“26. Postponement of Limitation Period of Fraud or Mistake Where, in the case of any action for which a period of limitation is prescribed by this act either… (a) The action is based upon the fraud of the Defendant or his agent or any person through whom he claims or his agent, or (b) The right of action is concealed by the fraud of any such person as aforesaid… The period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it…”
“This section replaces s26, LA 1939…the opportunity has been taken to restructure the section to “restate the old law in modern language” as Lord Hailsham put it (H.L. vol.400, Col 1219), and to deal with one or two points of interpretation which had been disclosed by the Court in their efforts to construe the original section 26. Unless otherwise indicated it appears that cases decided on under that section will remain relevant in the construction of this provision…” (3) In Cave v Robinson, Jarvis and Rolfe[2003] 1AC 384 . Lord Scott, whilst noting that the wording of section 26 was not the same as the wording of section 32, and in particular section 26 had no provision comparable to section 32(2), continued: “40…Nonetheless it was generally believed that the broad effect of section 26 had been continued under section 32. Paragraph 31–19 of Clerk & Lindsell on Torts, 17th edition (1995), p1593 (18th edition (2000), p1723, para 33-25) said that section 32(2): “preserves and confirms the case law onsection 26 of the Limitation Act 1939 …””
“32-22…Section 32 of the Limitation Act 1980 , is a re-draft ofs.26 of the Limitation Act 1939 , designed not to change the existing law, but to bring the statute more obviously into line with the interpretation which the courts had put upon it.” (5) In Giles v Rhind[2008] EWCA Civ 118 ;[2009] Ch 191 . Arden LJ, when considering the meaning of “Breach of Duty” insection 32(2) of the 1980 Act , said: “43. S32(2) did not appear ins26 of the Limitation Act 1939 (as originally enacted), which was the statutory predecessor of s32(1). For present purposes there was no material difference between s26 and s32(1) …It is appropriate to refer to the report of the Law Reform Committee because it sets out the pre-existing law and the mischief to which the amendments to s26 were directed…”
“The wording introduced by the 1980 Act appears to reflect the interpretation which the courts had put upon s.26 of the 1939 Act…”
“60 … A Claimant who proposes to invoke section 32(1)(b) in order to defeat a Limitation Act defence must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question. In many cases the requisite proof of intention might be quite difficult to provide. The standard of proof would be the usual balance of probabilities standard and inferences could of course be drawn from suitable primary facts but, nonetheless, proof of intention, particularly where an omission rather than a positive act is relied on, is often very difficult. Subsection (2), however, provides an alternative route. The Claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty. If the Claimant can show that the Defendant knew he was committing a breach of duty, or intended to commit the breach of duty — I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach — then, if the circumstances are such that the claimant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for subsection (1)(b) purposes….”
“It is submitted…the tort of false imprisonment had two elements (a) Mr Johnson’s detention on various dates as set out in the statement of claim, and (b) the absence of any reasonable cause by the police officers concerned to suspect that Miss Richardson was guilty. … It is true to say that the tort of false imprisonment has two ingredients; the fact that imprisonment and the absence of lawful authority to justify it…But… the gist of the action of false imprisonment is the mere imprisonment. The Plaintiff need not prove that the imprisonment was unlawful or malicious; he establishes a prima facie case if he proves that he was imprisoned by the Defendant. The onus is then shifted to the Defendant to prove some justification for it.
