Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 686 (QB)

Case No HQ13X02162

[2018] EWHC 686 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28/03/2018

Before

MR JUSTICE STEWART

Between

Kimathi & orsClaimants

The Foreign and Commonwealth OfficeDefendant

Simon Myerson QC, Zachary Douglas QC & Edward Craven (instructed by Tandem Law (Lead Solicitors)) for Claimants

Guy Mansfield QC, Neil Block QC & Simon Murray (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: 21 March 2018

Judgment

Introduction

[1]On 9 January 2018 the Claimants issued an application notice seeking “To vary the Order dated 27 October 2016 in relation to the long stop limitation date from 4 June 1954 to 4 June 1953 on the basis of what the Claimants will say is the correct interpretation of the decision in Arnold v Central Electricity Generating Board

[1988] AC 228

.”

[2]In correspondence the Defendant raised the issue of the Court’s power to vary the Order. The parties mentioned the matter in Court on 22 January 2018. At that hearing the Defendant contended that the Claimants needed permission to amend their Re-Re-Amended Generic Reply. The Claimants did not accept this, but said that they would apply to amend so that the Court could determine whether amendment was necessary. After discussion it was decided that the most efficient way forward would be for the Court to hear procedural arguments as to whether:(1) permission to amend was required, and if so should it be granted;

(2) the Court has power to vary the Order of 27 October 2016;

(3) in any event, the Court should permit the Claimants to argue the point having regard to the Order of 27 October 2016. This is a separate case management issue if no permission to amend is required; if permission to amend is required it may form part of whether or not to grant permission to amend.

[3]Those three issues were clarified in e-mail correspondence between the parties and the Court. During that correspondence the Claimants intimated that they might not proceed with (2) above, but would seek the permission of the Court to appeal the substance of the October 2016 Order to the Court of Appeal. The ground of appeal is said to be that the Order is founded upon an incorrect interpretation or application of the case of Arnold, and is wrong as a matter of law, because the longstop date should be 4 June 1953 rather than 4 June 1954.

[4]Nevertheless, the Court stated that it would determine issues (1) and (3) even if they must fail in any event before this Court, if it is accepted for the purposes of this application that the October 2016 Order is sought to be challenged by an appeal and not by a variation in the High Court. [The Claimants state that they do not accept that this Court lacks power to vary the Order, but say that they wish to avoid further satellite litigation. The Defendant disputes this, saying the court has no such power. The matter has not been argued before me]. The reason why issues (1) and (3) should be determined at this stage is that they are relevant as to whether this Court, or the Court of Appeal, would give permission to appeal.

[5]On 2 February 2018 an amended application notice was issued by the Claimants. In reality this is a fresh application notice rather than an amended one. Indeed, by letter dated 9 February 2018, the Claimants confirmed:

“The Application dated 2 February 2018 replaces the application served on 9 January 2018”

. It seeks the following relief:

“(1) To amend the reply to defence, if required, to plead that the correct longstop limitation date in accordance with Arnold v Central Electricity Generating Board…is 4 June 1953 rather than 4 June 1954. (2) To obtain the permission of the Court to allow the Claimants to argue this point having regard to the Order of 27 October 2016.”

On 28 February 2018 the Claimants issued a third Application Notice seeking “permission to appeal against paragraph 1 of the Order………. dated 27 October 2016 so that the Claimants may argue before the Court of Appeal that Claimants with causes of action against the Defendant that accrued between 4 June 1953 and 4 June 1954 are not subject to an absolute limitation bar….”

[6]A detailed chronology of matters relevant to this application is appended to this judgment.

The Relevant Pleadings to Date and the Order of 27 October 2016

[7]The original Generic Defence, served 31 October 2014, which has not been amended in this regard, pleads:

“88. All of the Claimants’ claims in tort are time-barred on one or more of the following bases: (a) There is an absolute time-bar in respect of all claims, whether for personal injuries or not, arising from events that occurred prior to 4 June 1954…” (b) The Claimants’ personal injury claims, insofar as they are based on events on or after 4 June 1954 are time-barred by operation of ss.11 or 12 of the Limitation Act 1980, as the Claimants’ dates of knowledge (as defined by s.14) are more than 3 years prior to the issue of proceedings on 28 March 2013……..” (a) There is an absolute time-bar in respect of all claims, whether for personal injuries or not, arising from events that occurred prior to 4 June 1954…” (b) The Claimants’ personal injury claims, insofar as they are based on events on or after 4 June 1954 are time-barred by operation of ss.11 or 12 of the Limitation Act 1980, as the Claimants’ dates of knowledge (as defined by s.14) are more than 3 years prior to the issue of proceedings on 28 March 2013……..”

