Kimathi & Ors v Foreign and Commonwealth Office [2018] EWHC 605 (QB)

Case No HQ13X02162[2018] EWHC 605 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/03/2018
Before
MR JUSTICE STEWART
Between
Kimathi & orsClaimantsForeign And Commonwealth OfficeDefendant
Simon Myerson QC (instructed by Tandem Law (Lead Solicitors)) for ClaimantsGuy Mansfield QC, Niazi Fetto, Mathew Gullick & Stephen Kosmin (instructed by Government Legal Department) for DefendantHearing Hearing dates: 16 March 2018
Judgment

Introduction

[1]By application notice dated 21 February 2018 the Claimants asked for “Permission where appropriate for the Claimants to adduce further documents in support of their claims due to uncertainty over existing evidence and disputed documents.” The estimated length of the hearing of the application was 5 hours. It was supported by a draft order and two schedules, numbered Schedule 1, Schedule 2 and Schedule 3. In support of it was a witness statement of Steven Martin, a solicitor acting on behalf of the Claimants. The witness statement is dated 21 February 2018.[2]A number of the documents which were in issue were then subject to agreement. On 27 February 2018 a full day was spent in court. Further agreement was reached and some rulings made. However there remained a main issue and some subsidiary issues. The main issue concerned the fact that the general submissions and individual Test Case closing submissions contain a number of documents which were not included in the Test Case documents lists served in June 2017. The Claimants sought an order that they were entitled to rely on all those documents.[3]A hearing was listed for 13 March 2018. Extensive skeleton arguments were filed and the Defendant filed a detailed witness statement from Ruth Bradbury dated 7 March 2018. There were also Scott Schedules for over 150 documents. As far as Test Claimant cases were concerned these dealt only with TC20 and TC34.[4]It became apparent from the issues and the schedules of documents objected to, that there was wholly insufficient time properly to consider the matter on 13 March 2018. Fortunately, the parties met and narrowed the dispute. A Court hearing by way of mention/case management took place on 13 March 2018.[5]A substantial issue remains on the documents. This is that the Defendant objects to the Claimants relying, in the Test Case submissions, on documents which it alleges contradict the pleaded case in the Individual Particulars of Claim. Some, but not all, of these documents are said to be in conflict with judgment(s) of the Court in 2017, refusing applications by the Claimants to amend the IPOCs (Individual Particulars of Claim).[6]The hearing of this remaining issue is listed for 10 April 2018. However, it was thought sensible for the court to rule on a preliminary matter, namely the interpretation of certain paragraphs in Orders dated 31 March 2017, 30 June 2017 and 28 November 2017. The reason for this is:(i) If the Claimants’ interpretation is correct, namely that they are not in breach of those orders, then the only issue is the Defendant’s objection to documents said to contradict the pleaded cases in the IPOCs.(ii) If the Claimants are in breach of those Orders, then in order to rely upon the disputed documents, the Claimants first need relief from sanctions under CPR Rule 3.9. In dealing with relief from sanctions, the Defendant’s objection is likely to be an integral factor; alternatively it is a second, separate point.