“In construing the words, there is no middle ground between fact and evidence. It may be that the Plaintiff’s case following the quashing of the convictions would be evidentially stronger and have a better prospect of success. But I am unable to accept… that the quashing of the convictions adds anything to the Plaintiff’s knowledge of facts relevant to his right of action. Facts which improve prospects of success are not… facts relevant to his right of action… I accept that the construction…is a narrow one, but unless it is correct it is difficult to see what purpose is served by the special provisions with regard to personal injury actions which are contained in section 33 of the Act…”
“I agree. The wording of section 32(1)(b)… is such that a narrow interpretation is necessary. In order to give relief to the Plaintiff any new fact must be relevant to the Plaintiff's “right of action” and is to be contrasted with a fact relevant, for example, to “the Plaintiff's action” or “his case” or “his right to damages”
“…the decision in Johnson…must be applied to the relevant expression in section 32A as it applies to the expression in section 32(1)(b). The relevant facts are those which the Plaintiff has to prove to establish a prima facie case…. As well as being bound by it, I respectfully agree with the decision in Johnson. In section 32A Parliament has for actions for libel or slander breached the protection which a period of limitation ordinarily gives to a Defendant. I do not consider that Parliament has intended…to create a breach so wide as to enable facts relevant to possible defences to the action to be a relevant consideration. Given the public interest in finality and the importance of certainty in the law of limitation, I would have expected Parliament to use words different and more general had the broad construction, with the uncertainties it involves, been intended. The facts relevant to the cause of action are confined to the limited class of facts contemplated in Johnson’s case…”
“There are four points on the wording of the paragraph which should be noted. (i) The paragraph does not say that the right of action must have been concealed from the Claimant: it says only that a fact relevant to the right of action should have been concealed from the Claimant. (ii) Although the concealed fact must have been relevant to the right of action, the paragraph does not say, and in my judgment does not require, that the Defendant must have known that the fact was relevant to the right of action…All that is essential is that the fact must actually have been relevant, whether the Defendant knew that or not. The paragraph does of course require that the fact was one which the Defendant knew, because otherwise he could not have concealed it. But it is not necessary in addition that the Defendant knew that the fact was relevant to the Claimant's right of action. (iii)The paragraph requires only that any fact relevant to the right of action is concealed. It does not require that all facts relevant to the right of action are concealed. (iv)The requirement is that the fact must be “deliberately concealed”
“I observe that two facts were the following: that Mr Brown agreed to the consent order, and that the consent order was made. Those two facts are indisputably relevant to Ms Williams’s right of action against FP & H. They are the central elements of the negligent breach of duty which she alleges.”
“453. Second, as Rix LJ emphasises, Johnson stands as authority for the proposition that what must be concealed is something essential to complete the cause of action. It is not enough that evidence that might enhance the claim is concealed, provided that the claim can be properly pleaded without it. The court therefore has to look for the gist of the cause of action that is asserted, to see if that was available to the claimant without knowledge of the concealed material.”
“49. Johnson, the Mirror Group Newspapers case and The Kriti Palm are clear authority, binding on this Court, for the following principles applicable to section 32(1)(b) of the 1980 Act: (1) a “fact relevant to the Plaintiff's right of action” within section 32(1)(b) is a fact without which the cause of action is incomplete; (2) facts which merely improve prospects of success are not facts relevant to the Claimant's right of action; (3) facts bearing on a matter which is not a necessary ingredient of the cause of action but which may provide a defence are not facts relevant to the Claimant’s right of action. 50. Mr Fergus Randolph QC…has submitted that those cases and principles do not apply, or in any event do not apply without important modification, to claims for breach of competition law…He submitted that competition claims are far more complex, in terms of what has to be alleged and pleaded, than other claims, such as the claim for damages for false imprisonment in Johnson or for defamation in the Mirror Group Newspapers case…So, Mr Randolph submits, in the case of the present proceedings the Claimant has to know and be able to plead the primary facts which inform the economic contentions and assessments which form the basis of the claims under Article 101 and the domestic legislation. Mr Randolph described this as a “multi-layered” position. 51. I do not agree that, so far as concerns the proper approach under section 32(1)(b), competition claims are to be treated in principle in any different way to other claims. There are many areas of the law where a cause of action is dependent not simply on the primary facts but rather on whether those primary facts give rise to a particular consequence or inference. Furthermore, the policy considerations of finality and certainty in the law of limitation, emphasised by Neill LJ in the Mirror Group Newspapers case, are as important to competition claims as to those under consideration in Johnson, the Mirror Group Newspapers case and The Kriti Palm…”
“By23 September 2016 , the Claimants to provide a list of facts relevant to the Claimants’ causes of action which are alleged to have been deliberately concealed from the Claimants by the Defendant by reference to all pleadings, including test case pleadings.”