[8]The Amended Generic Reply (dated 18 March 2016) responded to this ground of defence as follows: “39. The Limitation Act 1980 must be interpreted consistently with the United Kingdom’s international obligations (both under the European Convention on Human Rights and other relevant treaties as well as under customary international law) and in a manner that does not offend fundamental rights by virtue of section 3 of the HRA and the presumption of compatibility and the principle of legality in the common law. The Defendant’s interpretation of the Limitation Act as denying the Claimants an effective remedy for torts committed against them prior to 4 June 1954 should be rejected as inconsistent with those principles.” [The original Generic Reply served on 29 January 2015 had been: “Limitation (paragraphs 89-96) 39. As a matter of domestic law, paragraph 88a of the Defence is correct. The Claimants’ case is that the Limitation Act thereby denies the Claimants an effective remedy for torts committed against them prior to 4 June 1954, and is thereby a breach of

Article 13 of the ECHR

. However:a. Schedule 2.9(1) of the Limitation Act provides that “nothing in any provision of this act shall (a) enable any action to be brought…”

b. It is for the Defendant to decide if it wishes to rely on a limitation defence and, if so, to plead it as a plea in bar.

c. By so doing the Defendant requires the Claimants to rely on the Limitation Act.

d. The Defendant therefore creates the breach of the ECHR and consequent incompatibility of the Limitation Act with the ECHR.

e. It is open to the Court to declare such reliance an abuse; should the court not do so, it is in breach of its obligations as a public body and is in breach of

Article 6 of the ECHR

f. If the Court does declare it an abuse, the Claimants would not then need to rely on the provisions of the Limitation Act 1980 and there would be no breach of

Article 13 ECHR

or incompatibility.”] b. It is for the Defendant to decide if it wishes to rely on a limitation defence and, if so, to plead it as a plea in bar. d. The Defendant therefore creates the breach of the ECHR and consequent incompatibility of the Limitation Act with the ECHR. e. It is open to the Court to declare such reliance an abuse; should the court not do so, it is in breach of its obligations as a public body and is in breach of

Article 6 of the ECHR

. f. If the Court does declare it an abuse, the Claimants would not then need to rely on the provisions of the Limitation Act 1980 and there would be no breach of

Article 13 ECHR

or incompatibility.”]

[9]In an order dated 18 March 2016 the Court ordered:

“33. The following preliminary issues are to be dealt with at the start of trial, commencing on 7 November 2016: (i)…… (ii)……… (iii) Whether there is an absolute time-bar on claims that accrued prior to 4 June 1954.”

The Claimants refer to the fact that on 18 March 2016 the Court stated:

“There is House of Lords authority that causes of action arising prior to 4 June 1954 are time-barred. The Claimants seek to distinguish this. It is agreed that this could be dealt with as a short preliminary issue. ”

The Claimants emphasise the sentence “The Claimants seek to distinguish this.” However at this stage, and at no stage until December 2017, was the point subject to this application referred to. Indeed it had not crossed the Claimants’ horizons as a possibility until late 2017. In this regard it is of note that the skeleton argument for the October 2016 preliminary issue, signed by Messrs Myerson QC and Douglas QC, said at para 7:

“Under the 1939 Act, with some limited exceptions, personal injury claims would become time-barred six years after the cause of action arose, and in the case of public authorities, one year after the cause of action arose. This in effect would mean that claims arising before 4 June 1954 could not now be brought.”

[10]The substance of the Order of 27 October 2016 needs to be set out in full:

“AND UPON the Court having ordered the trial of a preliminary issue by paragraph 33 of the Order dated 18 March 16, namely “whether there is an absolute time-bar on claims that accrued prior to 4 June 1954”

AND UPON the Claimants having conceded that the Court is bound by Arnold v Central Electricity Generating Board

[1988] AC 228

and McDonnell v Congregation of Christian BrothersTrustees

[2003] UKHL 63

[2004] 1 AC 1101

, and reserving their position on the preliminary issue for argument in the Supreme Court: IT IS ORDERED THAT: 1. All claims by Claimants whose names appear on the Register in respect of causes of action that accrued prior to 4 June 1954 are absolutely statute barred, pursuant to the operation of the Limitation Act 1939, the Law Reform (Limitation of Actions etc) Act 1954, and the Limitation Acts 1963, 1975 and 1980 (as amended), save insofar as the causes of action arise from torts committed after 4 June 1954. 2. Depending on the Court’s findings of fact, insofar as the causes of action arise from torts committed after 4 June 1954, recovery of damages in respect of the same is not absolutely statute-barred pursuant to the operation of the Limitation Act 1939, the Law Reform (Limitation of Actions etc) Act 1954, and the Limitation Acts 1963, 1975 and 1980 (as amended). 3. For the purposes of any application to appeal this order, time shall not commence to run until judgment in the Test Cases or further Order. 4. The costs of and occasioned by the preliminary issue are reserved until judgment in the Test Cases or further Order.”

IT IS ORDERED THAT:

[11]Therefore on the concession that the High Court was bound by Arnold and McDonnell, with the Claimants reserving their position on the preliminary issue for argument in the Supreme Court, the Court determined that all causes of action accrued prior to 4 June 1954 were absolutely time-barred. The Court had previously, in the summer of 2016, heard the evidence from the Test Claimants. On the face of certain documents and the Test Claimants’ evidence, some of the alleged torts happened prior to 4 June 1954. Given the reservation of the point for the Supreme Court, I decided that I would determine whether the Claimants had proven that allegations occurred post June 1954 and nevertheless make findings as to allegations which pre-dated that date. It is important to state that the Court has yet to decide(a) whether the Claimants can rely upon deliberate concealment under section 32 of the Limitation Act 1980 and

(b) whether it would be equitable to allow the Claimants’ claim to proceed under section 33 Limitation Act 1980. As regards (b) if the Court decides that it is not equitable to allow the claims to proceed, I understand the parties agree that on the authorities the Court cannot then make findings on the alternative basis i.e. had the Court found in favour of the Claimants under section 33.

