings in Mutua to this case. I do not have any of the evidence that was in Mutua to support the findings. There has been no exploration of whether the proscription, viewed subjectively, was or would have been a factor or regarded as a risk, by TC34, or any Claimant who had assisted the Mau Mau during the Emergency, but who had had nothing to do with them since. Even looking at the terms of the proscription as recorded in Mutua [33], I do not know whether, objectively speaking, such a person would (or might) have fallen foul of the proscription.”
“[T]he advertisements and surrounding publicity leading to the GLO probably inform me as to why TC34 has now brought the claim. They do not inform me as to why TC34 did not before bring the claim. The problem with all these submissions is that there is just no evidence from TC34. Clearly there was evidence from the Claimants in Mutua. 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. Indeed, drawing inferences in such circumstances, when the matter could, and on the authorities should, have been addressed, is something which should only be done if the inferences are compelling. It may be the case that the Claimants were in the position for which their lawyers contend, but in the absence of direct evidence it would be wrong to infer that all, or any, were. As the Defendant said, why should the court draw inferences when TC34 did not say what the reasons were and, therefore, his evidence was not tested?”
“In TC34’s case, the length of the delay is up to 56 years. I am not able to find any reasons for the delay, there being no evidence as to such, save for during the period while TC34 remained in detention. It is not permissible to draw any further inferences. Apart from that period, I cannot put into the balance, when exercising my discretion, any good reason excusing the delay. The relevance of that period will have to be explored when I look at cogency of the evidence. I will, however, take into account TC34’s relative lack of education and sophistication when I carry out the section 33(1) balancing exercise.”
“Reasons for delay are not self-proving. No express evidence was given by TC 20 about the reason(s) for the delay in her case. It is unsatisfactory to be asked to draw inferences when TC 20 gave written and oral evidence and did not address the matter. Any such reasons were not therefore in evidence so that they were available to be tested in cross-examination.”
“...specifically as to the Section 33 discretion under theLimitation Act 1980 , this particular Claimant (TC34) relies on the following in addition: (a) He is a victim of trauma and is thereby vulnerable;(b) The Claimant could reasonably only be said to be aware of a possible claim of merit against the Defendant after the claim was advertised by Order of the Court and aired on Kenyan Radio in November 2013;(c) The Claimant is impecunious and was unable to pay for the legal advice in Kenya;(d) He is unsophisticated and from a rural area and would not have the means to approach lawyers in England; (e) He could not reasonably be expected to believe that he could bring a claim against the British government, or that he would be compensated;(f) It was illegal to be a part of or speak of Mau Mau in Kenya before 2003 and the Claimant would have faced possible legal consequences or retribution had he attempted to raise his complaints; and(g) Had he attempted to do so, he would have faced insuperable difficulties and would have been at such a disadvantage vis a vis the Defendant as to prevent him being in a realistic position to bring a claim. The Claimant will rely upon the Defendant’s conduct of this litigation in support of this pleading.”
“The Claimants argued that, even if the Reply is not evidence, it is “there” and I should take it into account. I do not know how I can take into account something which does not constitute evidence…”
“I should add that my decision would have been the same even if I had been able to put into the balance all the reasons for delay which had been pleaded in the Reply, and the others which were the subject of the Claimants’ submissions. These reasons, and others if evidenced, may well also have had an effect in TC34’s favour under section 33(3)(e) and (f). Nevertheless, the unfairness to[483] in the judge’s judgment the Defendant in defending TC34’s core allegations would have still outweighed the prejudice to TC34. Even with those reasons to qualify or temper the prejudice to the Defendant, it would not have been fair and just in all the circumstances to expect the Defendant to meet the claims on the merits.” (Emphasis added.)
“6. …The first ground of appeal apparently therefore raises an academic question only, unless it can be said to be arguable that the judge failed adequately or at all to balance the undoubted delay against the prejudice suffered by the defendant.7. Mr Myerson QC for TC 34 submitted that the judge had taken an over-technical approach to the question of delay since the matters set out in the Reply “were there verified by a statement of truth” and other claimants (Nos. 1, 10, 19, 22, 24, 25, 26 and 39) had given evidence saying that what they had said in similar terms in their replies was true. There is some force in that submission but if, as the judge said, his decision would have been the same even if he had put into the balance all the reasons for the delay which has been set out in the Reply, that cannot take Mr Myerson far. His main submission was that the judge failed to acknowledge and weigh the strength of the reasons for the delay and the fact that 75,000 Mau Maus had been detained in circumstances in which (as the Government had admitted in the Mutua case) undoubted atrocities had occurred in coming to his conclusions about the balance of prejudice. … 8. I do not think it arguable that there was any such failure on the part of the judge. He was well aware of the Mutua litigation and the cogent reasons given by the claimants in that case not merely for the delay but for showing that their allegations were true (perpetrators, named camps and times of detention were precisely identified) ... But the judge for the purpose of para 483 expressly assumed that he was “able to put into the balance all the reasons for the delay” and therefore proceeded in the assumption that the reasons showed that the delay was excusable…There is, therefore, nothing in the first proposed ground of appeal.”
“the strong probability is that the Defendant would have been in a verysubstantially better position to defend the core allegations well into the mid-1960s. As time has passed, so the ability to defend has diminished, such that it is now essentially impossible for the Defendant to have any proper opportunity to find documentary or witness evidence with real relevance to the core allegations.”
“479. The effect of the delay in issuing the claims on the cogency of TC34’s evidence and, in particular, on the evidence of the Defendant is very significant. The Defendant has had no fair opportunity to investigate the core allegations. There was probably some additional effect before the expiry of the limitation period. This can be taken into account. My decision would, however, be the same without this additional effect.480. The Defendant’s ability to defend has been severely compromised by the delay. 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.481. 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. Had the claim been brought in, say, the 1970s or even later, the evidential position then obtaining would have had to be examined in the sort of detail in which it has now been done. What is clear is that there cannot now be a fair trial of any of the core allegations. That is because of the delay.”