Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB)

“A state of emergency was declared in Kenya tonight (Monday, October 20, 1952) throughout the Colony and Protectorate of Kenya. This action has been taken to enable the police to detain the persons believed to have been mainly responsible for organising disorder and lawlessness in the Colony during recent months. Whereas previously Mau Mau perpetrated their crimes at night and by stealth, the situation became progressively worse during September and early October. The assassination of one of the most revered African chiefs, Senior Chief Waruhiu, on the High Road – in broad daylight – shows the length to which the Mau Mau are prepared to go to carry their campaign of terrorism. It became obvious that action must be taken to detain the persons who are behind this organisation but the measures could not be put into operation until adequate forces were available to maintain law and order and to discourage outbreaks of violence by Mau Mau supporters. The timing of the operation was therefore arranged to coincide with the arrival of troops (from the Middle East and from Uganda and Tanganyika). This step has been taken with great reluctance but there was no alternative in the face of mounting lawlessness, violence and disorder in a part of the Colony.”

“Mr. Mansfield QC for the Defendant stated expressly that the Defendant did not dispute that he or she had suffered torture and other mistreatment at the hands of the Colonial Administration (my emphasis). There remains, therefore, no outstanding issue as to the fact of those Claimant’s injuries and the manner of their infliction, although legal responsibility on the part of Her Majesty’s Government in the United Kingdom remains hotly contested. While Mr. Mansfield maintains certain points as to inconsistencies in certain parts of the Claimant’s accounts (which may go to other issues in the case, such as the status of the perpetrator of the injury in question and therefore the Defendant’s potential responsibility in Law for his actions), the substance of what happened to these 3 Claimants is no longer in dispute.”

“With permission, Mr Speaker, I would like to make a statement on a legal settlement that the Government has reached concerning the claims of Kenyan citizens who lived through the Emergency Period and the Mau Mau insurgency from October 1952 to December 1963. During the Emergency Period widespread violence was committed by both sides, and most of the victims were Kenyan. Many thousands of Mau Mau members were killed, while the Mau Mau themselves were responsible for the deaths of over 2,000 people including 200 casualties among the British regiments and police. Emergency regulations were introduced: political organisations were banned; prohibited areas were created and provisions for detention without trial were enacted. The colonial authorities made unprecedented use of capital punishment and sanctioned harsh prison so-called ‘rehabilitation’ regimes. Many of those detained were never tried and the links of many with the Mau Mau were never proven. There was recognition at the time of the brutality of these repressive measures and the shocking level of violence, including an important debate in this House on the infamous events at Hola Camp in 1959. We recognise that British personnel were called upon to serve in difficult and dangerous circumstances. Many members of the colonial service contributed to establishing the institutions that underpin Kenya today and we acknowledge their contribution. However I would like to make clear now and for the first time, on behalf of Her Majesty’s Government, that we understand the pain and grievance felt by those who were involved in the events of the Emergency in Kenya. The British Government recognises that Kenyans were subject to torture and other forms of ill treatment at the hands of the colonial administration. The British government sincerely regrets that these abuses took place, and that they marred Kenya’s progress towards independence. Torture and ill treatment are abhorrent violations of human dignity which we unreservedly condemn. In October 2009 claims were first brought to the High Court by five individuals who were detained during the Emergency period regarding their treatment in detention. In 2011 the High Court rejected the Claimants’ argument that the liabilities of the colonial administration transferred to the British Government on independence, but allowed the claims to proceed on the basis of other arguments. In 2012 a further hearing took place to determine whether the cases should be allowed to proceed. The High Court ruled that three of the five cases could do so. The Court of Appeal was due to hear our appeal against that decision last month. However, I can announce today that the Government has now reached an agreement with Leigh Day, the solicitors acting on behalf of the Claimants, in full and final settlement of their clients’ claims. The agreement includes payment of a settlement sum in respect of 5,228 Claimants, as well as a gross costs sum, to the total value of £19.9 million. The Government will also support the construction of a memorial in Nairobi to the victims of torture and ill-treatment during the colonial era. The memorial will stand alongside others that are already being established in Kenya as the country continues to heal the wounds of the past. And the British High Commissioner in Nairobi is also today making a public statement to members of the Mau Mau War Veterans Association in Kenya, explaining the settlement and expressing our regret for the events of the Emergency Period. Mr Speaker this settlement provides recognition of the suffering and injustice that took place in Kenya. The Government of Kenya, the Kenya Human Rights Commission and the Mau Mau War Veterans Association have long been in favour of a settlement, and it is my hope that the agreement now reached will receive wide support, will help draw a line under these events, and will support reconciliation. We continue to deny liability on behalf of the Government and British taxpayers today for the actions of the colonial administration in respect of the claims, and indeed the courts have made no finding of liability against the Government in this case. We do not believe that claims relating to events that occurred overseas outside direct British jurisdiction more than fifty years ago can be resolved satisfactorily through the courts without the testimony of key witnesses that is no longer available. It is therefore right that the Government has defended the case to this point since 2009. It is of course right that those who feel they have a case are free to bring it to the courts. However we will also continue to exercise our own right to defend claims brought against the Government. And we do not believe that this settlement establishes a precedent in relation to any other former British colonial administration. The settlement I am announcing today is part of a process of reconciliation. In December this year, Kenya will mark its 50th anniversary of independence and the country’s future belongs to a post independence generation. We do not want our current and future relations with Kenya to be overshadowed by the past. Today we are bound together by commercial, security and personal links that benefit both our countries. We are working together closely to build a more stable region. Bilateral trade between the UK and Kenya amounts to £1 billion each year, and around 200,000 Britons visit Kenya annually. Although we should never forget history and indeed must always seek to learn from it, we should also look to the future, strengthening a relationship that will promote the security and prosperity of both our nations. I trust that this settlement will support that process. The ability to recognise error in the past but also to build the strongest possible foundation for cooperation and friendship in the future are both hallmarks of our democracy.”

“the British government sincerely regrets that these abuses took place, and that they marred Kenya’s progress towards independence.”

“The court is presently concerned with a trial of serious allegations with a view to reach conclusive findings of fact in respect of which the TCs seek to recover damages from the Defendant. It is not engaged in a historical seminar or in an inquiry. It is for the Claimants to establish that there can yet be a fair trial of the facts and issues in respect of the individual cases, for them to succeed under s33”

“The parties are agreed that, per the Defendant’s Response §52 the court is “not engaged on a historical seminar or in an inquiry”

“He went through the pipeline and seeks to prove that: (a) He was interrogated and tortured after his arrest in 1954/55. He witnessed the violent rape of a young girl… (b) He was detained at Langata and then Manyani, in which he suffered poor conditions and in which latter camp he was stung by scorpions and refused medical treatment; that he was forced to work and assaulted at Manyani by prison guards… (c) He was detained at Mackinnon Road and assaulted there… (d) He was forced to work at Mackinnon Road, Mwea, and Gathigiri without remuneration… (e) He was assaulted and rearrested in 1959, and was again assaulted after being rearrested… (f) He was again detained and sent to Embakasi – despite not being convicted – in poor conditions and was threatened with castration… He was detained at Fort Jesus, Mukoe Camp in Lamu and Hola where he was assaulted…” (a) He was interrogated and tortured after his arrest in 1954/55. He witnessed the violent rape of a young girl… (b) He was detained at Langata and then Manyani, in which he suffered poor conditions and in which latter camp he was stung by scorpions and refused medical treatment; that he was forced to work and assaulted at Manyani by prison guards… (c) He was detained at Mackinnon Road and assaulted there… (d) He was forced to work at Mackinnon Road, Mwea, and Gathigiri without remuneration… (e) He was assaulted and rearrested in 1959, and was again assaulted after being rearrested… (f) He was again detained and sent to Embakasi – despite not being convicted – in poor conditions and was threatened with castration… He was detained at Fort Jesus, Mukoe Camp in Lamu and Hola where he was assaulted…”

“Mr Banning submits that there was an allegation of an easement in the Pt 20 claim, which was verified by a statement of truth. This does not assist since an allegation so verified is not evidence for the purposes of the trial (see CPR 32.6(2)).”

“32.2 – (1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved – (a) at trial, by their oral evidence given in public; … (2) This is subject – (a) To any provision to the contrary contained in these rules or elsewhere; or (b) To any order of the court.” (a) at trial, by their oral evidence given in public; … (a) To any provision to the contrary contained in these rules or elsewhere; or (b) To any order of the court.”

“Here the facts exist. D’s complaint is that because they are in the wrong place, they should be categorised as something other than facts”

“45 The defendant, by its servants or agents, perpetrated trespasses to the claimant and/or breached its duty to the claimant as follows: PARTICULARS OF NEGLIGENCE AND/OR TRESPASS TO THE PERSON … (6) Failed, if it be the defendant’s case that the claimant was treated as set out here in pursuant to lawful regulations, to ensure the regulations as set out in annex 4A and 4C of the Generic Claim, were compatible with recognised international standards of basic human rights; … (8) Failed to ensure that their servants or agents adhered to international standards of treatment pertaining to those involved in or caught up in conflict; (9) Failed, either adequately or at all, to enforce international standards of treatment pertaining to those involved in or caught up in conflict…”

“(7) Failed to ensure that their servants or agents adhered to the international standards of treatment pertaining to those involved in or caught up in conflict, as required by the common law giving effect to customary international law; (8) Failed, either adequately or at all, to enforce the international standards of treatment pertaining to those involved in or caught up in conflict, as required by the common law giving effect to customary international law.”