The Progress of the Case - Overview

[12]In my judgment of 27 April 2017

[2017] EWHC 938 (QB)

at paragraphs 2-5 I gave an outline chronology of the litigation. Since that date the Defendant’s witnesses have been heard and there have been lengthy applications dealing with:(i) Amendments to the individual particulars of claim resulting in judgments on 18 August 2017

[2017] EWHC 2145 (QB)

and 31 October 2017

[2017] EWHC 2703 (QB)

(ii) Further applications resulting in judgments

[2017] EWHC 3054 (QB)

[2017] EWHC 3379 (QB)

[2018] EWHC 22 (QB)

and

[2018] EWHC 216 (QB)

[13]The remainder of the time in mid-late 2017 was devoted to the Defendant adducing many lever arch files of documents and other applications. This term there have been a number of applications, some evidence and extensive preparation in relation to the 25 Individual Test Case submissions served in December 2017/January 2018. The rest of the case is scheduled as follows for 2018:• Easter term: hearings on document disputes, hearing on s32 Limitation Act 1980 and on a discrete issue of law, namely whether fear is a personal injury for the purpose of s33 Limitation Act 1980. The parties will also be serving and exchanging further submissions in relation to the Individual Test Case closings.

• Trinity Term: the commencement of the Individual Test Case Closings. These are estimated to last a number of months. They will involve a total of some thousands of pages of submissions, plus numerous documentary references. Two Test Claimants’ submissions (TC20 and TC34) will be heard in June/July 2018. The Genesis of this Application

[14]There are witness statements from Mr Steven Martin, dated 9 January 2018 (12th) and 2 February 2018 (13th). The Defendant has filed a witness statement (number 9, dated 16 February 2018) from Andrew Robertson. Mr Martin and Mr Robertson are lawyers with conduct of the case for their respective clients.

[15]In August 2017 the Court questioned whether there was any way of getting the Arnold point determined by the Supreme Court as a leapfrog appeal. The parties were asked to consider this possibility, the idea being that, if thought appropriate, and if the Supreme Court agreed to deal with the matter, by the time final submissions were to be heard in the Spring of 2018, the trial might be simplified and time and costs substantially saved. Mr Martin’s witness statement of 9 January 2018 picks up the timeframe from that point at paragraphs 30-37. He says:• There was considerable absence from the Claimants’ legal team during the Summer 2017 recess, therefore enquiries could not commence immediately. After initial consideration by the Claimants’ legal team and due to competing priorities in the litigation, it was concluded that separate counsel should be instructed for this discrete issue.

• New junior counsel was subsequently instructed and, whilst considering the issue, counsel identified the possibility that the longstop in Arnoldapplied to claims against public authorities arising from 4 June 1953 rather than 4 June 1954. [In Mr Martin’s 13th witness statement para 48 he says that the new junior counsel was instructed on 31 October 2017 and over the following weeks the issue concerning the correct longstop was identified].

• Further instructions were sent to counsel in November 2017 to consider the matter and, after receiving additional information from counsel, the Claimants wrote to the Defendant on 7 December 2017, telling the Defendant that further enquiries regarding Arnold had been made and that the Claimants would update the Court about the Claimants’ position the following week.

• The Claimants had intended to raise the matter with the Court during the week commencing 11 December 2017, but that did not prove possible. The issue was therefore discussed with the Defendant outside court on 18 December 2017 and followed up by letter on that date. That letter set out in outline the argument that Arnold barred claims against public authorities only when the claims accrued before June 1953.

• By letter dated 20 December 2017 the Defendant responded, fully reserving its position in relation to whether the issue ought to have been pleaded and/or was being raised in any event far too late in the litigation: “As well as all other issues (not least prejudice to the conduct of our defence to date) arising from your delay, not least the costs which may be incurred by being raised at such a late stage.”

• The Claimants’ proposal to review the decision in Arnold was raised in Court on 20 December 2017, and the Court suggested the Claimants make a formal application. That led to the application of 9 January 2018. I have already briefly set out above what has happened since that date. More details are in the appended chronology.

The New Legal Issue in Outline

[16]It was agreed by the Court and the parties that the Court would not hear submissions on the legal basis for the proposed amendment. However it might be helpful if I set out a summary of the Claimants’ proposed new case on the longstop limitation. I note from Mr Robertson’s statement (paragraph 7(i)) that he says that the Defendant is firmly of the view that, if argued, the new point of law will fail. The Claimants criticised the Defendant for not addressing the merits of the new issue, but, in order not to expend even more time at this critical stage of the trial, I had specifically stated that I did not expect argument as to the strengths/weaknesses of it.

