Kimathi & Ors v Foreign and Commonwealth Office [2017] EWHC 3054 (QB)

Case No HQ13X02162[2017] EWHC 3054 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/11/2017
Before
MR JUSTICE STEWART
Between
Kimathi & orsClaimantsForeign And Commonwealth OfficeDefendant
Simon Myerson QC (instructed by Tandem Law) for ClaimantsGuy Mansfield QC and Mathew Gullick (instructed by Government Legal Department) for DefendantHearing Hearing date: 22 November 2017
JudgmentMr Justice Stewart :Introduction
[1]By application notice dated 27 October 2017 the Claimants seek permission to adduce in evidence the contents of chapters 3, 4, 5, 6 and 9 of the book “Scrambled Africa” by Mark Milbank (ISBN: 9781907040757).[2]The application is supported by evidence given in paragraphs 7-24 of the 11th witness statement of Steven Martin. That statement is dated 26 October 2017. Mr Martin is a solicitor at Tandem Law, the Lead Solicitors acting on behalf of the Claimants. In paragraph 7, Mr Martin says that the Claimants seek permission to “to adduce and rely upon” Mr Milbank’s book. This is reflected in the draft order which the Claimants have produced. This provides:
“1. The Claimants have permission to rely upon the contents of chapters 3, 4, 5, 6 and 9 of the book ‘Scrambled Africa’ by Mark Milbank…”
[3]Mr Milbank is a Defendant’s witness. He gave evidence in this trial on 8 June 2017, having previously provided witness statements dated 13 October 2016 and 20 May 2017.

Background

[4]The background to the application as appears from Mr Martin’s witness statement, is as follows: a) Mr Martin has been advised by Mr Cosgrove-Gibson (a member of the Claimants’ legal team) that on 8 June 2017, prior to Mr Milbank giving evidence, Mr Myerson QC (Leading Counsel for the Claimants) introduced himself to the witness. Mr Milbank was then overheard talking to members of the Defendant’s legal team about a book he had written regarding his time in Africa. [Martin paragraph 9]. b) The Claimants then made enquiries which identified the book “Scrambled Africa” published in 2010. They obtained a copy of the book. [Martin paragraph 10]. c) After court on 26 June 2017 (i.e. 2½ weeks after Mr Milbank had given evidence) Mr Myerson informed the Defendant’s legal team that he wished to cross-examine the Defendant’s corporate witness, Alice Lam, about Mr Milbank’s book. [Martin paragraph 11]. d) On the same day, 26 June 2017, the Defendant wrote to the Claimants stating that it did not consider it appropriate for the matter to be raised with Ms Lam in cross-examination, particularly given that this had been first raised the day prior to her evidence, although Mr Milbank had given evidence nearly three weeks earlier. The Defendant suggested that if questions were to be raised about its handling of the litigation, the appropriate way to do it was by way of correspondence. On the morning of 27 June 2017 Tandem Law responded:
“Mr Milbank gave evidence on 8 June 2017. Following the hearing, the witness advised that he had written about Africa. The Claimants therefore made enquiries and were able to identify a book called “Scrambled Africa” published in 2010. The Claimants obtained a copy of the book which was reviewed at the end of last week and then raised with the Defendant in court yesterday. As advised yesterday, the Claimants may raise Mr Milbank’s book during the cross-examination of Ms Lam scheduled today. We note you do not think that is appropriate, but we disagree. The Defendant can object if the matter is raised….” e) Later on 27 June 2017 Mr Myerson sought to cross-examine Ms Lam about the book. The core section of the transcript reads as follows: “Mr Myerson: The Defendants called a witness called Mark Milbank. Did you know whether he had written a book about his experience in Kenya? Mr Justice Stewart: Just pause there. Mr Mansfield: That involves or may involve, potentially at least – and I don’t know what Ms Lam’s answer is going to be – what communications there may have been between the witness and Ms Lam or someone within GLD. We don’t know what relevance it has. Mr Justice Stewart: What I am going to do, Mr Myerson, is I am going to adjourn the question, and Ms Lam can come back and answer it after it has been explored, if you wish. I don’t know what I am treading on – Mr Myerson: As I explained yesterday to those that are on the other side, there are two issues here, one of which we may raise with Your Lordship in any event, which has nothing to do with anyone except Mr Milbank. But the other issue does depend on the answer to the question. Now if the answer is the witness did not know, that’s an end to it. Mr Justice Stewart: It may be. But I am not stopping you asking the question, I am just saying that my antennae tell me that perhaps it should be explored first in correspondence and then if you wish you can make an application and Ms Lam – you are