“34. I am not prepared to allow these amendments as presently pleaded. They are inadequately particularised in the following regard: (a) Establishing a rule of customary international law requires that the relevant settled state practice is extensive and virtually uniform. (b) The state practice is on the understanding that the states are bound by the rules as a matter of international law. (c) The relevant customary international law in relation to the TCs, the standard relied upon and the acts complained of need to be set out.” (a) Establishing a rule of customary international law requires that the relevant settled state practice is extensive and virtually uniform. (b) The state practice is on the understanding that the states are bound by the rules as a matter of international law. (c) The relevant customary international law in relation to the TCs, the standard relied upon and the acts complained of need to be set out.”

“17. Particulars of claim are intended to define the claim being made. They are a formal document prepared for the purposes of legal proceedings and can be expected to identify with care and precision the case the Claimant is putting forward. They must set out the essential allegations of fact on which the Claimant relies and which he will seek to prove at trial, but they should also state the nature of the case that is being made in order to inform the Defendant and the court of the basis on which it is said that the facts give rise to a right to the remedy being claimed…”

“12 At a CMC in December 2014 it became apparent that the procedure for taking the witnesses’ evidence had been that the lead solicitors prepared English statements first, checked the accuracy of the document by reading the English version back to the witness in the witness’s own language and then corrected errors in the English version. As no native language statement had been taken from the witness, the Defendant agreed that checking the accuracy of the statement with the witness and producing a native version statement and correcting any errors in the English version was the most appropriate way to proceed. The lead solicitors confirmed that that was what they were to do and have since confirmed that that is what they did.”

“(1) The details required by CPR 32PD 4.1(1) to (4) as pertained at the time of creating their first such affidavit (indicating whether those details have subsequently varied and if so, how) (2) The qualifications and experience of each translator at the time of creating their first such affidavit, and thereafter if advised (3) Setting out whether the translator (1) created and/or (2) modified each of: (i) the English language document, and (ii) the Kikuyu/Meru document exhibited to each of the relevant affidavits; if so, when and if not, who if anyone (to the best of their knowledge) created and/or modified those documents (4) Setting out the process by which the content and accuracy of each set of documents exhibited thereto was verified with each Claimant…”

“At the time of me creating my first affidavit I was educated to college level and attained a certificate in computer packages. Throughout the course of my studies lectures were delivered in English. I have therefore applied my knowledge of this language to a high standard culminating in the achievement of my qualification as listed above. … 16 In addition to my role at Miller & Co Advocates, I have previously undertaken work which has required me to utilise my bilingual skills to complete the task in hand. For example, I have worked for Johari Productions, translating scripts from English into Kikuyu for the Kikuyu audience.” ii) Jason Kibe Kimotho: “7 At the time of me creating my first affidavit I was educated to university standard having attained a BSc in media science at Moi University. Throughout the course of my studies lectures were delivered in the English and Kiswahili languages. I have therefore applied my knowledge of these languages to a high standard culminating in the achievement of my qualification as listed above. … 16 In addition to my role at Miller & Co Advocates, I have previously undertaken work which has required me to utilise my bilingual skills to complete the task in hand. For example, translating documents, recordings, and survey questions from Kiswahili to English and vice versa. Most of these works are from an online working platform Elance… where I worked as a freelance translator (written). I have also translated orally in campus (Moi University) where some Americans were involved in a programme that aimed to instil computer skills to the local community and students. I was part of the team involved in teaching. Translation took place when the Americans needed to talk to the locals, where some had difficulties understanding English.” iii) Bernard Muchiri Kariuki: “7 At the time of me creating my first affidavit I was educated to secondary standard having attained a Kenya certificate of secondary education at Sacred Heart High School. Throughout the course of my studies, lectures were delivered in the Kiswahili and English languages. I have therefore applied my knowledge of these languages to a high standard culminating in the achievement of my qualifications as listed above.” iv) Joseph Kamau Kiiru: “At the time of me creating my first affidavit I was educated to university standard having attained a bachelor of laws (LLB) at Duomo Kenyatta University of Agriculture and Technology. Throughout the course of my studies, lectures were delivered in the English language. I have therefore applied my knowledge of this language to a high standard culminating in the achievement of my qualifications as listed above.” v) Ann Njeri Kamau: “At the time of me creating my first affidavit I was educated to university standard having attained a diploma in mass communication at the Mombasa Polytechnic University. I was also a licensed emergency medical technician 1. Throughout the course of my studies, lectures were delivered in the Kiswahili and English languages. I have therefore applied my knowledge of these languages to a high standard culminating in the achievement of my qualifications as listed above. … 16 In addition to my role at Miller & Co Advocates, I had previously undertaken work which has required me to utilise my bilingual skills to complete the task in hand. For example, I am a TV host on Inooro TV which is a Kikuyu station. I have also been an actor in local play productions that were done in my mother tongue, Kikuyu.” vi) Hiram Thume Kimotho: “At the time of me creating my first affidavit I was educated to diploma level having attained a diploma in performing arts. Throughout the course of my studies, lectures were delivered in English. I have therefore applied my knowledge of this language to a high standard culminating in the achievement of my qualifications as listed above. … 16 In addition to my role at Miller & Co Advocates, I have previously undertaken work which has required me to utilise my bilingual skills to complete the task in hand. For example, I have worked for Masafa arts production (theatre group) translating, writing and directing film scripts from English to Kikuyu languages and vice versa and also worked with Inooro television which is a Kikuyu television station. I am also an actor, and I perform in three languages; Kikuyu, English and Kiswahili.”

“9 The main purpose of my role was to translate the contents of witness statements and part 18 responses from the English language into the Kikuyu language, and vice versa, to attest the accuracy of those translations. I would also act as an interpreter during the course of the Test Claimants interviews, which would entail providing an accurate and truthful translation of the Test Claimants recollection of events arising out of the state of emergency. … 11 Due to the passage of time I am unable to recall every document that I created or modified. 12 Also due to the passage of time I am unable to state on oath exactly when I created the documents attached to each of my affidavits and if they were not created by me who was responsible for creating or modifying those documents attached to my previous affidavit. In the witness statements of Joseph Kamau Kiiru and Hiram Thume Kimotho this paragraph is slightly varied and reads “12 Also due to the passage of time I am unable to state on oath who was responsible for creating or modifying those documents attached to my previous affidavit.” 13 Where I have signed an affidavit, I can confirm that I was present during the interview and accompanied by a UK lawyer when the Test Claimant confirmed the accuracy of the document they were signing by thumb printing the document after this had been read to them line by line in their native language. Any corrections that were required such as spelling or alterations were made whilst the Claimant was present as part of the interview process and read again to the Claimant before they thumb printed the same. 14 At the time of conducting the translation process with the Claimant I had access to the original English statement and a translated Kikuyu version of this document which I read out to the Claimant from the Kikuyu version in order to verify the contents as being correct. The translated Kikuyu version of the statement was translated from English by a member of Miller & Co Advocates translation team. I was involved in this process of converting the documents from English into Kikuyu. A Kikuyu statement that I verified with the Claimant may not necessarily have originally been translated from English into Kikuyu by me. 15 Part 18 responses to the questions were prepared entirely on the basis of information provided by the Test Claimants during the course of their respective interviews, which were subsequently approved by the Test Claimants on the date of their thumb print as found in the part 18 responses.”

“on arrival at the Mackinnon Road camp, the claimant was questioned by a British officer and an African regarding the whereabouts of some guns.”

“The claimant cannot state in any more detail a description of the uniform. All he can say is that they were white and spoke English. The claimant does not know his name…”

“PLEASE ENSURE THE CLIENT IS AWARE OF THE ALLEGATIONS AND CLAIMS THEY HAVE MADE PLEASE ASK THE CLIENT TO SIGN THE BELOW IF THEY AGREE “I have been told that the purpose of this questionnaire is to enable Griffin Legal to categorise my potential evidence and that the questionnaire will not be the evidence I give in court”

“Do you allege that you were forcibly removed? Yes No Who removed you? British Military Kenyan Police Home Guard Other Did you sustain any injury during the removal? Yes No”

“92 … Just as the sliding scale of practical arrangements rises from “no fresh involvement” to “the full forensic process”, there will be a corresponding scale in which the degree to which a court may be able to rely upon the resulting evidence will increase the nearer the process comes to normality… 93 Where special measures have been deployed it is, however, necessary for the judge who is evaluating the resulting evidence to assess the degree, if any, to which the process may have affected the ability of the court to rely upon the witness’s evidence…”

“D’s failure to challenge TC34 on key points is a matter for D. It plainly has the evidential consequence that the evidence was not challenged and should be accepted. It has the wider consequence of undermining D’s pleaded case that it cannot address the issue. D cannot credibly make that submission having deprived itself of the opportunity of establishing it in evidence. D’s failure to seek to do so is no more than a (well-founded) fear that TC34’s answers would further bolster his account. Without documents or cross-examination to undermine the account the court should accept it – particularly after D’s evidence that what documentation remains in its own files provides a reliable picture of events.”