“An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person. The Defendant’s act must be coupled with the capacity of carrying the intention to commit a battery into effect.”
“The least touching of another in anger is a battery. The direct imposition of any unwanted physical contact on another person may constitute the tort of battery.”
“…the gist of the action false imprisonment is the mere imprisonment. The plaintiff need not prove that the imprisonment was unlawful or malicious; he establishes a prima facie case if he proves he was imprisoned by the Defendant.”
“The evidence demonstrates that by and large [the Test Claimants] believed the British were in charge, and responsible for what happened to them.”. . In paragraph 30(7) of Mr Myerson’s skeleton argument he says: “Here, Cs almost unanimously believe the UK Government is responsible for the torts of which they were victims. But that could not be pleaded without knowledge of the system that the documents (in Cs’ submission) prove.”
“… the Claimants must plead and prove such knowledge/ conduct… Whether the Claimants have, as a matter of law, to prove what is alleged in those paragraphs in order to fix joint or vicarious liability on the Defendant is, of course, another matter.”
“49. The Claimants have taken a pragmatic decision not to advance any argument under s14, based on the proportionality of continuing with that argument in the light of the Test Claimants’ answers in evidence. The evidence demonstrates that by and large they believed the British were in charge, and responsible for what happened to them. The Claimants will rely on their answers in cross examination as reflecting the true position – regardless of technical constitutional arguments – likely to be known by both alleged victims and protagonists” (b) The Defendant points to the Part 18 Responses of, by way of example, TC20, in which on many occasions she says she believes the perpetrators of the alleged torts were employees of the British Government. Also, in the response to paragraph 18 she says: “We were beaten by the police and Home Guards who were given orders by the British. Yes, they were employees of the UK Government as I had stated earlier”. (c) The Claimants say that belief is not knowledge. It is correct that for s14 purposes they are not co-terminous. I was not taken to the authorities for this proposition, but Clerk and Lindsell on Torts (22nd edition) says that there comes a point at which a claimant’s belief will turn into knowledge Paragraph 32-50. and that a firmly-held belief can constitute knowledge. (d) The case has at no stage proceeded on the basis that any relevant knowledge for s14 purposes was constructive knowledge only. It has not been explored. No evidence was given by any Claimant to this effect. Nowhere in the pleadings on s32 do the Claimants aver that the alleged deliberate concealment was a concealment of the identity of the Defendant, or additional facts under s14(1)(d), which the Claimants did not know until the Hanslope files were disclosed in 2011 GPOC para 46C(a); AGD para 96(a) (iii) and (iv); . In the s32 list at Appendix B, among all the irrelevant material, there is one mention of joint/vicarious liability. It is this: “Particular bases of Liability The concealment prevented and/or continues to prevent the Claimants knowing who precisely originated each particular policy leading to the unlawful acts committed against them, and who precisely determined that each such policy would be applied. Consequently, facts relevant to the case based on joint and vicarious liability have been concealed.”