not going anywhere for the next few weeks, are you? Ms Lam: No. Mr Justice Stewart: You might be coming back just for a question. So I don’t think you are any worse off. I just don’t know Mr Myerson. My antennae tell me to be cautious because generally neither you on your side or the Defendants on theirs object unless there is something….” f) On 7 July 2017 Tandem Law wrote: “As highlighted in our first letter dated 27 June 2017, following Mr Milbank’s evidence in court on 8 June 2017, the witness advised that he had written about Africa. The Claimants subsequently identified the book called “Scrambled Africa” published in 2010. …. We note that you invited the Claimants to raise questions by way of correspondence which the Defendant will respond to as fully and promptly as possible. In the circumstances, please respond to the following: 1) At the time of his cross-examination did the Defendant know that Mr Milbank had written a book containing an account of his experiences in Kenya? 2) If so, then who knew? 3) When did the Defendant first find out about the book? 4) If on a different date, when did the Defendant first find out about the content of the book insofar as it related to Kenya? 5) If the Defendant knew of Mr Milbank’s book, was a copy obtained, and if so, when?...”
In the circumstances, please respond to the following: g) The Defendant responded by letter dated 19 July 2017. Specifically in relation to Mr Milbank’s book it said: “f) So far as your first letter of 7th July concerning Mr Milbank’s book is concerned, Mr Milbank’s book, “Scrambled Africa”, published in 2010, would not be a disclosable document nor does the Defendant seek to rely on it. The Defendant has not undertaken searches to confirm whether or not it holds a copy and does not intend to do so in the circumstances. We are unable to respond to questions 1 to 4 in your letter such matters being privileged.” h) On 28 July 2017 the Claimants said that the response avoided addressing the questions raised and asked again that they be answered. They accepted that the book may not be a disclosable document (considering paragraph 32 of the Order 11 December 2014) but continued: “….however the Defendant’s counsel Mr Holborn is on record confirming that had the Defendant come across documents outside the 1950-1963 period, they would have been disclosed – see transcript of the CMC on 1 August 2013 (33-3294). They continued: “We would appreciate confirmation that the Defendant is not aware of any documents that fall outside of the period 1950-1963 and that may be relevant to the subject matter of the litigation, but which have been deliberately withheld or concealed. ” i) On 3 August 2017 the Claimants sent copies of chapters 3, 4, 5, 6 and 9 of Mr Milbank’s book to the Defendant. j) In its letter of 11 August 2017 the Defendant responded on this point restating its position and that it had complied with its disclosure obligations and continued to do so. It continued: “Mr Holborn’s comments on 1 August 2016 are not relevant to this issue. In the passage referred to in your letter, Mr Holborn was addressing disclosure relevant to document destruction, an issue upon which document postdating 1963 might well have been of assistance. The point made was that relevant material emanating from the Defendant outside the 1950-1963 period relating to document destruction would have been disclosed if it had been discovered in the course of the Defendant’s exercise.” k) On 26 September 2017 the Claimants wrote to the Defendants stating: “The Claimants wish to rely upon the above chapters of Mr Milbank’s book, please confirm whether you consent to those documents being adduced. The Claimants only learned of the existence of Mr Milbank’s book at court following his evidence on 8 June 2017, we have therefore obtained a copy of the book and disclosed it to the Defendant as quickly as possible. Should the Claimants be required to make an application to rely upon the contents of Mr Milbank’s book, we wish to be able to address the potential prejudice the Defendant may face by the late disclosure of the document. In the circumstances we consider that you should reply to the points raised in our first letter dated 7 July and second letter dated 28 July as this will allow us to consider the potential prejudice….” (The five questions were then repeated). l) On 12 October 2017 a chasing letter was sent, saying that in the absence of agreement the Claimants would have no alternative other than to make an application to be heard in week commencing 6 November. m) Finally, by letter dated 13 October 2017 the Defendant responded saying that the five questions were responded to in its letter of 19 July 2017; further that it had made it clear in person on 2 October to members of the Claimants’ legal team that it did not consent to the five chapters from “Scrambled Africa” being adduced.