“…the Defendant is not able to put forward a positive account of what happened to the individual Test Claimant. The perpetrators, or alleged perpetrators of the assault on the claimant are dead or untraceable, and so too are the senior colonial government officials who were responsible for the villages and camps where the Claimants live. They cannot answer the factual allegations made by the Claimant and they cannot give instructions to the Defendant’s counsel during the course of this trial. The Defendant has not found or been provided with contemporaneous documents which could clarify what happened to the individual Claimants, such as whether they were moved from their homes, and if so, when and why. All of this makes cross-examination of them extraordinarily difficult. It means that when asking questions the Defendant cannot advance its own alternative narrative of events, except at a level of generality, to contradict or undermine the factual allegations made by the Claimants in their evidence. The claimants are elderly, most of them are frail, many of them cannot read or write, and none of them speaks English. This vulnerability presents additional forensic difficulties for the defendant which will be addressed in submissions later in the course of this trial, however for present purposes the defendants' counsel wish to make clear that we are committed to ensuring that the claimants are treated properly throughout these proceedings. We will endeavour to question the claimants with sensitivity, notwithstanding that the subject matter may be uncomfortable for them at times. We will take time to ensure that the claimants understand the questions being asked. We will not, except occasionally and where necessary, be putting contemporaneous documents to them, even though there are documents that, as we will submit in due course, contradict their claims. As has previously been agreed, we will also not be putting every perceived evidential inconsistency to each claimant. However, we will, where possible, ask questions about significant inconsistencies and we will provide such inconsistencies to the court in a table prior to each claimant giving evidence….”

“My Lord, I want to make this entirely clear. The way in which the rules of evidence work as we apprehend them is not that a witness must repeat in cross-examination something that was said in examination-in-chief by way of witness statement. The purpose of cross-examination, if challenge is made, to make that challenge, so that if in due course the defence wish to say these witnesses' account is not credible, then although I have said of course to my learned friend Mr Skelton, and repeated it to your Lordship, that not every point has to be put, there can be no challenge to the centrality of the claimant's evidence mounted on the basis of walking around the outside and sniping at the details.”

“It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matter, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67…. Hunt J then considered the speeches in Browne v Dunne and continued: “These statements by the House of Lords led to the formulation of a number of so-called “rules”

“Any matter upon which it is proposed to contradict the evidence in chief given by the witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do this may be held to imply acceptance of the evidence in chief.”…… I remain of the opinion that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.”

“61. We think all that applies here. It is not necessary to explore the limits of the rule in Browne v Dunn for this case falls squarely within it. Indeed the position is stronger here, for the Judge was not even asked to disbelieve the witnesses.”

“unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matter”

“…this approach applies equally to all fact- finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context.”

“(1) The consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) The internal consistency of the witness’s evidence; (3) The consistency with what the witness has said or deposed on other occasions.”

“(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 11 … 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……….; (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 11 … 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……….; (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.”

“96. The judge began this section of his judgment by observing, correctly in our view, that the burden of proof under section 33 lies on the Claimant…recognising that the suggestion made in KR v Bryn Alyn Community Holdings Limited [2003] QB 1441 that it is a heavy burden is no longer good law. The discretion to disapply section 11 is unfettered and the Court's duty is to do what is fair: see Horton v Sadler [2007] 1 AC 307 and A v Hoare.”

“(iii) Depending on the issues and the nature of the evidence going to them, the longer the delay the more likely, and the greater, the prejudice to the defendant. (iv) Where a judge is minded to grant a long "extension" he should take meticulous care in giving reasons for doing so. (v) A judge should not reach a decision effectively concluding the matter on the strength of any one of the circumstances specified in section 33(3), or on one of any other circumstances relevant to his decision, or without regard to all the issues in the case. He should conduct the balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all the issues, taking them all into account. (vii) Where a judge determines the section 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay. (viii) Where a judge has assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, he should keep in mind in balancing the respective prejudice to the parties that the more cogent the Claimant's case the greater the prejudice to the defendant in depriving him of the benefit of the limitation period. As Parker LJ showed in Hartley v. Birmingham City District Council [1992] 1 WLR 968, 979 G-H, such a finding is usually neutral on the balance of prejudice: ‘…in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff's case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied …as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the Defendant's ability to defend.”

“We should not leave these remarks of Parker LJ without noting that they were qualified in Nash v Eli Lilly & Co… where this Court said that there could be instances of weak claims where disapplication of the limitation provision could cause Defendant’s considerable prejudice in putting them to the trouble and expense of successfully defending them and then not being able recover costs against impecunious Claimants.”

“All he Parker LJ in Hartley. was intending to say was that the prejudice to the defendant of losing a limitation defence is not the relevant prejudice to be addressed. The prejudice to be addressed is that which affects the defendant's ability to defend. Clearly the strength of the Claimant's case is relevant…If the action in a case, where liability has been admitted, is commenced a day late but the Defendant is in no way prejudiced in defending the claim, the limitation defence would be a windfall and so as in Hartley the discretion will be exercised in favour of the Claimant…”

“It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the Defendant to meet this claim on its merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the Defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the Defendant and partly because the reasons for the delay (or its length) are not good ones.”

“25. In considering the exercise of his or her discretion under section 33 the judge must consider all the circumstances including of course any prejudice to the Defendant. That involves considering what evidence might have been available to the Defendant if a trial had taken place earlier or it had learned of the claim earlier. We accept Mr Faulks’ submission that it is not sufficient for the court simply to hear the evidence of the Claimant, and indeed any other evidence now available, and to decide the issue of limitation on the basis of it, without considering what evidence would or might have been available at an earlier stage…”

“When this court observed that the judge must decide the issue on the exercise of the discretion under s.33 before reaching the conclusions on liability, it was enjoining a judge to decide the s.33 question on the basis, not of the finding that abuse had occurred, but on an overall assessment, including the cogency of the evidence and the potential effect of the delay on it. It was not seeking to prescribe a formulaic template for the construction of a judgment; it was leaving the judge to decide the best way to write the judgment which would expound the analysis that the law required”

“It is not realistic to shut one's eyes to findings and conclusions reached following a full trial. It is what is done with them in the context of the substance of the reasons for the limitation decision that matters….” ii) Sir Ernest Ryder SPT: “It is simply unreal to fail to appreciate adverse findings and conclusions reached at the end of a trial where limitation is in issue i.e. where it has not been dealt with as a preliminary issue. The correct approach is to adopt an overall assessment of the evidence and the effect of the delay on the same.”

“…was proceeding from a finding on the (necessarily partial) evidence heard that the Claimant should succeed on the merits of the conclusion that it would be equitable to disapply the limitation period. That would be to overlook the possibility that, had the Defendant been in a position to deploy evidence now lost to him, the outcome might have been different.”

“18. The language of section 33(1) is clearly discretionary (may direct etc.) but the question for the court is whether it would be equitable to allow the action to proceed. The Court may allow the whole or part of the claim to proceed. But it cannot be doubted that if a judge concluded that it would be equitable to allow the claim, or part of the claim, to proceed having regard to the relative prejudice to the parties, he should do so. The breadth of the discretion comes from the untrammelled evaluation of relevant factors that a judge may take into account, and the weight he gives to each. The factors identified in section 33(3) are all relevant but the decision on whether it is equitable to proceed will be based upon a broad consideration of all the circumstances.”

“This is an important point because it stresses the broad nature of the discretion and that it does not focus solely on whether there has been prejudice to the defendant.”