“59. S32(1)(b) refers to facts being deliberately concealed from the claimant. The Claimants’ case is that whilst, for example, trespass to the person was plainly not concealed, its unlawfulness was concealed, as was the fact that the defendant was a party to it/responsible for it. It is not necessary for the Claimants to ask for those facts (if it were then the concealment would last up to service of the Defence) but merely for facts to be concealed by not being disclosed. 60. Nor is it correct that if they (sic) Claimants knew the identity of the Defendant for the purposes of s14, they knew the facts relevant to their cause of action. As s14(1)(d) makes clear… The identity of someone other than the primary tortfeasor needs “additional facts”, and the issue of the tort itself is irrelevant”
“…without such documents, the Claimants could not establish (my underlining) the Defendant’s liability, even though the liability of the individual perpetrators might have been established”
“4. (1) Nothing in section 1 or 2 of this Act shall- (a) enable any action to be brought which was barred by the 1980 Act or (as the case may be) by theLimitation Act 1939 before this Act comes into force; or… (2) Subject to subsection (1) above, sections 1 and 2 of this Act shall have effect in relation to causes of action accruing before, as well as in relation to causes of action accruing after, this Act comes into force.” (a) enable any action to be brought which was barred by the 1980 Act or (as the case may be) by theLimitation Act 1939 before this Act comes into force; or… (2) Subject to subsection (1) above, sections 1 and 2 of this Act shall have effect in relation to causes of action accruing before, as well as in relation to causes of action accruing after, this Act comes into force.” (b) The question, therefore, is whether the non-personal injury claims based on negligence were already barred under the 1939 or 1980 Limitation Acts before the 1986 Act came into force on18 September 1986 . In so deciding, no account can be taken of any lack of knowledge of the identity of the Defendant by the Claimants. Therefore, even if factually such lack of knowledge had been pleaded and proven by the Claimants, the non-personal injury claims based on negligence would have been barred before the coming into force of the 1986 Act, subject to s32. In Arcadia Para 49. the (then) Chancellor equated the facts “relevant to the plaintiff’s right of action” with “a fact without which the cause of action is incomplete”
“321. It appears therefore that there must be either active and intentional concealment of a fact relevant to a cause of action, or at least the intentional concealment by omission to speak of a fact relevant to a cause of action which the Defendant knew himself to be under a duty to disclose. There is no decision that anything less than a duty to disclose will suffice in the absence of active concealment.”
“That section 32 requires more than a conscious or deliberate decision to withhold information, and more than mere non-disclosure. It requires active concealment, or withholding information which is actively sought, or withholding it when there is some other circumstance which imposes a duty to disclose it. It is possible only to conceal deliberately that which a person knows, not that which he ought to have known. It requires a deliberate breach of duty which is unlikely to be discovered for some time and which is then actively concealed or not disclosed when there was an obligation to disclose.”
“But in many cases there may be no running relationship, and, even where there is, it may not involve any general legal duty to inform the other party of relevant facts. On the face of it, “concealment” in such a context might seem to require active conduct, rather than a mere decision to remain silent-even in circumstances where it would be normal or moral to speak.” “…Has been deliberately concealed from him (i.e. the Claimant) by the Defendant…”
“Subsection (2), however, provides an alternative route. The Claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty.
“I do not consider that the expression “breach of duty” includes any legal wrongdoing whatsoever. In my judgment there must be a legal wrongdoing of a kind that can properly be raised in action to which s32 applies. I will call this the “wider meaning” of “breach of duty”
“…I note that the question is posed by the statute in an objective form. The question is not whether Mr Jackson would think his actions might not be discovered for some time, but whether in fact that was unlikely.”
“The accrual of the cause of action does not, of course, depend on knowledge on the part of the plaintiff. There are special provisions in sections 11 to 14 and 14A (inserted bysection 1 of the Latent Damage Act 1986 ) of the Act under which the date of knowledge is relevant. But your Lordships are not concerned with those provisions in this case.”
“…what is sufficient knowledge to constitute discovery within section 32(1) depends on the particular facts. More importantly…the point has no relevance to proceedings such as the present ones where a complete cause of action has been pleaded…and it is accepted that no new facts necessary to complete the cause of action have been discovered during the previous six years. I agree with the Defendants’ submission that it is logically inconsistent for the Claimants both to assert that the particulars of claim plead a complete cause of action and cannot be struck out for failing to disclose reasonable grounds for bringing the claim or for otherwise being an abuse of the court’s process and yet also to contend that, for the purposes of the ‘statement of claim’ test, the limitation period has not begun to run because there are concealed relevant facts within section 32(1)(b)….the Claimants’ approach makes the most improbable assumption that the intention of Parliament in enacting section 32(1)(b) was that, even though a victim knows sufficient facts to be able to issue proceedings and plead a complete cause of action, the limitation period will nevertheless not commence until the victim discovered or could with reasonable diligence discover further facts.”
“…The question is not whether the Plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take. In this context the length of the applicable period of limitation is irrelevant. In the course of argument May LJ…suggested that the test was how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff and resources and were motivated by a reasonable but not excessive sense of urgency. I respectfully agree.”
“The contentions in relation to access to legal advice for the ignorant, the struggling, poor, ill-educated and unsophisticated, are in principle relevant. The difficulty is the facts.”