Discussion

[5]The basis of the application is set out paragraphs 19 and 22 of Mr Martin’s witness statement. He says this:
“19. As some of the contents of the chapters in Mr Milbank’s book conflict with the evidence he has given to date in this litigation, that (i.e. the Defendant’s letter of 13 October 2017) was an unsatisfactory response. The Claimants therefore seek permission to rely upon the contents of the ‘Scrambled Africa’ book, and in particular chapters 3, 4, 5, 6 and 9 of the book….. 22. The Claimants believe that consideration of the content of Mr Milbank’s book would assist it in assessing the evidence given to the court. The Claimants might be prejudiced if the additional documentation was not adduced in evidence.”
[6]It should be pointed out that nowhere in the correspondence had it been said that there was a conflict between contents of the chapters in the book and the evidence Mr Milbank had given. The pages of the book sought to be adduced are pages 26-73 (48 pages) and pages 99-114 (16 pages), a total of 64 pages. There is no further indication as to which parts of the book are said to conflict with which parts of Mr Milbank’s evidence. Nor is there any explanation as to the basis on which the Claimants “believe” that consideration of the contents of the book would assist the Court in assessing Mr Milbank’s evidence nor how the Claimants “might be prejudiced” if the chapters of the book were not adduced in evidence. I shall return to this point later.[7]In his skeleton argument Mr Myerson QC said as follows:
“2. Dealing with the Defendant’s factual contentions as set out in the correspondence (referred to in the witness statement), Cs submit: a) There can be no dispute about Mr Martin’s evidence, given that D has not affirmed the contents of that correspondence by witness statement. b) If D knew about the book it was disclosable in the same way that Mr Thompson’s memoir was disclosable, as a further account of the evidence in Mr Millbank’s (sic) witness statement. c) If D did not know about the book then it was not disclosable unless it would have arisen in the course of a reasonable search. That includes the question of what D asked its witnesses when preparing their evidence, as it clearly knew about Mr Thompson’s memoir. d) Absent evidence and given the invocation of privilege it appears that D did know about the book. Saying, “we did not know” cannot be privileged, unless Mr Millbank (sic) had been asked the question and had given a false reply. e) Mr Millbank (sic) discussed the book with members of D’s legal team at Court – Mr Martin paragraph 9. f) D’s position on the separate issue of whether the book can be adduced is misplaced. The book, assuming it for these purposes to be new material, is plainly relevant. It affects both the reliability of the account Mr Millbank (sic) gave and the weight to be attached to his evidence. g) D’s disclosure of equivalent information in respect of Messrs Angove and Nazer has never been said to be a waiver of privilege. Rather, Mr Nazer explained the position, precisely as Mr Millbank (sic) ought to have done. h) D should have agreed the book could be adduced for all the reasons it advanced for Cs to admit the material adduced by Messrs Angove and Nazer, which was (unlike here) discovered late and could not have been disclosed earlier. If those reasons were poor ones, D will no doubt make submissions as to why.” a) There can be no dispute about Mr Martin’s evidence, given that D has not affirmed the contents of that correspondence by witness statement. b) If D knew about the book it was disclosable in the same way that Mr Thompson’s memoir was disclosable, as a further account of the evidence in Mr Millbank’s (sic) witness statement. c) If D did not know about the book then it was not disclosable unless it would have arisen in the course of a reasonable search. That includes the question of what D asked its witnesses when preparing their evidence, as it clearly knew about Mr Thompson’s memoir. d) Absent evidence and given the invocation of privilege it appears that D did know about the book. Saying, “we did not know” cannot be privileged, unless Mr Millbank (sic) had been asked the question and had given a false reply. e) Mr Millbank (sic) discussed the book with members of D’s legal team at Court – Mr Martin paragraph 9. f) D’s position on the separate issue of whether the book can be adduced is misplaced. The book, assuming it for these purposes to be new material, is plainly relevant. It affects both the reliability of the account Mr Millbank (sic) gave and the weight to be attached to his evidence. g) D’s disclosure of equivalent information in respect of Messrs Angove and Nazer has never been said to be a waiver of privilege. Rather, Mr Nazer explained the position, precisely as Mr Millbank (sic) ought to have done. h) D should have agreed the book could be adduced for all the reasons it advanced for Cs to admit the material adduced by Messrs Angove and Nazer, which was (unlike here) discovered late and could not have been disclosed earlier. If those reasons were poor ones, D will no doubt make submissions as to why.”