“42. Section 33(3) of LA 1980 requires the court, when exercising its discretion under section 33(1), to have regard to all the circumstances of the case but also directs the court to have regard to the five matters specified in sub-sections 33(3)(a)-(f). There are numerous reported cases in which the court has elaborated on the application of that statutory direction in the context of the particular facts of the case. In many of the cases the court has stated various principles of general application. The general principles may be summarised as follows. (1) Section 33 is not confined to a "residual class of cases". It is unfettered and requires the judge to look at the matter broadly: Donovan v Gwentoys Ltd [1990] 1 WLR 472 at 477E; Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307, at [9] (approving the Court of Appeal judgments in Finch v Francis unrptd 21.7.1977); A v Hoare [2008] UKHL 6, [2008] 1 AC 844, at [45], [49], [68] and [84]; Sayers v Lord Chelwood [2012] EWCA Civ 1715 [2013] 1 WLR 1695, at [55]. (2) The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), as is made plain by the opening words “the Court shall have regard to all the circumstances of the case”, but to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and must be taken into a consideration by the judge: Donovan at 477H-478A. (3) The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant: Donovan at 477E; Adams v Bracknell Forest Borough Council [2004] UKHL 29, [2005] 1 AC 76, at [55], approving observations in Robinson v St. Helens Metropolitan Borough Council [2003] PIQR P9 at [32] and [33]; McGhie v British Telecommunications plc [2005] EWCA Civ 48, (2005) 149 SJLB 114, at [45]. Refusing to exercise the discretion in favour of a Claimant who brings the claim outside the primary limitation period will necessarily prejudice the Claimant, who thereby loses the chance of establishing the claim. (4) The burden on the Claimant under section 33 is not necessarily a heavy one. How heavy or easy it is for the Claimant to discharge the burden will depend on the facts of the particular case: Sayers at [55]. (5) Furthermore, while the ultimate burden is on a Claimant to show that it would be inequitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the Defendant is, or is likely to be, less cogent because of the delay is on the defendant: Burgin v Sheffield City Council [2015] EWCA Civ 482 at [23]. If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant: Hammond v West Lancashire Health Authority [1998] Lloyd's Rep Med 146. (6) The prospects of a fair trial are important: Hoare at [60]. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the Defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the Court in deciding what was done or not done and why: Donovan at 479A; Robinson at [32]; Adams at [55]. It is, therefore, particularly relevant whether, and to what extent, the Defendant's ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents: Robinson at [33]; Adams at [55]; Hoare at [50]. (7) Subject to considerations of proportionality (as outlined in (12) below), the Defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount: Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754, at [69]. (8) It is the period after the expiry of the limitation period which is referred to in sub-subsections 33(3)(a) and (b) and carries particular weight: Donovan at 478G. The court may also, however, have regard to the period of delay from the time at which section 14(2) was satisfied until the claim was first notified: Donovan at 478H and 479H-480C; Cain at [74]. The disappearance of evidence and the loss of cogency of evidence even before the limitation clock starts to tick is also relevant, although to a lesser degree: Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717, [2014] PIQR P19, at [65]. (9) The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain at [73]. I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant's ability to defend the claim. (10) Delay caused by the conduct of the claimant's advisers rather than by the claimant may be excusable in this context: Corbin v Penfold Company Limited [2000] Lloyd's Rep Med 247. (11) In the context of reasons for delay, it is relevant to consider under sub-section 33(3)(a) whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier, even though the explanation is irrelevant for meeting the objective standard or test in section 14(2) and (3) and so insufficient to prevent the commencement of the limitation period: Hoare at [44]-[45] and [70]. (12) Proportionality is material to the exercise of the discretion: Robinson at [32] and [33]; Adams at [54] and [55]. In that context, it may be relevant that the claim has only a thin prospect of success (McGhie at [48]), that the claim is modest in financial terms so as to give rise to disproportionate legal costs (Robinson at [33]; Adams at [55]); McGhie at [48]), that the claimant would have a clear case against his or her solicitors (Donovan at 479F), and, in a personal injury case, the extent and degree of damage to the claimant's health, enjoyment of life and employability (Robinson at [33]; Adams at [55]). (13) An appeal court will only interfere with the exercise of the judge's discretion under section 33, as in other cases of judicial discretion, where the judge has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has made a decision which is wrong, that is to say the judge has exceeded the generous ambit within which a reasonable disagreement is possible: KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 783, [2003] 3 WLR 107, at [69]; Burgin at [16].”

“6. The statutes of limitation, which stretch back to 1540, have been in place for two main reasons. One is to protect defendants from being vexed by stale claims. They are Acts of peace…The other is to require claims to be put before the court at a time when the evidence necessary for their fair adjudication is likely to remain available, or, in the words of the preamble to the 1540 Act…, at a time before it becomes “above the Remembrance of any living Man …to…know the perfect Certainty of such Things”.”

“It does not, however, follow that, in weighing the prejudice to the defendant, the court is not entitled to take into account the date upon which the claim is first made against the Defendant…The primary test of the limitation period is to protect a Defendant from the injustice of having to face a stale claim, that is, a claim with which he never expected to have to deal. The Defendants’ insurers never suffered from that disadvantage in Thompson v. Brown and thus the degree of prejudice they suffered was slight. By contrast in the present case, the Defendants are faced with a truly stale claim first made upon them five years after the event. The degree of prejudice they suffer is manifestly incomparably greater than the degree of prejudice suffered by the defendants in Thompson v. Brown and it would be absurd if this could not be taken into account by a judge in the exercise of his discretion. I agree entirely with the following passage from the judgment of Stuart-Smith L.J.: “The time of the notification of the claim is not one of the particular matters to which the court is required to have regard under section 33(3); although it may come in under paragraph (e). But to my mind it is an extremely important consideration, and is always so regarded by judges who have to consider these questions. I cannot accept Mr. Tillyard’s contention that it is irrelevant, presumably because it is not specifically referred to in section 33(3).””

“The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff's claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the Court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant.”

“(i) The basic question is whether it is fair and just in all the circumstances to meet this claim on the merits, notwithstanding the delay in commencement. (ii) The length of the delay is important, not so much for itself as to the effect it has had, namely to what extent the Defendant been disadvantaged in investigating the claim and/or the assembling evidence in respect of both liability and quantum. (iii) It is important to consider the reasons for the delay. If there is some unfairness to the Defendant due to delay but delay may have arisen for so excusable a reason that looking at the matter in the round it is fair and just that the action should proceed. On the other hand, the balance may be in favour of the Defendant, partly because the delay has caused procedural disadvantage and unfairness to the Defendant and partly because the reasons for the delay or its length are not good ones. (iv) It will always be relevant to consider when the Defendant knew that the claim was to be against him and the opportunities the Defendant has had to investigate the claim and collect evidence (Donovan).”

“The Court is required to conduct an inquiry into two factual situations. The first is the length of the delay; the second is the reason for delay on the part of the plaintiff. To add “on the part of the plaintiff” indicates that it is a subjective inquiry in which the Court is there engaged.”

“Having found what the reason is, the Court must decide whether it is a good or bad reason or, in the language of Russell LJ in Halford v. Brookes…whether the plaintiff is culpable or not.”

“When I come to consider the evidence given by the individual plaintiffs, it becomes apparent that none of the factors, save only the willingness of the plaintiffs’ and counsel to act under CFAs, had any material in impact upon the individual minds at all…no plaintiff suggests that his delay until 1996 was because he was waiting for some firm of solicitors to undertake to conduct the action on the basis of the CFA. The reality, it is plain, in my judgment, is that the advertised willingness of those solicitors to conduct the litigation upon that basis was the stimulus that ultimately led all these eight plaintiffs to instruct Messrs Leigh Day to bring proceedings on their behalf.”

“Therefore I am satisfied none of them did anything effective to pursue any claims against the tobacco companies until Mr Day advertised for Claimants or subsequently made offers of CFAs to facilitate litigation. I cannot believe that the underlying policy of section 33 of the 1980 Limitation Act was ever intended by Parliament to permit an injured person…simply to lie in wait until the time became opportune to present a claim, whether because of a change in the law, or an improvement in his own financial circumstances, or any state of affairs arising for what ever reason which would permit him to bring an action which he had hitherto regarded himself as being unable or unwilling to bring. As I said in the outset of this judgment, the whole purpose of the Limitation Act is to ensure that claims are litigated properly and that stale claims should be discouraged.”

“Whilst I recognise and appreciate that it is typical for a victim of child sexual abuse to want to both repress the memory and avoid disclosure of the abuse, the justification for non-disclosure is not self-proving and requires some assessment of the individual alleged victim.”

“No particular reason has been advanced why either Claimant should have delayed as long as each did. Their delay after having known of the abuse, and being able to talk freely about it, in both years exceeded the 3-year primary limitation period applicable to their claims, yet no clear explanation was advanced for this”

“The defendant will not cross-examine the claimants in respect of allegations that are pleaded in the individual particulars of claim but are not supported by evidence in the claimants' statements”. . The pleading says: “…Specifically as to the Section 33 discretion under the Limitation Act 1980, this particular Claimant 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.” (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.”

“this Claimant was told not more than 5 years ago by people at the Chief’s Camp where he lived that he could claim for what happened to him during the Emergency. He had not considered making a claim before. He signed some forms which were taken away. Then about 2 years ago he was told to go to the Offices of Miller & Company in Nairobi where he signed some more forms and was told he could make a claim.”

“No plaintiff suggests that he was deterred from taking any steps to bring proceedings by such matters… None of the other plaintiffs suggested that they were influenced by any public statement by the tobacco company in any way. It is a matter of some concern to me that I have been driven to the conclusion that reasons pleaded in the various statements of claim of the product of the ingenuity of the plaintiffs’ legal advisors, and do not represent either the reality, or the instruction given by each individual plaintiff. I can only say that this is to be deprecated”

“…it was very clear, linked to the cognitive and behavioural avoidance of reminders of the stressor, that thinking or talking about what happened was very distressing for Mr M.”

“MR BLOCK: ….I would suggest to you that a more appropriate way of dealing with the increased alcohol intake would be to say that it is well recognised that some persons exposed to traumatic events abuse substances and it's possible that that is why this Test Claimant did so. A. Yes. Q. But that is as far, as an expert witness, as you can go. You can't say that is the reason. A. No, I would accept it. I completely accept your wording. It is certainly consistent with what we know about individuals”

“Mr. Scrivener contended that the conduct of the first defendant in allegedly coercing the second defendant to make his second statement to the police and the conduct of the first defendant in allegedly giving perjured evidence at the second defendant's trial were both features of the case upon which he could rely pursuant to sub-paragraph (c). I do not agree. In my judgment sub-paragraph (c) is concerned with purely procedural matters, where the forensic tactics of a defendant may lead to delay.”