“BASIC PRINCIPLES 3. The aim, which should be clearly understood as fundamental to the whole exercise, is as follows:- To ensure that, while leaving as much material as possible for the unimpaired functioning of the succeeding independent Government, and for the proper recording of the past, nothing is made available to individuals now or to that future Government, which may a. prejudice the security of the Commonwealth or any friendly state; or b. embarrass HMG, the present or any future Kenya Government, or any friendly Government; or c. give a political party in power an unfair or improper advantage over an opposition party, by the possession of delicate information liable to be exploited in a party interest; or d. endanger a source of intelligence, or render any individual vulnerable to victimisation. Papers which are inconsistent with this aim are “WATCH” material, and the intention is to segregate and withhold from unauthorised persons whatever cannot without ill effect or impropriety be destroyed.”
“32. The Defendant shall provide standard disclosure by list…- limited to the following classes of documents: (a) Documents that (1) were produced in the period1 January 1950 to31 December 1963 and (2) are presently in the possession of the Foreign and Commonwealth Office; and (b) Any other documents on which the Defendant relies.”
“3. Officers who authorise the destruction of SECRET papers should be careful not to destroy original material, or material which they have originated, and which may be the only surviving copy, if it is likely to be of historical value. 4. A record will be kept of all documents destroyed, and when the documents bear an individual number, a destruction certificate will be sent to the office of origin.”
“Disposal of Classified Records and Accountable Documents. 1. As you are considering the disposal of classified records and accountable documents, it may be useful if I set out guidance given shortly before the achievement of Independence to Governors of certain territories which are now independent. 2. The general principles which have been followed in disposing of documents in these circumstances are:- (i) There would be no objection to the transfer to the successor Government of secret or lower papers provided that they have been scrutinised and selected by a small committee of, say, a Special Branch Officer and two Senior Administrative Officers to ensure that none are passed on which:- (a) might embarrass H.M.G. or other Governments; (b) might embarrass members of the police, military forces, public servants or others, e.g. police informers; (c) might compromise sources of intelligence information; (d) might be used unethically by Ministers in the successor Government. (ii) There would be little object in handing over documents which would patently be of no value to the successor Government.”
“The basement is overcrowded and it is essential that a weeding exercise of these files should be carried out as soon as possible and this should be done by fairly senior and sensible officers. The files should be classified as follows: (a) Those for destruction (which should constitute the majority); (b) Those to be preserved as a Legacy to a successor government; and (c) Non-Legacy files which should be, I imagine, very few in number.”
“Disposal of Records You will doubtless shortly wish to consider, in the light of constitutional development, measures which should be taken for the protection and disposal of classified documents. It is clearly desirable that timely arrangements should be made to that and I note from your secret and personal saving gram number 2385 of the29 September 1961 that a start has already been made on certain records, but I hope that the enclosed note (which follows generally the instructions given to the Governor at Tanganyika in my secret and personal savingram of3 May 1961 , copied to you as number 76) will be of assistance to you in considering the disposal of records generally. If on detailed consideration of the matter in the light of circumstances in Kenya you wish to seek further guidance, I am very ready to give you such assistance as I can…”
“there is no record that any action was taken on this. Can you throw any light on the matter?”
“However, if it is the sort of letter which I think it is, I suggest you take action on it”
“…it is suggested that all papers at Provincial and District level should be taken off files and destroyed when originals or copies are known to exist at Ministerial or Departmental level”
“…similar consideration was given to personal files of government servants. A minute following a meeting in April 1962 makes clear that the objectives were to ensure that no material was left after independence which could be the cause of discrimination against an individual officer; and to ensure that confidential reports would be held safely. Confidential reports of operations against Mau Mau were to be destroyed.”
“…it is suggested that all papers at Provincial and District level should be taken off files and destroyed when originals or copies are known to exist at Ministerial or departmental level. When such copies do not appear to exist the papers should be forwarded to the Permanent Secretary or Head of Department as appropriate….”