[8]It is necessary to comment on those submissions.[9]As regards a) it is correct that the Defendant has served no evidence. However, in the Claimants’ letters of 27 June 2017, 7 July 2017 and 26 September 2017, the explanation as to how the Claimants became aware of the book was that following the hearing, Mr Milbank advised that he had written about Africa. It was not until Mr Martin’s witness statement of 26 October 2017 that the account was first given as set out in paragraph 4a above. Even then it is not clear from the statement who on behalf of the Claimants overheard the conversation or to whom in the Defendant’s legal team Mr Milbank is said to have been speaking at the material time. Mr Martin’s witness statement does not on its face refer, as do the letters, to the witness advising following the hearing that he had written about Africa. The question can properly be raised as to why, if the Claimants were aware prior to Mr Milbank giving evidence, he was not asked about it during his evidence and why the Defendant was not put on notice on 8 June 2017, or at any stage until the letter of 27 June 2017. There is no explanation of these matters in Mr Martin’s witness statement, nor any explanation of the conflict between his evidence and the letters as to the circumstances under which the Claimants say they became aware of the book. However, it is the account in his witness statement, signed with a statement of truth, that I must assume is correct.[10]As regards b) – the reason why Mr Thompson’s memoir was disclosed was because the Defendant wished to rely upon it. It was therefore disclosed to the Claimants and adduced by the Defendant in evidence. The Order for disclosure, dated 11 December 2014 stated: “32. The Defendant shall provide standard disclosure by list… limited to the following classes of documents:a. Documents that(1) were produced in the period 1 January 1950 to 31 December 1963 and(2) are presently in the possession of the Foreign and Commonwealth Office; andb. Any other documents on which the Defendant relies.” a. Documents that (1) were produced in the period 1 January 1950 to 31 December 1963 and (2) are presently in the possession of the Foreign and Commonwealth Office; and[11]Therefore Mr Thompson’s book came within paragraph 32b. Mr Milbank’s does not come within paragraph 32. Therefore the points in paragraph 2c.-2e. of Mr Myerson’s skeleton argument do not arise for further comment, I will deal with f. subsequently in this judgment.[12]As regards g. and h. – this assertion is misplaced, seemingly for the same reasons as above. I do not intend to go into great detail about the statements of Mr Angove and Mr Nazer. In brief, both dealt with contemporaneous documents which fell squarely within the Defendant’s disclosure obligations. The 1950s Colonial staff lists in Mr Angove’s case had been disclosed to the Claimants but were not put to him in cross-examination. The Defendant was permitted to rely upon them subsequently so as to correct errors in his previous evidence. As regards Mr Nazer, he discovered further contemporaneous notebooks in his attic after he had given evidence. These were disclosed to the Claimants in accordance with the Defendant’s disclosure obligations.[13]The central point is that Mr Milbank’s book was not a disclosable document pursuant to the Order of 11 December 2014 even if, and I do not know the position, the Defendant was aware of the book. Mr Myerson QC sought to argue that if the Defendant was in possession of the book and knew it might have material differences (or possibly additions) to Mr Milbank’s evidence, then it should have disclosed it. I do not accept this. The Order for disclosure is clear. It envisages that the Defendant may be in possession of non-contemporaneous documentation and that, if the Defendant itself did not rely upon it, then it would not be disclosed. Of course there is a duty not to mislead or to allow a witness to mislead the Court, but there is no evidence or assertion of this. To impose some duty in the nature of that put forward by Mr Myerson would be in effect reverting to standard disclosure which requires, by CPR Rule 36.1(b)(i), that a party disclose documents which “adversely affect his own case”. That was not the Order here and therefore there was no duty to disclose such documents. Should, in those circumstances, the Claimants now be permitted to adduce the book and rely upon it?[14]In McTear & another v Engelhard [2016] EWCA Civ. 487 the Court of Appeal dealt with an application to rely upon late disclosed documents. The circumstances were very different. In paragraph 48, Vos LJ (as he then was) said:
“The question, therefore, is whether the judge was right to treat the application in relation to the new documents as purely one for relief from sanctions. I do not think that he was. The important question was whether, in all the circumstances, the defendants were to be permitted to rely upon them at the forthcoming trial. That depended, amongst other things, on considerations including whether the claimants would have wished to rely on them, the circumstances in which they had not been disclosed before, and their relevance to the issues.”