The Interpretation of Orders Relating to Individual Test Claimants

[7]In this case documentary evidence had to be formally adduced by a party in order to be relied upon. It was not enough for the documents to be in the electronic Caselines bundle.[8]On 31 March 2017 I made an order in respect of documents (amongst other things). The relevant paragraphs are: “20. The Claimants shall identify the documents on which they rely in respect of their Generic case by the close of their case, and in any event by 4pm on 28 April 2017. 21. The Claimants do file and serve a list of documents upon which they rely in respect of the individual cases by 4pm on 2 June 2017. 22….the Claimants shall not be permitted to rely upon further documents without the permission of the Court save in response to documents adduced by the Defendants.” [For the purposes of this judgment it is paragraphs 21 and 22 which are material. It is to be noted, however, that a clear distinction was drawn between the generic case and the individual cases. The purpose of this was so that the Defendant would know in advance the documents relevant to the individual cases.][9]Two further orders were made which need consideration, these are: (i) The Order of 30 June 2017 which provided:
“2. The date in paragraph 21 of the Order dated 31 March 2017 be varied from 2 June 2017 to 30 June 2017. 3. The list of documents referred to in paragraph 21 of that Order shall: (a) Identify the Test Claimant in whose case reliance is placed on a particular document; (b) In each case provide the Caselines reference for the document. (ii) The Order of 28 November 2017 which provided: “10. The Claimants are to identify documents adduced in relation to each of the Test Cases by list with the closing submissions in relation to the relevant Test Claimant. Closing submissions shall indicate reasons for reliance upon any document adduced. Documents contained within the Claimants’ lists of Test Case documents served on 30 June 2017 may otherwise not be adduced unless already adduced elsewhere or with the permission of the Court. 11. The Defendant is to identify documents adduced in relation to each of the Test Cases by list, to be filed and served no later than the date for closing submissions in relation to the relevant Test Claimant. Closing submissions shall indicate reasons for reliance upon any document adduced. For the avoidance of doubt, the Defendant requires the permission of the Court to adduce documents not already adduced after the relevant date for service of closing submissions. 12. The Claimants are to identify any documents in response to Defendant’s Test Case documents by list, to be filed and served no later than the date for its Reply to the Defendant’s closing submissions in relation to that Test Claimant. Each list must identify: (a) The document or submission the document is adduced in response to; and (b) A brief headline as to the point to which that document goes, by reference to the submissions in response as appropriate.” (a) The document or submission the document is adduced in response to; and (b) A brief headline as to the point to which that document goes, by reference to the submissions in response as appropriate.”
[10]The normal rule is that once a document is adduced, it is adduced for all purposes in the case. However this can be modified by Order of the Court.[11]The Claimants’ submission is that neither the Order of 31 March 2017 nor the Order of 30 June 2017 displaced the normal rule. The further submission is that the March 2017 Order, paragraph 21, did not distinguish between individual cases at all and merely obliged the Claimants to identify the documents relied upon in the individual cases as a whole.[12]The approach to interpreting orders was recently encapsulated by Nugee J in Falmouth House Limited v Abou-Hamdan [2017] EWHC 779 (Ch). He said this:
“38. The principle…is that one can look at a judgment to elucidate what an order means – an order is after all intended to implement what a judge has decided – but one cannot change the wording of an order by reference to the reasons given for the judgment….Ms Meech helpfully referred me to the decision of the Court of Appeal in Gordon v Gonda [1955] 1 WLR 885 where an order that unambiguously declared the defendant to be a trustee of certain property for the plaintiff could not be interpreted as doing something else by reference to the pleadings which showed that the action was a common form partnership action in which such an order would not normally be made…; and, by way of contrast, to the decision of the Privy Council in Sans SouciLtd v VRL Services Ltd[2012] UKPC 6 where the Court of Appeal of Jamaica had remitted to arbitrators “the issue of damages”, but reference to the reasons given by them for allowing the appeal showed that they did not mean by that the issue of damages generally but only one particular matter that affected the level of damages. Lord Sumption…said at [16]: “Of course, it does not follow from the fact that a judgment is admissible to construe an order, that it will necessarily be of much assistance. There is a world of difference between using a Court's reasons to interpret the language of its order, and using it to contradict that language.” ………. 39. I accept therefore that the reasons expressed in a judgment can be used to interpret the language of an order but cannot be used to contradict it; and the same must be true where the Court does not deliver a formal judgment and the reasons for its order have to be collected from the interchange between judge and counsel.”