“5… I travelled into the Marangu and other Kikuyu areas north of Nairobi to attempt to locate district records that pertained to the Mau Mau Emergency. In the process of several research tours I discovered that at one boma after another clerks were busy collecting files relating to Mau Mau and the Emergency and burning the results. 6. Clyde Sanger was then the Guardian correspondent in Nairobi… When I learned that archives were being destroyed I told him about what I had found and urged him to alert his Guardian readers after making his own journalistic enquiries. 7. I refer and attach…a copy of Mr Sanger’s article from the Guardian Newspaper archives… That article reflected my conversations with Mr Sanger. 8. I visited as many bomas in the Kikyu Homelands as I could. I witnessed the burning of files in every boma that I visited. The areas I visited included Nyeri, Fort Hall, Kiambu, Nanyuki and Embu. I stopped in each place and saw files being destroyed, and realised that they were files relating to Mau Mau. I cannot say whether or not they were classified files. 9. In the course of my research I rescued hard copies of reports (it was non-secret material) and other documents that the district officers were tossing out, from as many places as possible. 10. I also inquired from the District Commissioners in each boma what was going on… I received direct verbal confirmation that masses of files relating to the Emergency were being destroyed, consciously to keep such records out of the hands of the African government which would succeed HMG. 11. I remember being told that “critical files were being destroyed” per instructions from the Provincial Commissioner… 12… I urged Mr Sanger to file a report on the destruction of files, which he did; I was then summoned to the office of the Chief Secretary (Coutts) for an interview. I asked him to halt the destruction of valuable records. 13. When I was summoned before the Colony’s Chief Secretary (after the Guardian article had appeared) I was told essentially to mind my own business and not to interfere with the operations of HMG. 14. I doubtless asked the Chief Secretary to give me access to whatever was being destroyed so that I could use it in my research. He refused. The Chief Secretary did not deny that destruction was occurring, but he may well have said that nothing “vital” (or some such formulation) was being trashed. 15. I have been provided with copies of documents disclosed by the Defendants that make mention of my name. I produce…a document signed by T Neil and dated 5. 10. 61. Mr Neil describes a meeting with me where he describes me as being “a little put out that I would not allow him access to our confidential papers”
“By early March 1963 the administration was actively checking whether documents were being destroyed. Later that month it was agreed that the WATCH system would be operated only by a small group of top-ranking officers and Special Branch, as part of what appears to be a planned system of “contraction”
“(c) Special Branch Special Branch was “cleansing” itself. No material would go to the Governor’s Office as it was not considered to be of historical value.”
“The conversation continued and it is clear that material which was “explosiveordangerous”was destroyed. The test for return to the UK at this stage was absolute necessity. Material concerning villagisation was already an issue which might be “too secret”to retain. Equally a draft memo from the Chief Commissioner in May 1963 complained that destruction was not proceeding appropriately because relevant files had become mixed up with historical records.”
“Dear Provincial and District Records During his recent visits to Provincial and District Headquarters to examine our historical records, Dick Cashmore came across a number of files which would cause us considerable embarrassment if they fell into the hands of the next government. The following are typical examples: (i) Personal files (classified, confidential or secret) on African political personalities some of whom are now ministers or leaders in the main political party. (ii) Interrogation reports on Mau Mau terrorists, lists of loyalists and lists of Mau Mau gangs. (iii) Inquest files eg Inquiry into the deaths of the Hola Works Camp detainees. (iv) Closed volumes of current secret and confidential files 2. The fact that such files had been mixed up with our historical records is disturbing, particularly as most of our historical records will be “Legacy” material. I shall be grateful, therefore, if you will take steps to ensure that your Provincial and District Records are thoroughly examined by Expatriate Administrative Officers with the object of removing, and destroying, the sort of material referred to in sub-paragraphs (i) to (iv) above. This work must be completed before Internal Self Government for obvious reasons. 3. Please destroy this letter when you have noted its contents.”
“8. The evidence is that the purpose of destroying documents was to avoid embarrassing D (by making clear the sheer numbers of those unlawfully detained and that punishments were imposed for little or no reason) or displaying racial prejudice (by demonstrating virtually all Kikuyu were detained unless they were declared loyalists). There is thus an inference that the documents destroyed were such documents.”