[17]In Arnold the Claimant’s husband died in 1982 from mesothelioma, allegedly from being exposed to asbestos whilst working in the Defendant’s power stations in 1938-1943. The Claimant sued in 1984. The Defendant relied upon section 21 of the Limitation Act 1939 under which actions against public authorities were subject to a one year limitation period. The claim was therefore time barred by 1944.

[18]The issue in Arnold as set out by Lord Bridge at page 265F was:

“Thus the critical question to be determined in this appeal is whether anything in the series of statutes dealing with limitation of actions leading up to the 1980 consolidation, each of which was passed to ameliorate aspects of the law believed to operate unjustly, has had the effect of removing retrospectively the bar to the widow's action which accrued to the Birmingham Corporation pursuant to section 21 of the Act of 1939.”

[19]The Law Reform (Limitation of Actions etc) Acts 1954 came into force on 4 June 1954. It repealed section 21 of the Limitation Act 1939 and amended section 2(1) of that Act. Section 2(1) provided for a six year limitation period in actions not against public authorities. It substituted a three year limitation period in all personal injury cases.

[20]The decision in Arnold was that the accrued right to plead a time bar which the Defendant had acquired under section 21 of the 1939 Act had been preserved by the express words of section 7 of the 1954 Act in respect of actions accruing before 4 June 1954; further, the right to plead a time bar which had so accrued was not affected by section 1 of the Limitation Act 1963, being expressly preserved by section 1(4) of that Act; yet further the Limitation Act 1975 which gave the Court a discretion to override the normal period of limitation in a personal injury action (the precursor of section 33 Limitation Act 1980) did not deprive a Defendant of any defence already accrued. Since the 1980 Act merely consolidated the relevant law, the Claimant’s claim was barred by the time bar which had accrued under section 21 of the 1939 Act sometime in 1944.

[21]The focus of the Claimants’ case in the proposed amendment is section 7(1) of the 1954 Act. This provided:

“The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of this act or at the time when it would have expired if all the provisions of this act had at all material times been in force, whichever is the later.”

[22]In Arnold Lord Bridge explained section 7(1) as follows: “Thus, its effect in relation to actions for damages for personal injuries against public authorities was to apply the new limitation period of three years to causes of action which accrued within 12 months before 4 June 1954, but not to revive any cause of action which accrued more than 12 months before that date and which was already time-barred. Its effect in relation to actions for damages for personal injuries against other defendants was to leave causes of action which accrued between 4 June 1948 and 4 June 1954 subject to the limitation period of six years pursuant to the unamended section 2(1) of the Act of 1939 and to apply the limitation period of three years under the subsection as amended by the proviso only to causes of action accruing after 4 June 1954.” (Page 268E-F)

[23]The Claimants’ point in outline is:(1) This is a claim against the Foreign and Commonwealth Office i.e. a public authority.

(2) Therefore, prior to the 1954 Act, the limitation period was one year pursuant to section 21 of the 1939 Act.

(3) In accordance with Lord Bridge’s above statement, the effect of section 7(1) in relation to actions for damages to personal injuries against public authorities was: (i) to apply the new limitation period of 3 years to causes of action which accrued within the 12 months before 4 June 1954; (ii) not to revive any cause of action which accrued more than 12 months before that date and which was already time barred.

(4) Mrs Arnold’s case came within (ii) above. It was already time barred more than 12 months before 4 June 1954.

(5) Causes of action which accrued within 12 months before 4 June 1954 i.e. under (i) were subject to the new limitation period of 3 years.

(6) At Arnold page 275C Lord Bridge said: “Construing sections 2A to 2D of the Act of 1939 in the light of section 3 of the Act of 1975, I think that full effect is given both to the language and to the purposes of the legislation if it is held retrospectively applicable to all personal injury actions previously governed by the three year limitation period under the Act of 1954, whether as then enacted or as amended by the Act of 1963.”

(7) Therefore if a test claimant’s cause of action accrued within the 12 month period prior to 4 June 1954, this is governed by the three year limitation period under the Act of 1954 and therefore the 1975 Act (and consequentially section 33 of the 1980 Act) are retrospectively applicable to such causes of action.

[24]I make no comment upon the merits of this argument save that, if correct, it preserves a distinction between claims against public authorities and claims not against public authorities in respect of causes of action which accrued in the 12 months prior to 4 June 1954. In a different context in the Arnold case, Lord Bridge said this at page 269H-270A:

“The philosophy which was once thought to justify the distinction between public and private defendants in this regard had fallen wholly into disrepute when the distinction was swept away in 1954, and, so far as I am aware, has never subsequently regained any reputable currency. Hence, if the distinction was reintroduced in relation to the retrospective operation of the Act of 1963, it surely can only have been by some accident of inadvertent draftsmanship. It is for this reason that I should strive to avoid construing the Act as effecting such a distinction unless plainly compelled by its language to do so.”

[25]It is right to record that no one has previously raised this issue as a matter for determination in court or, so far as I am aware, in textbooks or articles. It seems to be novel.