“Other incapacitating events which may make it more difficult for the claimant to pursue his action do not count as disabilities for limitation purposes. The point has arisen especially in relation to s.33 of the 1980 Act, where one of the factors required to be taken into account is any disability of the claimant arising after the cause of action accrued. It is now clear, after some earlier doubts, that “disability” in this context has the same limited meaning as is given by s.38 of the Act.”

“It is plain that the judge is there applying a wholly subjective test of reasonableness, since he has already indicated what a reasonable man in the position of the plaintiff should do. In my judgment he was wrong to approach the matter in this way. The test is an objective one, namely, what would a reasonable workman in the position of the plaintiff do?”

“Given the requirement that all exercises of discretion under s.33 are proportionate, both the quantum of the claim and its merits will be relevant to the Court’s decision, so that, if the Claimant’s substantive claim is minimal or the case is weak, that will weigh against relief from the ordinary consequences of the limitation rules.”

“I do not consider that the ECHR has relevance to my decision under section 33 of the Act.”

“PREJUDICE TO DEFENDANT WITHIN THE LIMITATION PERIOD … Prejudice during this period may not be relevant under section 33(3)(a) or (b) but is clearly relevant as part of the overall picture.”

“Generally under section 33, when deciding whether it would be equitable to allow the action to proceed, having regard to the balance of prejudice to the respective parties under section 33(1)(a) and (b), “cogency” within section 33(3)(b) is, in our judgment, directed to the degree to which either party is prejudiced in the presentation of the claim or defence because the evidence is either no longer available or has been adversely affected by the passage of time.”

“His witness statement can, of course, be put before the court, but…(he)…will not be available for cross-examination.”

“…the position was made worse (or exacerbated) by that delay. That is not just a reference to the loss of (possible relevant) documentation but also to the well-known fact that memories become less and less reliable, the staler an action becomes. If authority is required for that assertion of common-sense, it can be found in Donovan v Gwentoys [1190] 1 All ER 1018 at 1024, 1991 LLR 472 at 479, Roebuck v Mungovin [1994] 1 All ER 568 at 574, [1994] 2 AC 224 at 234 and Price v United Engineering Steels Ltd [1998] PIQR P 407 at 414…”

“39 In my opinion, the overall delay in bringing the proceedings relating to the mid to late 80s had a profound impact on the evidence and the ability of the Archbishop and the Scouts to discharge the burden upon them to show that Fr Laundy was wrongly convicted. Mr Levinson submits that the convictions were important. They provided strong evidence that Fr Laundy committed the offences (including those alleged between 1990 and 1999) and the evidence to undermine them was weak. In making that submission he reminds us of Lord Brown's observations in paragraph 86 of the A v Hoare case (quoted above) that if there has been a conviction, I paraphrase, the problems of investigating antique events may be of less consequence. In the overwhelming majority of such cases that may be so because the conviction proves the tort. That is not to say that there might be great difficulty in exploring the consequences of an assault, or series of assaults, and other reasons why the limitation period should not be disapplied. 40 This case is different. The question of consent was at the heart of the defence run by both appellants and was supported by evidence from Fr Laundy. Even without any oral evidence from Fr Laundy, or any detail in a witness statement, the judge concluded that the appellants had discharged the burden in proving that the sexual touching was consensual during JL's adulthood. On his behalf, it is submitted that Fr Laundy's evidence would have added little, if anything, on the question of consent. I regard that submission as being unrealistic. Consent is the live issue in countless allegations of criminal sexual misconduct in respect of which juries hear both sides of the story, and ordinarily need to hear both sides to make the necessary judgments. Whilst the fact of sexual touching would not have been in issue, the immediate circumstances in which each event occurred would have been highly material to the question whether that touching was consensual. Moreover, and importantly, JL's case was a general one that his dealings with Fr Laundy over a period of about eight years before the assaults began resulted in his will being overborne. The court was deprived of evidence from Fr Laundy relating to that matter altogether, as well as other evidence that would possibly have been available if the trial had come on much earlier. The absence of Fr Laundy, in the context of a reverse burden of proof, was highly prejudicial to the appellants. In my view this is all the more apparent in view of the findings of the judge that JL was in many respects an unreliable witness, prone to exaggeration and with a number of significant inaccuracies apparent in the core accounts he had given.”

“It is clear that the important evidence as to quantum given by the experts would have been more cogent had they had the opportunity of considering the brothers’ cases closer to the time of the alleged abuse. The sequencing difficulties, and difficulties with recollection of dates, which each brother has affects cogency. The claim for special damage was presented by way of reconstruction…on a fanciful basis, but in any event, it is clear that the prospect of establishing clearly what the loss actually might have been, if any, has been significantly affected by the delay. The delay has caused the evidence of Father M (the alleged perpetrator) no longer to be available.”

“…there are issues as to whether any Claimant suffered in fact the alleged personal injury eg was Claimant A depressed, did he or she suffer from stomach or respiratory disorders? The evidence of the Claimants was sufficiently unreliable to suggest that that itself would be a major issue. Yet how could that now be tested for a period of perhaps thirty years? Some of that may be a diagnosis unsupported by any medical evidence; if it is, there has been no disclosure of even one contemporaneous medical report to illustrate the point, nor of any hospital records. The Defendants’ prospects of evidence challenging factual assertions as to past ill-health are obviously significantly and adversely affected.”

“There is no doubt that the absence of some of the records is potentially prejudicial to the Defendants and that it has made the task of the experts reporting on causation particularly difficult.”

“In one sense the evidence of the Defendants’ witnesses was just as cogent despite the passing of time. Whilst none of the alleged perpetrators actually remembered the Claimant specifically they were all able to put forward robust denials and give reasons why those denials should be accepted. They did not need to refer to documentation in order to be able to do so. It is clear that the amount of background documentary evidence in this case is very limited, particularly when compared with the case of IJ where there were 15 volumes of documents. Here there were two volumes of which half of the first volume was taken up by statements of case, witness statements and expert reports. It would be wrong however to judge every case by the standards of the case of IJ and find automatic prejudice to the Defendants due to the absence of a huge range of documents many of which had no real bearing on the case…”

“[the Claimants] accepted that they cannot prove what has been destroyed, save by inference in relation to 2/3 classes of documents. These were the Prison Standing Order 1957 documents; also personal detainee files containing a dossier for each detainee and records of interrogation which may/may not have been kept in the personal detainee files”

“98. For similar reasons I do not feel able to draw any inference that, on balance of probabilities, the other classes of documents, i.e. the detainee records/records of interrogation were deliberately destroyed by the Colonial Government/Defendant. If they were sent to the central registry in Nairobi, and do not still exist, were they destroyed? Just as there is no evidence of destruction taking place at camps, so also there is no evidence of destruction at the central registry.”

“Kenya are unlikely to have the time to ponder too long over the historical potential of the papers being reviewed by them. It is better for too much, rather than too little, to be sent home – the wholesale destruction, as in Malaya, should not be repeated.”

“The Defendant’s fundamental position in relation to the Test Cases remains the same: it is unable to respond positively and with particularity to the factual allegations made by the Test Claimants.” allegations made by the Test Claimants.”

“During the peak period in the years 1954, 1955, and 1956, there were at some times 18000 accommodated in the camp, and altogether more than 44,000 detainees passed through Manyani”

“I understand from Junior Counsel that it is not possible to determine whether further registers for Manyani or other detention camps may be held at KNA but not included on the typed and handwritten indexes copied by the Defendant”

“A Mau Mau money collector and scout in the Bahati District. Source: Manyani Screening Team”

“This man has been reported by 5 reliable sources as being a most active member of the Thika Central Committee. He was present at a meeting of the Committee when it was decided to bring 3 armed terrorists into the area to pursue a policy of murder of loyalists. He was also active in the organisation of collection and distribution of Mau Mau funds including the purchase and distribution of ammunition. If permitted to do so he will continue his subversive activities unabated, therefore this man should be detained.”

“Effective enquiry will be difficult, since many of the camps about which allegations made, are either closed, or, as in the case of Manyani, reduced to a fraction of their original size”

“Copies of the above were to be destroyed but the “retaining authority” (generally the Civil Service Commission) would hold its own copy or the original who could note such a document for destruction “at a later date”

“42. Prison Records will be examined annually by the Officer-in-Charge with a view to the disposal, by destruction, or otherwise, of those no longer required. The period for which such records should be preserved and the method of disposal are shown in Appendix IV” • There is therefore a requirement to examine the records annually, and what appears to be some element of judgment by the Officer-in-Charge in deciding whether to destroy after the minimum preservation period, albeit with the expectation that destruction will then occur. • Assuming that destruction was the norm in prisons after 1 year, there is no evidence, assuming that Appendix IV applied to camps, whether or not it was in fact the norm in those camps. Indeed, the Claimants elsewhere severely criticise records in the camps, saying, for example Claimants’ General Submissions at [90] : “Cs submit that the evidence shows that record keeping was not taken seriously, and the statutory provisions were simply ignored”

“In paragraphs 15 and 16 of Mr Myerson's skeleton argument he says that the destroyed documents would have enabled the Claimants to plead the precise dates of their detention and the punishments "for which no authority was given. They would enable the identification of the individuals responsible and provide information as to who employed and controlled the individuals. Not underlined in the judgment, but here for purposes of emphasis. Instead the Claimants must rely on memory, inference and general facts". He says that what has happened is that Test Claimants have misremembered dates and then efforts to consider thousands of documents suggested the correct date…”

“no good evidence as to which documents were destroyed, when, and, if so, by whom”

“The affidavit of Mr Callary explains that the Defendant's procedure was if a letter before action only requested medical records, then the Department of Radiology would not be informed and any x-rays would be destroyed and if no further request was made, because for unexplained reasons, the Defendant did not consider that the x-rays were part of the patient's notes. This I find wholly unacceptable. If it is still the case I believe the Defendant should reconsider the policy immediately. It shows a cavalier disregard for the rights of patients to have access to their records. How anyone could think that the x-rays were not part of the patient's medical records is beyond me. If the Defendant is so remiss as to have such a system in place, then this Court will pay little regard to any prejudice to their case that they may claim later.”