“The evidence served by the claimants in this process, in particular a statement by Professor David Anderson of Oxford University, made reference to his understanding that a number of documents relating to the Emergency had been removed from Kenya before independence in 1963; these were said to be contained in some 300 boxes. Professor Anderson stated that, from his own researches, he was unable to determine what had happened to these documents. As a result further enquiries were made within the defendant’s organisation, including to a division known as the Information Management Group (“IMG”) responsible for a section of records held at a property known as Hanslope Park in Buckinghamshire. An enquiry had been made in that quarter, by officials with conduct of these proceedings on behalf of the defendant, prior to the initial service of the defendant’s evidence with its first tranche of documents in November 2010, but that enquiry had yielded no result. However, on the occasion of his second inquiry, on17 January 2011 , the relevant official within the defendant’s organisation received a telephone call from IMG indicating that what appeared to be the missing 300 boxes had been found…”
“the new disclosure has only served to confirm the impressions and conclusions that they had expressed in their earlier statements about what they see to be the complicity of the British Army and Government in the infliction of abuses upon detainees…”
“However, I do not wish to say more about the history of what happened to documents in the immediate run-up to independence, beyond what is strictly necessary for the determination of the preliminary issue, since the matter may still have a bearing upon issues that might have to be considered at a trial about the knowledge of abuses in the camps on the part of relevant participants. Clearly, deliberate destruction or concealment of embarrassing papers (if that occurred) could well be relevant to the case now made against the defendant. It would not be desirable after a brief consideration of this issue, in the context of a much wider ranging hearing, to reach final conclusions on the many points argued on this aspect of the case. It suffices to say that I do not consider that there is any question of “conduct” of the defendant relating to the loss of documents, now weighing in the scales against it, for the purposes of section 33(3) (c) of the Act, whatever relevance this subject may have at a later stage.” (ii) He then referred to the fact that under the policy substantial quantities of documents were physically removed from Kenya, including the Hanslope files 294 boxes, containing about 1500 files. In addition, there were a further 13 boxes of Top Secret papers, containing sensitive material including intelligence reports, names of security officers etc. which became separated from the Hanslope archive sometime after they were reviewed during the 1980s and later destroyed. , and that although some documents were clearly destroyed in Kenya before independence, the evidence suggested that “a substantial quantity of what might have been thought to be potentially “embarrassing” documents were included in the papers returned intact to the UK, finding their way in the end to Hanslope.”
“the late disclosure of the Hanslope papers did not prevent the commencement of the action, since the work of the historians in the period up to 2005 changed the academic understanding of the period, based on papers already available in the public archives in this country and in Kenya. It seems to me that this was the principal trigger for the initiation of the claims.”
“the political climate in Kenya after independence and until 2002/3 would not have permitted the potential claims to have been ventilated much sooner; that cannot be laid at the door of the UK government.”
“The analysis of the material found at Hanslope assists Cs in the following ways: (a) It provides material upon which a proper view of their claims can be formed. (b) It permits the case to be advanced without historians’ evidence. (c) It explains the system. That, in turn supports individual accounts of injuries (which D does not admit) and establishes the basis of the liability for those injuries should attach to D. (d) It establishes that D’s contention that it would be assisted by missing historical records – and that proceeding into the absence of such records is thus unfair – is very likely to be wrong. (e) It thereby permits the court to assess credibility by measuring D’s contentions against the facts. (f) It thus establishes – by proving the unlikelihood of it – that D cannot assert its acts were lawful by virtue of the Regulations passed. D did not make this concession until Mr. Mansfield replied to the opening. Until then C’s had to prove it.”
“This paragraph begins a discussion in which findings of fact are made about the documents allegedly concealed, upon which the Claimants relied for the s32 argument. However, the judgment then makes findings rather wider than this, upon which the Claimants advanced no argument. The Claimants’ primary suggestion is that a further sentence could be added to paragraph 89 at the end to make that clear. It could read: “Insofar as what follows are findings of fact, those findings are particular to this judgment”