Analysis

[26]By the Order of 27 October 2016 the Claimants formally accepted that this Court (and the Court of Appeal) was bound by Arnold and McDonnell and therefore had no power to decide other than as reflected in paragraph 1 of the Order, namely “All claims by Claimants whose names appear on the Register in respect of causes of action that accrued prior to 4 June 1954 are absolutely statute barred…”

[27]Paragraph 3 of that Order, which provided that for the purposes of any application to appeal it “time shall not commence to run until judgment in the Test Cases or further Order”, was specifically inserted because of the recital that the Claimants were “reserving their position on the preliminary issue for argument in the Supreme Court”.

[28]The first time that the Claimants raised the new argument (i.e. that Arnold, correctly interpreted, is an absolute bar to personal injury claims against public authorities only if the cause of action arose prior to 4 June 1953) was in December 2017. Had that argument been pleaded in the generic reply, this Court would have had the power, and indeed the duty, to deal with it. By issuing the present applications the Claimants must accept that. That explains why they have considered whether this Court had power to vary the Order of 27 October 2016, or alternatively whether the Court of Appeal could allow an appeal against it. This is wholly different from the original point challenging Arnold, whereby the Claimants accepted that both this Court and the Court of Appeal were bound.

[29]The matters to be considered are:(1) Do the Claimants need permission to amend the generic reply?

(2) In any event would this Court permit the Claimants to argue the new point having regard to the Order of 27 October 2016?

(3) Permission to appeal the Order of 27 October 2016 to the Court of Appeal.

[30]As regards issue (3), Mr Martin’s 13th witness statement says:

“41. In accordance with the overriding objective, the Court is required to ensure that cases are dealt with expeditiously. In view of the uncertainty over the status of the Arnold Order and the scope of the Court’s power to vary that order, the Claimants consider that it would be preferable to seek the permission of the Court to appeal the substance of the Arnold Order to the Court of Appeal. The ground for appeal would be that the Arnold Order is founded upon an incorrect interpretation or application of Arnold and thus is wrong as a matter of law because the longstop date should be 4 June 1953 rather than 4 June 1954.”

Is Amendment Required?

[31]In my judgment the answer to this question is definitely yes. I have previously set out the original Generic Reply on the Arnold issue and also the Amended Generic Reply, dated 18 March 2016, which is the pleading at present in force. The proposed amendment retains the present format but adds the following:

“Further and alternatively, it is the Claimants’ case that Arnold v Central Electricity Generating Board is wrong such that there is no absolute time-bar in respect of claims arising from events that occurred prior to 4 June 1954 (as asserted in paragraph 7a and paragraph 88a of the Re-amended Generic Defence). Further and alternatively, if Arnold v Central Electricity Generating Board is correct, then it only operates to bar claims against public authorities such as the Defendant arising from events that occurred prior to 4 June 1953. ”

[32]Therefore the new issue does not come within the present pleadings. In paragraphs 10-28 of his 13th witness statement Mr Martin addresses the Amended Reply application. He asserts the Claimants’ primary position is that there is no need to amend. He makes the following contentions:(i) The preliminary issue ordered on 18 March 2016 was “whether there is an absolute time-bar on claims that accrued prior to 4 June 1954.” [Paragraph 11]

(ii) The point at present under consideration is a question of law which arises squarely within the context of the preliminary issue referred to above. “Once a legal issue has been identified as a preliminary issue in litigation, it cannot be right that the parties are constrained by the pleadings in advancing their legal arguments on how the preliminary issues should be resolved by the Court.” [Paragraph 13]

(iii) The present pleading is broad enough to encompass this legal issue in the words “The Defendant’s interpretation of the Limitation Act as denying the Claimants an effective remedy for torts committed against them prior to 4 June 1954 should be rejected as inconsistent with those principles.” Those “principles” included the “common law” and therefore provided for consideration of authorities including those in Arnold and McDonnell [paragraphs 14-16].

(iv) If there is a need to amend the Generic Reply, contrary to the Claimants’ primary position, then it should be permitted pursuant to CPR 17.1 (paragraphs 23 and 24).

(v) It was always anticipated that the Claimants might appeal the decision in Arnold. “The Arnold order confirms that the Claimants were reserving their position on the preliminary issue for argument in the Supreme Court” and the preliminary issue was “whether there is an absolute time-bar on claims that accrued prior to 4 June 1954.” [Paragraph 26].

(vi) The Arnold Order did not include a requirement to amend any statements of case. If it was envisaged that ultimately that would be necessary it must have been expected after “judgment in the Test Cases or further order” when time to appeal was said to commence. Therefore the Defendant is not prejudiced if an amendment is granted at this stage in the proceedings, rather than after judgment in the Test Cases. As a result of the issue of limitation having been raised by the Court in August 2017, the parties have given further consideration to the issue and “hence the application has ultimately been accelerated and is being made at this stage rather than following judgment of the Test Cases.” [Paragraphs 27 & 28]

33.1 The Claimants submitted that, limitation being a matter of law, it did not have to be pleaded. This I reject because:- (i) It is for a Defendant to raise a limitation defence in its Defence. Otherwise, limitation is not in issue in a case. [See CPR Practice Direction 16 para 13.1] (ii) Once raised, the burden of proving that the claim is not time-barred shift to the Claimant. See Halsbury’s Laws of England (2016) Vol 68 Limitation para 945. (iii) If a Claimant relies on specific points in rebuttal of the pleaded defence, then those points should be pleaded either in an Amended Particulars of Claim or a Reply. This is not specifically mandated in the CPR but arises from and is supported by:-

• The purpose of pleadings is set out in McPhilemy v Times Newspapers

[1999] 3 All ER 775

@739; Credit Suisse AG vArabian Aircraft and Equipment Co

[2013] EWCA Civ 1169

para 17. [These citations are referred to later in this judgment. I refer to them here as general statements of principle].