“To take that view of the relevance of the X-rays to the notes and to take the view that when notes have been requested the X-rays ought to be sent with them is, in my judgment, a permissible view to form and certainly not one with which I would wish to interfere as being plainly wrong. It seems to me, therefore, that the learned judge was perfectly entitled to have regard to that prejudice, but to discount it significantly.”

“It was a Home Guard. He cannot remember his name.” (v) Hola – • In the AIPOC at paragraph 37 TC34 pleads that he was whipped on his back and buttocks by the guards whilst harvesting cotton. • When asked for their names and any other information that would assist in identifying them, TC34 responded “the Claimant did not know their names.”

“I don't think it would necessarily have been easier in this gentleman's case to make a diagnosis three or five years after the event. One of the complicating factors which we've just been talking about is his alcohol use... The fact that he was drinking very heavily could have affected his ability to give an account of what happened in a clear way or to be able to assess some of the symptoms that are associated specifically with PTSD. The fact that he has now been completely sober for a number of years would probably assist in terms of his memory and his capacity to provide a clear and coherent narrative.”

“the incident involving the intestines was particularly vivid, and clearly for him, but also in my mind, just because of the very dramatic change in his persona when he was talking about it, he was virtually retching in front of me”

“I was just very struck with this gentleman about the way that within the interview he appeared to almost relive some of the events he was describing. His manner changed, his presentation changed. He became very, very overtly distressed sitting in the room with me when he was being asked to talk about some of these specific events. That was very convincing and compelling”

“The parties have been coming at it, if I may say so from different directions… they have, it seems, searched the documents with an emphasis on the individual test claimants and their experiences, whereas we have sought to put together an overall picture and slot the individual claimants in thereafter. But we are, I think, converging on a quite separate class of document which may elucidate particular experiences even though it does not mention test claimants directly. That is an exercise, I acknowledge frankly, we are still having to do.”

“A About one year Q So in 1953? A Yes”

“..if one is to accept the story of the women, corroborated as it is by medical evidence and certain other circumstances, the Guard Post at Makadara is nothing more or less than a torture post, used by certain members of the Tribal Police and Kikuyu Guard, together with the Headmen and Chiefs of the Administration, to endeavour by completely unlawful means to obtain information regarding Mau Mau offences….Such information need not, in fact, be of a truthful nature as, under conditions of torture, it is only reasonable to suppose that the person being tortured will say anything whatsoever, true or otherwise, in order to compel his or her torturers to cease their operations;”

“50. The suggestion that six officers were used to question one detainee at headquarters is implausible and exaggerated. The allegation about the severed heads Referred to later in this judgment. is also totally implausible make-believe: police had daily meetings where all officers of Nairobi including Special Branch and CID would attend. Such a subject would have come up formally or informally in these meetings, and it never did. I am certain I would have heard of it, and a lot of people would have got into trouble. We simply would not have stood for it. If anything untoward happened you had to report it to the 999 service, and it was recorded and investigated.”

“The Claimant suffered pain as a result of each assault as described by him and as detailed in the medical evidence and, specifically unbearable pain in his right eye, knees, shoulder, ankles, back and anus. He experienced permanent blurring of vision, particularly in his right eye. He is unable to walk without the use of a stick. Impairment of vision from assault lasted about two months. Assault to the anus caused extensive bleeding and pain relieving himself for about week, with full recovery within 6 months and no long term consequences; Symptoms from beatings to various parts of his body as alleged probably resulted in pain for approximately three or four months There are references to Mr. Heyworth’s cross-examination in parts of the amended pleadings. .”

“his belief will add to his distress.”

“the pain continued for a period of six months. During this period (TC34) continued to experience significant pain whenever he opened his bowels.”

“(TC34) also reports that he was beaten with sticks to his body. There was severe pain at the sites of the blows sustained and subsequently extensive bruising developed.”

“…it may be that he was confused in his account to Mr. Heyworth, as he mentions the right hip and back in relation to Mwea Camp. It is entirely possible he was confused as in his oral evidence to the court, he says he was not beaten at Mwea. The Claimants say that he may have meant he was beaten at Yatta, which he regarded as part of Mwea and that he was consistent in not being beaten at Mwea proper. I have to say I did not get that impression and it does not sit easily with what he apparently reported to Mr. Heyworth; nor was it mentioned at all in his witness statement or in his pleading. On the balance of probabilities, he was beaten at Ngong Forest, as he said in his evidence, and it is entirely probable that it caused injury, including injury to his hip when the perpetrators smashed at it.”

“…..it is not uncommon for patients to provide additional information in the course of a personal consultation to that previously provided in witness statements…. in my view it is not unreasonable for any Claimant to provide additional more detailed information regarding specific incidents……”

“I would only state that inconsistencies in recollections of trauma are extremely common, and particularly where there has been such a long time delay (e.g. Hepp et al 2006). There is nothing out of the ordinary or unexpected that I found in the account provided by the Test Claimants I assessed with regard to this specific issue.”

“Q. Were you then taken to the Ngong Forest? A. Yes…… MR SKELTON: Was it the same soldier who took you there? A. There were four. Q. Did the four soldiers include the soldier who had asked you questions earlier? A. Yes, he was. Q. Is he the soldier who you say fired a shot at you? A. Yes. Q. Is he the soldier that you say beat you? A. Yes. Q. Is he the soldier that you say forced soil into your anus? A. There were two of them. Q. Two soldiers who did that? A. Yes. There were -- two of them were with me and the others, they were with the girl. MR SKELTON: The others were ...? THE INTERPRETER: With the woman. MR SKELTON: Did the two who were with you include the soldier who had interrogated you and fired the gun at you? A. The one who shot at me, I wouldn't -- I -- yes, I cannot tell if he was on my side or on the side of the woman because these are not -- I did not know these people and they looked fairly alike because of the uniforms that they wore. Q. This is the camouflage you described earlier? A. Yes. Q. Who was in charge of this group?... A. Yes…… MR SKELTON: Was it the same soldier who took you there? Q. Did the four soldiers include the soldier who had asked you questions earlier? Q. Is he the soldier who you say fired a shot at you? Q. Is he the soldier that you say beat you? Q. Is he the soldier that you say forced soil into your anus? Q. Two soldiers who did that? MR SKELTON: The others were ...? Q. This is the camouflage you described earlier? A. I wouldn't know who was the leader…….”

“the camps were numbered from 1-30.”

“I felt disgusted and threw the body down. The prison guard saw this and beat me very much and ordered me to pick the body up. The prison guard beat me with a baton on the head and shoulders my nose was also bleeding.”

“it must be much more than that.”

“what I’m saying is when you get a large group of people things happen”. [The Defendant says the context of this remark is entirely different in that he was talking about what happened at screening at the camp See Witness statement at paragraphs 24-27 in which prison guards were not involved. He denied any systematic beatings or other use of unlawful force or any deaths resulting from beatings Paragraphs 21 & 42 . He did not remember a mortuary at the camp as alleged by TC34 Paragraph 43 . He said he found TC34’s allegation to be extremely unlikely Paragraph 44 .] (ii) Detainees carrying dead bodies at Manyani: • TC 13 in his Witness Statement at [23] said: “the dead would be buried by the detainees. I never buried anyone.” • TC 19 in his Witness Statement at [22] said: “trenches were dug and bodies were buried there. The Prison Guards would guard detainees and take them to bury the dead detainees.” • In his oral evidence TC 31 said: “there was a group that would transport the dead to go and bury them.” (iii) Detainees beaten, some for not doing what they were told or not doing it well enough, or more general violence: (a) A complaint by KPRO John Knights. The Defendant has tried unsuccessfully to trace Mr Knights Ms Pollock 5th Witness statement MGP13. . The complaint was that in August 1954: “at Manyani the unfortunate detainees have to run the gauntlet of a double row of African prison warders, who do no hesitate to belabour them with various weapons they carry. On several occasions I have seen and heard the sound of blows being given.”

“There are the most stringent orders against any beatings up. In July when there was some trouble in four Compounds a certain amount of deterrent roughness was employed but this was controlled.”