In paragraph 49, after reciting that in the circumstances there was an excuse for the late disclosure, the Court said that the most important question was whether the Claimants could properly deal with it at the forthcoming trial. It was said that they could have done as they were not very important, had probably already been for the most part in the possession of the Claimants, and did not require any significant work for accountants to digest.[15]The above case therefore gives guidance as to certain important factors. These must be considered, as must the overriding objective as a whole. In that light how do I determine the Claimants’ application?[16]Looking at the factors which the Court of Appeal specifically stated, it is clear that the Defendant does not wish to rely upon the chapters of the book. I do not know if they had previously been in the Defendant’s possession or for how long. I next turn to the circumstances in which the Claimants have not disclosed the chapters before.[17]In this regard the evidence is that the Claimants were unaware of the book until 8 June 2017. Given the somewhat limited duty of disclosure imposed on the Defendant by the December 2014 Order, the Claimants should have been aware that non-contemporaneous books written by witnesses called by the Defendant would not necessarily be disclosed, particularly if the Defendant was not relying upon them. There is no explanation in the evidence as to whether the Claimants took any steps to ascertain if Mr Milbank had written a book. The Claimants accepted that the book could have been found, perhaps with little difficulty had they made searches. Mr Myerson QC said it did not cross the Claimants’ mind that the witness may have produced an account e.g. in a book, to which no reference was made in the witness statement. Further, Mr Milbank was not asked if he had written any memoirs or a book. This is particularly of importance given that, according to Mr Martin’s statement, the Claimants had become aware of the book prior to Mr Milbank giving evidence. Nor was this matter raised with the Defendant prior to Mr Milbank giving evidence or at any stage until some 2½ weeks later. It is not clear, since it is not dealt with specifically in Mr Martin’s statement, from where the suggestion came that the witness following the hearing advised that he had written about Africa – see the three letters referred to above.[18]What is the relevance of the book to the issues before me? At paragraph 2f. of Mr Myerson QC’s skeleton argument he said that the book is “plainly relevant. It affects both reliability of the account Mr Millbank (sic) gave and the weight to be attached to his evidence.” Yet, as I have previously pointed out in relation to paragraph 19 and 22 of Mr Martin’s statement, there is no detail whatsoever as to why the book is plainly relevant, given Mr Milbank’s witness statement and oral evidence; nor, have any particulars been provided as to any potential conflict between Mr Milbank’s book and the oral and written witness evidence which he has already supplied to the Court. Mr Myerson said that no inconsistencies were pointed out because the Defendant had requested that the Court do not read the chapters of the book. However, this would not have prevented the Claimants from, for example, listing a number of points from Mr Milbank’s statement(s) and citing how and where in the book the evidence was said to be inconsistent and/or undermined. As it is, the net result is that all the Court can say is that it can properly be inferred that admitting the chapters of the book would not be completely immaterial.[19]It is further noted that the highest which the witness statement of Mr Martin can put it (paragraph 22) is that the Claimants “might be prejudiced” if the additional documentation is not adduced. There is no specific prejudice or potential prejudice identified.[20]In paragraph 36 of Mr Myerson’s skeleton argument he says that the Claimants do not see the necessity of recalling Mr Milbank but the Defendant can make an application if it wishes. He continues:
“The reality is that Mr Millbank (sic) did not give all the evidence he could give. He should now give it. He ought to explain…why he did not give it. Only at that stage will it be possible to determine whether Mr Millbank (sic) should be recalled.”