[13]Looking at the March 2017 and June 2017 Orders my interpretation is as follows:(a) Paragraph 21 of the 31 March 2017 Order contained an ambiguity. It could have meant that the Claimants had a duty to file a list of documents in respect of the individual cases without any breakdown as to which documents were relied upon by each individual. Alternatively it could have meant a list in respect of which each individual stated which document he or she relied upon. There was some discussion about this in court on 17 May 2017. Mr Myerson clarified with his junior (Ms Ruck) and said “The documents will identify which Test Claimants they refer to and they will, subject one exception, have the Caselines reference…” This was the backdrop to the June 2017 Order.(b) In paragraph 3(a) of the June 2017 Order the Claimants were clearly required to identify the Test Claimant in whose case reliance is placed on particular documents. The factual situation put before the Court by Mr Myerson by way of example was if a document was on TC1’s list (or section of list) and TC2 wanted to rely upon it even though it was not on TC2’s list or section of list, was TC2 able to rely upon it? In my judgment, in that circumstance, there was clear non-compliance with paragraph 3(a) of the June 2017 Order. Theoretically, on the Claimants’ submission a document could be on TC1’s list and not on any other Test Claimant list. Nevertheless all the other Test Claimants were covered by the document being on Test Claimant 1’s list. I do not accept this. Therefore in the example given by Mr Myerson there was non-compliance with 3(a).(c) The submission then concentrated on whether there was any sanction imposed for such non-compliance. The Claimants’ submission was that the only sanction imposed by paragraph 22 of the 31 March 2017 Order applied if a document was not on the list required by paragraph 21. Therefore the sanction set by paragraph 22 did not apply in Mr Myerson’s example. I am against the Claimants on this also because: (i) The Orders of March and June 2017 need to be read together. This is apparent on their face. (ii) The requirement of the list was clarified by paragraph 3(a) of the June 2017 Order. (iii) The clear objective construction of paragraphs 21 and 22 of the March 2017 Order, as clarified by paragraph 3(a) of the June 2017 Order, is that a Test Claimant could not rely upon further documents, unless it was on the list and identified the Test Claimant in whose case reliance was placed on a particular document.[14]That is the end of the matter. However, for completeness, I will touch upon the Order of 10 November 2017 since the Claimants submitted that it assisted their case on these points.[15]In the June 2017 hearing the Defendant had sought some explanation in relation to the individual Test Case documents. That problem was resolved by the parties agreeing to serve the explanation with the individual Test Case closing submissions. On 15 September 2017 the Defendant made an application because it says it felt that no progress was being made in this regard. That hearing took place on 3 October 2017. There were further hearings on 7 November and 22 November 2017 giving rise eventually to the Order of 28 November 2017. In a letter dated 18 October 2017 from the Defendant, the Defendant said “…the Defendant still does not know what case it has to meet in relation to Test Case in terms of the 100 or so contemporaneous documents to be relied upon in relation to each Test Case…” The Claimants’ response of 19 October 2017 was:
“We note you complain that the Claimants have served lists of documents that each Test Case may rely upon but has yet to narrow down those documents further. You are aware that it is proposed this will be addressed when the Claimants serve written closing submissions…”
This section of the correspondence (together with other exchanges both in Court and in correspondence) is consistent with a requirement that each Test Case document list contained the documents that that Test Claimant was entitled to rely on in support of his/her case.[16]The exchange set out above in relation to narrowing the number of individual case documents and providing an explanation for them was then resolved by the 28 November 2017 Order.[17]I turn briefly to the interpretation of paragraph 10 of the Order of 28 November 2017. The first point to note is that this order does not purport to vary the previous provisions ordered. This is relevant in construing it as conforming to those provisions. Nevertheless, even without that, I construe paragraph 10 as follows:(i) The Claimants, by the first two sentences of that paragraph, had two duties when filing the closing submissions on behalf of a Test Claimant. The first duty was to identify documents adduced in relation to each Test Claimant “by list with the closing submissions in relation to the relevant Test Claimant”. The second was that the closing submissions should indicate reliance upon any documents adduced.(ii) The meaning of “otherwise” in the second sentence is that if, when filing closing submissions, either of these two preconditions was not complied with, then documents contained in the lists served on 30 June 2017 may not be adduced. This is then a further restriction on the use of documents. Even if the documents were on the 30 June 2017 individual lists, they could not (subject to the two provisos) be used in either of the individual case closing submissions or at all in the case.