“Several askaris whose feelings have got the better of them and who have used batons unnecessarily have been punished for so doing.” (c) An anonymous letter from Manyani detainees to Parliamentary delegates There was a Parliamentary delegation visit in early 1957, so the letter may date from then. . It is undated but refers to events in 1956 at Manyani. Amongst other things it says: “we refuse to work riot squad get into our compounds and beat us”; also “we claim for accomplishing to be beatten [sic] by officers and their warders. To be forced to work.” (d) A further letter to the Secretary of State from Manyani detainees dated 10 April 1956. This refers to deaths at Manyani in 1954/5. It says: “It is believed that a “riot squad” of warders in the camp, and which always was “alert” at any call was an outcome of a good portion of these deaths. Many detainees have witnessed their fellow men dying in the scene of operation of the riot squad in the Manyani compounds, by the hands of these assailants.”

“..those people who came from camps and who are acting as the screening team have got a very bad habit of beating people…Some are calling themselves the Special Branch and some call themselves the CID”. [This relates to screening and not to allegations of brutality by prison officers] (f) An anonymous detainees’ letter dated 1 August 1957 alleges beatings and deaths, said to be at the hands of warders; also that the riot squad punished detainees and forced them to work. (g) An anonymous detainees’ complaint of January 1958 makes reference to running the gauntlet. (h) A Manyani Special Detention Camp detainees’ complaints letter dated 15 February 1958, with 5 named authors. The detainees claim: “Rehabilitation beats us on patriotic principle just as it bullies us on manly principle. Can the mental mutation be achieved through punishments, torture, bullying, inhibition and all iniquitous infernal treatments?”

“to induce confession and self-incrimination, prison and rehabilitation officers unreasonably make onslaughts on detainees”. (i) Allegations by Victor Shuter, a prison officer who arrived at Manyani in November 1955. These included that group punishment was “common practice at Manyani”

“I could hear detainees in the other compounds shouting as they were being beaten. I could see the persons being beaten, but I do not know any of their names. They were being beaten with sticks, shaped liked handles of a hoe. They were beaten by prison warders. I do not know any of the warders. There would be no Europeans present…..Apart from this I saw no other ill-treatment at Manyani” [This was in Compound 12 and related to hard-core detainees who refused to be screened. Gichini also said he never heard of detainees complaining they had been beaten by screeners. He also refers to people being aware of appeals and exercising that right]. Next, Mr Kimani, at Manyani November 1955 to January 1957, says that on arrival if persons did not walk fast enough, the warders hit them with their rifles and with canes; he did not see anyone injured as a result of this; in another incident, recaptured escapees were beaten with canes Was this lawful corporal punishment? ; also that two named officers hit detainees with kibokos. Finally, Mr Kenyari, in Manyani December 1955 to June 1957, described escapees being beaten for escaping, as many as 10 hard-core detainees beaten by warders till they were unconscious and a detainee being slapped in the face by the Commandant for disobeying a compound headman. (k) The Jack Report also contains a statement from Brigadier Durrant who had been responsible for Manyani from April 1956 to February 1957. In his statement he said he investigated every complaint that came to his notice; his difficulty was to “sift camp rumour, malicious gossip and fact…..I was…left with unconfirmed suspicions of ill treatment. These suspicions were not allayed by a minority of the Europeans…This minority did not possess the attributes for the proper handling of Africans. The Deputy Commissioner and the Commissioner both admitted to me in private that some of the officers were bad, but they denied me any disciplinary powers over officers…. I had little confidence in my superiors by the latter part of 1956…”

“This was not an independent enquiry, not least because it failed to obtain evidence from non-cooperating detainees…. Notwithstanding the limited scope of the enquiry, the statements obtained revealed evidence of widespread unlawful violence…”

“We would work in the quarry up to about 3 pm without rest, food or water to drink. During this forced labour we were guarded by the Kenya Police Reservists who also hit us whenever they thought we were not working well, fast enough or resting. I was hit severally using the handles of ‘jembes’ on my shoulders and back.”

“I and others were just beaten for no reason; if you refused food you would be beaten. If one person did something wrong, collective punishment was dealt out to everyone.”

“the Kenyan Police frantically whipped at everyone passing with small clubs and canes for no reason. I was hit on the head, shoulders and every part of my body.”

“…the first eleven persons in this category were detainees all of whom had been confined in one or more of the camps in which Shuter served. They represented that class of persons on whose behalf Shuter has made allegations of cruelty at the hands of prison officers. One might, therefore, reasonably have expected considerable corroboration of Shuter’s allegations from this particular quarter, if such allegations were founded upon true facts. But in the event, there was hardly any corroboration discovered in the specific allegations made… It is now on record that some of these detainees did receive ill-treatment from prison officers, but the instances are isolated and there is no indication whatever from this category that there was any systematic cruelty practised whether at Manyani or Fort Hall. It must be borne in mind that a number of these detainees were “hard-core Mau Mau” and that the truth of their statements fell to be considered in the light of this self-confessed stigma. Nevertheless, it was necessary from the point of view of my enquiry to place their testimony on the record along with that of the others.”

“Every effort has been made to collect information from as wide a source as possible, from prison officers, from those who have been detained, from visitors, from medical officers and from administrative officers. The object has been to obtain as general a picture of the detention camps as possible without emphasising any one particular point of view”

“That is, we submit, rather suggestive of the fact that staff lists weren’t exactly readily available.”

“..[TC34] became visibly distressed, holding his head in his hands and taking a few minutes to compose himself, when describing the incident when he was covered with the intestines of a dead man, whose body he had been carrying from the mortuary.” (ii) In her report at [128] she said: “..he still experience flashbacks, in particular “feeling” and ”smelling” the man’s intestines as they spilled over him..” (iii) In oral evidence she said: “I was just very struck with this gentleman about the way that within the interview he appeared to almost relive some of the events that he was describing. His manner changed, his presentation changed. He became very, very overtly distressed sitting in the room with me when he was being asked to talk about some of these specific events. That was very convincing and compelling.”

“…I remember one incident which is clear in my mind in which I had to deal with at least a dozen casualties of detainees which included fractures. One of the detainees, I particularly remember, had a fracture of the humerus. I heard that there had been trouble at the camp. I did not go into the matter deeply. These 12 detainees had been brought to the hospital. The injuries on the 12 amounted to minor bruises to the fracture described above (sic). They were brought to the hospital by a European prison officer and warders. In the long space of time I would not and cannot recall his name. I understood that all the detainees came from one compound…. ….I have treated detainees for minor injuries such as small bruises and occasional contusions. The injured detainees always alleged that they had been beaten. There were always conflicting stories on these injuries, the other party, both European officers and warders, mainly European officers, who said the party had been injured by working in the quarry and working parties. Some of these injuries could have been caused by pieces of flying rock. I have no recollection of any particular incident. These cases which came to my notice were indeed very few, and few and far between. As Medical Officer in Charge there was nothing to show that a policy of systematic beatings and ill-treatment of detainees was being practised in the camp…. As Medical Officer I did frequent camp inspections. I could and did go anywhere within the camp. This included the detainee quarters and compounds. Never did I see or find injured detainees in any of the huts. I spoke to the detainees on my tours of the camp. I never had any allegations of ill-treatment raised to me by them…”

“this injury is not pleaded, but Cs submit that it is consistent with a defensive injury.”

“(v) although the submission can still be made as this is not to be relied on as a cause of action, it would be so undermined by the above prejudice that it would not have a real prospect of success.” (b) There is in fact an inconsistency here. The only report of an injury to the left hand at Manyani was to Mr Heyworth. It was not mentioned in the AIPOC, TC34’s witness statements or to Professor Mezey. This was the subject of a Part 35 question to Mr Heyworth. The question and his response were: “7. Do you agree that, in contrast with the account given by the Claimant to you, his Particulars of Claim and the Claimant’s witness statement: ….. (b) do not describe the Claimant’s alleged “injury to his left hand which resulted in a wound with subsequent scarring” when allegedly at Manyani Camp or the mechanism of that injury (see page 5 §7 and page 14 §7 of your report)?” ………….. “7. I will preface my comments to these questions by noting that it is not uncommon for patients to provide additional information in the course of a personal consultation to that previously provided in witness statements. ….

“symptoms from beatings to various parts of TC34’s body probably resulted in pain for approximately 3-4 months [33-8141-42: 33-8144-45].”

“440. Around this time (Spring 1955), it appears that Manyani and Mackinnon Road became the main camps for holding category “Z” detainees because such detainees were being transferred there from other camps where attempts to rehabilitate them had been unsuccessful, or where they had otherwise revealed themselves as representing the “hard-core”

“7. Do you agree that, in contrast with the account given by the Claimant to you, his Particulars of Claim and the Claimant’s witness statement: …… (c) do not describe the alleged incident “in the course of [the Claimant’s] detention at McKinnon Road Camp in which he was violently slapped whilst carrying a load of sand”, following which the Claimant allegedly was “repeatedly beaten with sticks and batons, sustaining blows to his shoulders, hips, lower back and face” as he is reported as having alleged at page 6 §2, and §§6-7 of your report? (d) describe an alleged incident during which the Claimant alleged he was beaten following his striking a prison guard with a mallet (see §25 of the Particulars of Claim and §38, c.f. page 6 of your report)?“ …………. “7. I will preface my comments to these questions by noting that it is not uncommon for patients to provide additional information in the course of a personal consultation to that previously provided in witness statements…… (d) I would agree with this statement. (e) I would agree with this statement” (d) I would agree with this statement.