I have a number of comments on this approach: (a) Given the lack of clarity as to alleged inconsistency and/or prejudice, it is unclear as to the relevance of the book to the issues. (b) If there are important inconsistencies, then it would not be appropriate merely to have the chapters admitted in evidence as a whole without Mr Milbank having the opportunity to comment upon them. This would require a further statement and possible recall of the witness. (c) If there are other reasons why the book is important because of potential material omissions from Mr Milbank’s evidence (“Mr Milbank did not give all the evidence he could give”), then these could have been particularised. Given the statement that “The Claimants might be prejudiced”, it is impossible for the Court to say (on what is before me) whether this is a point of any real significance. (d) If Mr Milbank had to be recalled, that would be another factor in the timing and proportionality issues, to which I now turn.[21]In my judgment of 27 April 2017 [2017] EWHC 938 (QB) at paragraphs 2-5, I gave an outline chronology of the litigation. Since that date the Defendant’s witnesses have been heard and there have been lengthy applications dealing in particular with amendments to the individual particulars of claim resulting in judgments on 18 August 2017, [2017] EWHC 2145 (QB) and 31 October 2017 [2017] EWHC 2703 (QB). The remainder of the time has predominantly been devoted to the Defendant adducing many lever arch files of documents. There are two substantial applications in the offing and a great deal of work to be done before, in March 2018, extensive final submissions are to commence according to a timetable stretching to Autumn 2018, in respect of the individual test claimants.[22]The disclosure date for the Claimants’ documents was 31 July 2015. By Order sealed on 31 March 2017 (paragraph 20) the Claimants were required to identify the documents on which they rely in respect of their generic case by the close of their case, and in any event by 4pm on 28 April 2017. I have already dealt with the lack of explanation as to what research has been done in relation to any publication made by Mr Milbank. The future timetable is already tight (the Claimants wanted it to be shorter, the Defendant longer). It is not clear how much disruption there would be to this timetable if I acceded to the application. There is no evidence as to this and the lack of particularity in the application does not enable the Court properly to estimate it. If the 64 pages were adduced into evidence perhaps with some indication by the Claimants as to the more material part, Mr Milbank may, as I have said, have to produce a further witness statement. It would then have to be decided whether he was to be recalled. If Mr Milbank had to be recalled, that would add some time, I assume, to the trial timetable. He is now 80 years of age and lives in Dorset. Fortunately, at the time of giving his evidence, he did not have any particular health problems.[23]There is also to be taken into account to some extent the timing of the application from 8 June onwards. I have already mentioned the 2½ week gap before anything was said by the Claimants. The first time the Claimants wrote to the Defendant seeking to rely upon the above chapters of the book was not until 26 September 2017. Although a great deal has been happening in the last few months, the application has not been issued as promptly as it might have been.

Conclusion

[24]Having regard to the overriding objective and the factors specifically referred to in the McTear case, I have concluded this application must be refused. My detailed reasoning is as above but in short:(i) There is no explanation as to what steps (if any) the Claimants have taken to research themselves whether Mr Milbank had written a book. Had they done so it appears that they may well have quickly found that he had. This is relevant as to why the book had not been discovered, disclosed and adduced by the Claimants prior to Mr Milbank giving evidence.(ii) Mr Martin’s evidence and the exhibited letters are not consistent as to when and precisely in what circumstances the Claimants became aware of the book. Assuming his statement is correct, it was prior to Mr Milbank giving evidence. In that case Mr Milbank could have been asked about the book and/or the matter could have been raised on the day he gave evidence.(iii) The relevance of the book to the issues is not at all clear; nor is any potential prejudice which might result to the Claimants if the book is not received in evidence.(iv) If there is some conflict between the book and Mr Milbank’s evidence (un-particularised) then the application would have to encompass the opportunity for Mr Milbank to produce a further statement and to be recalled.(v) The application could, even based on first knowledge on 8 June 2017, have been made earlier.(vi) This very lengthy case still has many demands upon its time.(vii) The overriding objective leads me to exercise my discretion against the Claimants, in view of the fact that the most that can be said on the evidence is that the chapters would not be completely immaterial.

Cited in 1 later judgment