(iii) There was the usual proviso that the court could give permission. In addition was a proviso “unless already adduced elsewhere.” The Claimants submit that that means that even if the documents were not mentioned in submissions they could be adduced. I disagree. They further submit that any document not on one Test Claimant list but on another was therefore “adduced elsewhere” and can be relied upon. Again I disagree. The paragraph in my judgment does not in any way undermine (a) the requirement to provide a final list in relation to each individual Test Claimant (see the March 2017 and June 2017 Orders) or (b) the sanction for non-compliance. I am cautious about going further than is necessary by straying into what “unless already adduced elsewhere” means, as that might cause problems if that matter arises in a different factual context. Suffice to say that this is a proviso which applied only in circumstances where the Claimants did not comply with one of the two duties imposed earlier in paragraph 10. It does not permit of a construction which would totally traverse the meaning and effect of the previous Orders.[18]I have set out above paragraphs 11 and 12 of the Order of 28 November 2017. Paragraph 11 deals with the duties of the Defendant in adducing documents in response to the individual Test Cases. Paragraph 12 enables the Claimants to adduce documents “in response” to the Defendant’s documents. Therefore both paragraphs are consistent with a proper targeting and restriction of each side’s documents.[19]I now turn to the Claimants’ submissions in their skeleton on the merits of the arguments on documents. Some of these have been overtaken by agreement between the parties as to which documents can be relied on. Again, I deal with them for completeness. My reasoning is not based on these matters, though they do confirm it. They were not the subject of full oral argument and are therefore further observations only. The Claimants submit that apart from the Orders themselves the Defendant’s position fails any reality test. They say this for the following reasons. After each reason I will give my comments:a. The Defendant’s position relies on the implicit proposition that the Claimants should have understood the entire case for each Test Claimant in June 2017 before the Defendant said a word about its own case and that the submissions for each Test Claimant should be limited to what the Claimants understood in June 2017. - That was precisely what was intended. Paragraph 22 of the Order of 31 March 2017 allowed the Claimants to rely on further documents in response to documents adduced by the Defendant in the individual cases. The provision which enabled the Claimants to rely upon documents in response to the Defendant’s submissions and documents, so that the Claimants would not be prejudiced thereby was in paragraphs 24-31 of the Order of 28 November 2017. This, in relation to generic documents, gave the Claimants a provision to rely upon documents in response. That the Claimants have used, and the parties have agreed a number of such documents. I ruled on three of those documents in February 2018.b. The Defendant says that because the Claimants did not include in each TC list of documents the Claimants had opened (and were still opening when the Order of 31 March 2017 was made), documents opened cannot be relied upon by the TCs in proving their own case. The Claimants submit that this is inapt because the June 2017 list of documents is relied upon for the TC cases, whereas the December/January lists are an index of the documents actually referred to in the individual submissions, case by case. - For the reasons I have already given, the Defendant’s submission is not inapt. It is correct. The June 2017 lists were a list for each TC individually. That list was to be narrowed and explained, not expanded, by the Order of 28 November 2017.c. Although the Defendant prepared eight files of documents for cross-examination of the Test Claimants and the Claimants agreed that the Defendant need not put them but could rely upon them anyway, the Defendant submits that those documents cannot now be relied upon by the TCs because they were not on the particular TCs’ lists. - This is the effect of the March 2017 and June 2017 Orders.d. Although the Defendant was provided, in advance, with copies of the documents to which the Claimants would refer in cross-examination of the Defendant’s witnesses, those documents cannot now – says the Defendant – be relied upon by individual Test Claimants because they were not in the lists served. - That also is the effect of the March 2017 and June 2017 Orders. There is a specific provision in the Order of 30 June 2017, paragraph 12, in this regard. It provides:
“The Defendant, if it wishes to assert that a particular document notified under paragraph 11(i) above which was not put to a witness would have been the subject of a legitimate challenge on grounds of relevance or admissibility if it had been put, shall give notice to the Claimants within 3 days of receipt of the information in paragraph 11 above. In absence of such notice, documents notified under paragraph 11(i) above shall be deemed to have been adduced in evidence.”
Therefore this was the provision whereby documents in such instances would be deemed to have been adduced in evidence. The Claimants can rely upon them in their generic submissions. However if they wished to rely upon them in relation to the Test Claimants then they were required to be on the individual Test Claimant lists.[20]Therefore, in order to adduce any documents not on an individual Test Claimant’s list served by 30 June 2017, the Claimants need relief from sanctions under CPR Rule 3.9. The words “without the permission of the Court” in para 22 of the 31 March 2017 Order do not detract from the sanction in that paragraph: cf the note to the similar provision in Rule 32.10 at para 32.10.2 of the White Book 2017.

Cited in 3 later judgments