• The practice in this case and generally of pleading to a limitation defence. The parties have both fully pleaded limitation issues and their joint expectation (and that of the court) has been that limitation points in issue would be clear from the pleadings.

• Statements in textbooks – see McGee on Limitation Periods 7th Edition p393 “……if the defendant does plead the statute, then the claimant will need to rebut this plea.” Charlesworth & Percy on Negligence 13th Edition “Once the defendant raises the issue that a claim is not brought within time the onus is on the claimant to plead and prove a date which establishes that it is.”

33.2 In McPhilemy Lord Woolf also said “after disclosure and the exchange of witness statements pleadings frequently become of only historic interest.” That is not the position with many issues in this case. However done, it is essential that the Defendant knows what is in issue and on what basis in order to prepare its case. The Claimants cannot now raise the issue as of right whatever the prejudice to the Defendant or the consequences on the trial timetable. This limitation point is not a pure issue of law. It requires the parties to have foreknowledge of the issues raised, so they can properly prepare their case factually and legally.

[34]The Claimants’ argument was further developed. I here set out the Claimants’ submissions and my responses:-(i) Paragraph 39 of the Amended Generic Reply directly challenges the correctness of the proposition that Arnold requires the application of a limitation longstop dated 4 June 1954. - That is correct.

(ii) The 1953 new point is entirely consistent with the pleaded case that “The Defendant’s interpretation of the Limitation Act as denying the Claimant an effective remedy for torts committed against them prior to 4 June 1954 should be rejected.” - This point was preceded by the contention that the Limitation Act 1980 must be interpreted consistently with the United Kingdom’s International obligations, and in a manner that does not offend fundamental rights by virtue of section 3 of the Human Rights Act and the presumption of compatibility and principle of legality in the common law. The Claimants say that substance of the new point is consistent with the substance of the challenge to the Defendant’s limitation defence as pleaded in the Reply. However, elsewhere in his skeleton argument, Mr Douglas accepts that the Claimants now seek to argue that even if Arnold is not inconsistent with those stated obligations, its proper interpretation in this case is to time-bar absolutely any claims which arose prior to 4 June 1953. This interpretation of what Arnold decided has never previously been (a) pleaded or (b) made clear to the Defendant or the Court. Undoubtedly, all parties and the Court have proceeded on the basis that if Arnold is not to be overturned by the Supreme Court, then the claims must be absolutely time-barred insofar as they arose before 4 June 1954. There is nothing about this point which falls within the Reply on the basis that “The Defendant’s interpretation of the Limitation Act as denying the Claimants an effective remedy for torts committed against them prior to 4 June 1954 should be rejected as inconsistent with those principles.” Nor do I accept the submission that the substance of the 1953 longstop issue is consistent with the substance of the challenge to the Defendant’s limitation defence pleaded in the existing version of the Reply. Nor the statement by Mr Martin that this is an accelerated application “made at this stage rather than following judgment of the Test Cases.” The only application would have been to the Supreme Court to consider whether Arnold and McDonnell were wrong.

(iii) The Claimants state that the 1953 longstop issue falls squarely within the scope of the preliminary issue, namely “whether there is an absolute time-bar on claims that accrued prior to 4 June 1954”; they say that this directly answers that preliminary issue by contending that claims which accrue prior to 4 June 1954 but after 4 June 1953 are not subject to an absolute time-bar. I do not intend to rehearse the history again, but this was no part of any thinking by the Court or any party at any stage prior to the end of December 2017. The preliminary issue has been answered consistently with everybody’s interpretation of the pleadings, and of the preliminary issue.

[35]The Claimants raise a yet further point. They cite a number of authorities for the proposition that, even if this matter has not previously been pleaded or the subject of the preliminary issue, the Court is “constitutionally bound to apply the law correctly regardless of any concessions on points of law contained in the parties’ pleadings.” In support of this they cite the following authorities:(i) Proactive Sports Management Limited v Rooney

[2010] EWHC 1807 (QB)

at paragraph 571 “Questions of law are ultimately to be determined by the court and not by agreement or concession.”

(ii) Bahamas International Trust Co Limited v Threadgold

[1974] 1 WLR 1514

where at 1525 Lord Diplock said “the construction of a written document is a question of law. It is for the judge to decide for himself what the law is, not to accept it from any or even all of the parties to the suit; having so decided it is his duty to apply it to the facts of the cases. He would be acting contrary to his judicial oath if he were to determine the case by applying what the parties conceived to be the law, if in his own opinion it was erroneous.”