“Gikuni is not a camp, it is my home.”

“32 the Claimant was then transferred to went back to his home in Kikuyu in about 1959 camp. Whilst at Gikuni Camp there, a man whom the Claimant describes as a Home Guard, but who was probably a Tribal Policeman entered the house of a friend he was visiting. The man hit him with the butt of a gun asking him why he did not stand up. The Claimant hit the man back….”

“he sustained two blows to the right shoulder with a gun butt. He was violently slapped and subjected to repeated beatings, including blows from sticks, being kicked and blows from the butt of a gun.”

“..the Defendant notes that the Claimant admitted to Professor Mezey that he was later arrested in or around ‘Gikuni’ after he had stabbed a Home Guard with a knife ‘on his buttocks’ [sic]. This account does not appear in the Claimant’s Particulars of Claim, Witness Statement and/or Part 18 Response.” • A Part 35 question had been put to Mr Heyworth prior to trial. The question and his response to it were: “7. Do you agree that, in contrast with the account given by the Claimant to you, his Particulars of Claim and the Claimant’s witness statement: …. (g) describe the Claimant allegedly being hit on his shoulder with the butt of a gun by a man following the Claimant’s entry into a house of a friend at Gikuni Camp (see §32 of the Particulars of Claim and §45 of the Claimant’s witness statement), rather than having been (i) “violently slapped by a member of the Home Guard” (see page 7 §1 of your report), and/or (ii) “subject to repeated beatings, including blows from sticks, being kicked and blows from the butt of a gun ... sustaining blows all over his body in the course of these assaults” (see page 7 §§2-3 of your report)?” …….. “7. I will preface my comments to these questions by noting that it is not uncommon for patients to provide additional information in the course of a personal consultation to that previously provided in witness statements…… (g) I would agree with this statement.”

“46. When I went home, other Home Guards came to my home with a British officer. They knocked at my door. I asked who it was and they said it was the District Officer. I told them to come back the next day “It was not convenient”

“the court that he was taken to was the Kikuyu court held nearby”

“37. Whilst at the Hola detention camp the Claimant was allocated a 4-acre area of land being used as a cotton plantation. He was ordered to harvest the cotton. Whilst doing so he would be whipped on his back and buttocks by the guards. After 6 months he was able to lease the 4 acres and his family was allowed to join him. He remained at Hola for about three years in all, until shortly before Independence in 1963”

“..these were the lands that we were working on after being released, and after the Emergency some people were given 4 acres of land each. The four acres would be divided into 8 pieces and we had to harvest all the cotton.”

“I have looked again at the Claimant's [TC34’s] witness statement, and note his account of being accommodated in 'houses', of detainees working on the cultivation of cotton on nearby land, which continued after release, and of handover of that land to the detainees after the Emergency. That does not fit with my recollection of Hola detention camp. I think he may be referring to Hola open camp, which was a completely separate area, for rehabilitation. The main camp had a barbed wire fence. The farmlands were completely separate.”

“One of the British officers fired a gunshot aimed at my head but it missed…This was to threaten me to confess to being mau mau and also were (sic) the guns were. At that time I was not worried about dying. This was because I did not know anything about the guns and if I lied to them they would have asked me to take them to where the guns were…” • Paragraph 28 of Professor Mezey’s report records that “(TC34) did not consider himself to have been Mau Mau”. • The Reply at [5] says: “….the Claimant accepts he took the oath, but denies as a result he was or could properly have been characterised as being Mau Mau (or associated Mau Mau) and/or in the alternative a threat to public safety.”

“He was placed in a room with a cupboard. There were 2 British Officers and 4 Kenyan Policemen in the room. They were all white people. A slim, white British Officer wearing a green uniform with shoulder epaulets of a different color. He went to the cupboard and opened a draw (sic) which contained 14 human heads. One head was lifted up and placed on top of another. The officer told the Claimant that his head would be on the table if he did not tell them where he had hidden guns.” • In his witness statement at [15], TC34 says: “I was taken into a room which had a cupboard. One of the drawers was open; I saw 14 heads of dead people that had been put there. One head was lifted up and placed on top of another. I was told my head would be the table if I did not tell them where we hid the guns. I was told there was a space for my head in the drawer…” • The Defendant pleaded RAID at [17] that it had no knowledge and could find no record of British officers or Kenyan Police having severed a head during the Emergency, or of severed heads having been collected or kept in a cupboard or other storage medium, or having been shown to detainees. In his Reply at [14] TC 34 responded: “…the Claimant would like to clarify that he cannot be precise about the number of (sic) though he thinks it was more than three or four [contrary to paragraph 15 of his witness statement]…..He remembers clearly, however, that they moved one head and held it above another head, making a space. They told him the space was for his head if he did not reveal where the guns were hidden”. • In TC34’s supplemental witness statement at [7] he says that he had no time to count the heads. He continues: “When the officer got one head from the middle drawer. He held one head above another head making a space. I was told the space was made for my head if I did not reveal where the guns were hidden. There were more than 3 or 4 heads in that drawer”. • TC34 told Professor Mezey that he was shown the severed heads of three or four people There is also an inconsistency about whether the drawer was already open or not . • When cross-examined TC34 said: “he took out a head and removed it and put it on top of other heads which were there and he told me that the space he had created by removing a head would be occupied by my own if I refused to answer….”

“He described extreme feelings of fear and distress, and he said that he has never forgotten the sight of those heads; even today he feels unable to think about it or talk about it as it makes him feel so bad. And the way that he described it was again very characteristic of an experience that he was trying to avoid and to put into the background because, again, physically and in the room, it was possible to see him becoming increasingly distraught, simply by having to describe events….. I considered that what he was describing in terms of the thoughts about the severed heads and the way that he was presenting in the interview was consistent with him actually experiencing a flashback in the room, because there was a sense in which he was not in control, fully, of his emotions, and actually becoming rather overwhelmed by the experience of that memory. So we had to quickly move on to another subject because he was becoming so distressed. I would describe that as a flashback”

“of course, I cannot speak as to what the uniforms were before, or after, my time working in the camp.”

“……these are Test Cases. If D’s assertion is simply that these TCs cannot fairly have their cases adjudicated then it must be said of all TCs. Otherwise the GLO has failed to achieve its object…. The logical outcome is that many people were abused, but none of the 40,000 people in this action can show they were abused…….”

“……it would be equitable to allow (the) action to proceed having regard to the degree to which – (a) the provisions of section 11…prejudice the (claimant)…and (b) any decision of the court….would prejudice the defendant…”

“No man is an island entire of itself”

“144. As to cogency and reliability, it must be the case that Gestmin and the cases that follow it have a clear effect on the approach to S33. A legal system which relies mainly on oral evidence, either because very little is reduced to writing, or because oral evidence is regarded as being something that a Judge can reliably assess for truth, reliability and accuracy, or both, is bound to look at the effect of the passage of time on memory, and be concerned about delay. Once that legal system recognises both that documentation increasingly became the medium of communication as the 20th century went on, and that memory can be unreliable for many other reasons than the mere passage of time, the approach obviously alters. Memory can be tested, and documentation is likely to be more reliable – both as against memory and as a reliable record of what happened.”

“A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the Court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant.”

“In my judgment where the existence of a claim and sufficient particulars of it are given so late that it is virtually impossible for the defendants to investigate it, either because witnesses cannot be traced, memories will inevitably have faded or vital documents are lost, a defendant is gravely prejudiced if section 11 of the Act is disapplied, because he is almost powerless to defend the case on its merits. In such a case it will require exceptional circumstances to outweigh the prejudice and to bring the scales down in favour of the plaintiff. As Lord Griffiths made clear in the passage I have quoted, the whole purpose of the Limitation Act is to protect defendants from the injustice of having to meet stale claims.”

“Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that would be one thing; if, however, a complaint comes out of the blue with no apparent support for it… that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations – see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.”

“..but I respectfully think that his observations on the exercise of the discretion are particularly valuable..”

“It should be remembered that the reason for limitation provisions is to protect defendants from the injustice of having to meet stale claims. And a judge, when considering whether to disapply under section 33, particularly where, as here, there is difficulty in testing old and unsupported complaints, should not form a concluded view on their validity for the purpose of determining the existence and extent of potential prejudice to claimants of being deprived of a remedy. Such allegations are so easy to make and so difficult to refute that the danger of injustice is acute. Here, the Judge had to bear in mind the possibility of them being fabricated or exaggerated for financial gain in the wake of publicity about Bryn Alyn and about other care homes where similar conduct had been alleged. Yet his findings, both on the substantive issues and the effect of delay on cogency were based mostly on the strength of the claimants' evidence alone and without rigorous testing by way of cross-examination derived from instructions or contemporaneous records, or of possible contradictory evidence that might have been available if the claims and the trial had been earlier. It was, as he acknowledged in his opening remarks on the section 33 issue, an inherently difficult task, involving inevitable prejudice to the defendants in attempting to meet uncorroborated claims of this sort so long after the event…..”

“If a judge is minded to give such a huge extension of time under section 33, then he is under a duty to explain his reasons with meticulous care.”

“By no means everyone who brings a late claim for damages….. however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour”

“…is a corrective for injustice where the circumstances allow.”