(iii) Reinhard v Ondra LLP

[2015] EWHC 1869 (Ch)

where at paragraph 22 it is said “the construction of the Contract is a matter of law. I am not bound by any concession or pleaded case about that issue.”

(iv) Star Energy UK Onshore Limited v Bocardo S.A.

[2009] EWCA Civ 579

;

[2010] Ch 100

where at paragraph 76 the Court said “That concession of law was withdrawn before us; being a concession of law, we could not be bound by it anyway.”

(v) Jariram v Trinidad and Tobago

[2005] UKPC 21

where at paragraph 9 the Court said “This concession by prosecuting counsel was a concession in law and, accordingly, not binding on the Court of Appeal.”

(vi) Campbell’s Trustees v Campbell’s Trustees [1950] S.C. 48 where at page 58 the Court said “that is not the end of the matter, for that argument proceeded upon a concession in law which we are not bound to accept and which I feel bound to reject.”

[36]The Claimants’ submission is that that is even more the case where the question of law concerns interpretation of a decision of the House of Lords that itself concerns the interpretation of various statutes, rather than the mere interpretation of the private contract. They cite The Corporation of London v Secretary of State for the Environment

[2005] 1 WLR 1286

at paragraph 49 where the Court of Appeal said “a concession as to the true construction of a written instrument does not bind the court; see Bahamas Trust Co Ltd v Threadgold

[1974] 1 WLR 1514

(HL); a fortiori in the case of the true construction of an Act of Parliament.” Reference is also made to Applin v Race Relations Board

[1975] AC 259

at 292 where Lord Simon said “no concession in point of law, especially on a point not directly in question, could constrain your Lordships in the proper interpretation of the Race Relations Act.” Further, Attorney General v Antigua Times Limited

[1976] AC 16

at page 31 where Lord Fraser said “In their Lordships' view, a court which has to decide a question of construction, whether it be of a statute or of a Constitution, cannot be fettered in the exercise of its judgment by any agreement between counsel.”

[37]It seems to me that all these authorities are not on point. Of course the court must apply the law as it is. Of course questions of law are a matter for the court and not for the parties. But the court has not been asked to rule on this point (until now). It is not an issue in the case. The court has not determined that the law is in accord with the Claimants’ new case, or not in accord with the Claimants’ new case, or otherwise. To take the argument to its extreme, if the Supreme Court were hearing in this case the argument that Arnold and McDonnell were wrongly decided and someone (whether judge or counsel) had first spotted the 1953 point right at the end of submissions then (assuming the Supreme Court refused to overturn Arnold and McDonnell) the Claimants’ submission means that the Supreme Court would have the duty at that stage to hear the 1953 point and, if the Claimants were successful, remit it to the High Court. This would mean that substantial factual and legal matters would have to be wholly revisited years down the line. This would be regardless of any further supervening prejudice to the Defendant. The simple answer is the point has not been pleaded or previously raised in any way, whether formally or not. The pleading needs amendment. There is no duty on the court to allow the amendment, save in accordance with the usual principles of permission to amend. Pleadings are important: see the citation of Moore-Bick LJ in the CreditSuisse case referred to below in relation to the purpose of pleadings; also Lord Woolf MR in McPhilemy vTimes Newspapers Limited

[1999] 3 All ER 775

@739A-B where he said that pleadings “are still critical to identify the issues and the extent of the dispute between the parties.” Mr Douglas Q.C. submits that these authorities are not relevant because they deal with issues of fact that have to be pleaded while, he says, the new point is one of law which does not have to be pleaded. I have already ruled against that argument but, even if I am wrong, it cannot be right that this new point can be raised. It would entail disruption of the trial and prejudice the Defendant (see below) while the Court could not intervene so as to control the matter so as to deal with the case in accordance with the overriding objective. In none of the authorities to which I have been referred was this the position.

Should the Amendment be Allowed?

[38]CPR Rule 17.1 provides:

“(2) Where a statement of case has been served, a party may amend it only – (a) with the written consent of all the parties; or (b) with the permission of the Court.”

[39]I set out the principles from Quah Su Ling v Goldman Sachs International

[2015] EWHC 759 (Comm)

at paragraph 38 in full in my judgment in this case at

[2017] EWHC 938 (QB)

paragraph 7. I do not repeat them here. However, I do repeat paragraph 18 of my judgment at

[2017] EWHC 2145 (QB)

paragraph 18 where I said that the Defendant relied upon:

“(a) Ali v Siddique [2015] EWCA Civ. 1258, paragraphs 45-47, and in particular Kitchin LJ's statement that where an amendment is sought at trial a Court “will not only consider the prejudice that would be caused to the party seeking the late amendment if it were refused but will also have to have careful regard to the prejudice that would be caused to the party faced with the amendment if it were allowed.”

This has to take into account the need for corresponding amendment to the other party’s pleadings, further disclosure, fresh evidence or adjournment. (b) Credit Suisse AG v Arabian Aircraft and Equipment Co

[2013] EWCA Civ. 1169

where Moore-Bick LJ said:

“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 to be 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…”

The Defendant has consistently said that its researches and the massive resources which it has used in making the researches and responding to the claim have been based on the TCs’ pleaded cases.”

[40]Later in that judgment I said “the overriding objective is of the utmost importance and that the court has to strike a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general if it is permitted.” (Paragraph 23). Since that judgment, the Court of Appeal, in Nesbit Law Group LLP v AcastaEuropean Insurance Co Ltd

[2018] EWCA Civ 268

said this in relation to late amendments, after referring to the Quah Su Ling case: “41…..In essence, the court must, taking account of the overriding objective, balance the injustice to the party seeking to amend if it is refused permission, against the need for finality in litigation and the injustice to the other parties and other litigants, if the amendment is permitted. There is a heavy burden on the party seeking a late amendment to justify the lateness of the application and to show the strength of the new case and why justice requires him to be able to pursue it….” [See also paragraphs 42 and 44].

[41]The Claimants suggest that the Court should be particularly willing to grant permission to amend the pleading where the amendments will do no more than withdraw a concession on a point of law. In this regard they cite paragraph 51 of Andrew Smith J’s decision in Financial Services Authority v Asset L.I. and others

[2013] EWHC 178 (Ch)

. He there said:

“Essentially, the complaint against the FSA is that it wishes to withdraw an admission or concession: generally the court allows parties to do so provided that they act (and have acted) in good faith and it does not cause prejudice to another party or other unfairness in the judicial process.”

I do not see that quotation as adding anything to the fact that the Court must act in accordance with the overriding objective as informed by the authorities I have cited. The proviso is key to what Andrew Smith J said. In this application I believe it is important to set out some brief comments on the overriding objective.

The Application of the Overriding Objective

[42]I am required by CPR 1.2 to give effect to the overriding objective when exercising any power given to me by the Rules. I remind myself that rule 1.1 states that the overriding objective is that “of enabling the Court to deal with cases justly and at proportionate cost.” I have in mind also the matters in Rule 1.1(2) which set out what is included in dealing with a case justly and at proportionate cost.

Factors Relied Upon by the Claimants

[43]I am, as I have stated previously, prepared to proceed for present purposes on the basis that the new point is properly arguable, though I have not heard the argument.

[44]The Claimants submit that if they cannot argue a new point then thousands of elderly, vulnerable and impecunious Claimants will suffer serious prejudice if they are denied the opportunity to establish an absolute limitation longstop of 4 June 1953 rather than 4 June 1954. This may well be the case but is dependent upon a number of matters:a. They succeed as a matter of law on this point.

b. They succeed in any event on either section 32 of the Limitation Act 1980 or section 33 of that Act.

c. They fail to persuade the Supreme Court in effect to overrule Arnold and McDonnell.

[45]Mr Douglas QC set out in some detail academic and judicial criticism of Arnold which he says highlights the potential harshness and illogicality of that longstop. I do not repeat the details of that part of his submissions. He says that the criticisms or Arnold underscore the harsh consequences of a rigid longstop date of 4 June 1954 and that an earlier longstop date would entail less injustice. If the Supreme Court were to overrule Arnold then that alleged injustice would disappear. Otherwise this particular point does not assist further in applying the overriding objective in the decision I have to make.

The Process if the New Point is to be Allowed

[46]If this Court were minded to allow the amendment and to rule that in accordance with the overriding objective it should be permitted to be argued, subject to the Court of Appeal allowing an appeal against the 27 October 2016 Order, then various consequences would follow in terms of the conduct of the litigation.

[47]First, this Court or the Court of Appeal would have to consider whether to grant permission to appeal the 27 October 2016 Order. I deal with this matter later, but it is important that the effect on the timetable of the trial is here considered. If permission was granted, there would then have to be a hearing before the Court of Appeal. Given the complexity of the point and its potential consequences:a. The Court of Appeal would be almost certain to reserve judgment.

b. There is a risk that there would be an appeal to the Supreme Court.

[48]Disregarding for a moment the risk of an appeal to the Supreme Court, this Court could not put a time estimate upon when the Court of Appeal might hand down judgment. The parties and this Court could ask the Court of Appeal to deal with it as swiftly as possible, but even if that happened, I doubt that there would be a result within less than a few months. Amendment to the Defence would not be lengthy. However, leading counsel for both parties would have to prepare and argue a complex issue. Both parties, and this Court are in a phase of intensive preparation and hearings and will remain so for the rest of the year and beyond, on present estimates.

[49]If the Court of Appeal ruled that this Court could hear the new point, then it would have to be heard as a preliminary point before the closing submissions on the Test Claimants due to commence in June 2018. It is almost inevitable that that hearing itself would delay the commencement of the Test Claimants’ submissions. If this Court ruled against the Claimants then, subject to appeal, that would be the initial extent of the disruption. However, it would not be possible to proceed with the final submissions hearings on behalf of the Test Claimants, until the outcome was known.

[50]If this Court ruled in favour of the Test Claimants on the new point then, again subject to appeal, the consequences of further disruption are dealt with later in this judgment.

[51]If there were potential appeals from either side then the trial would have to continue. In these circumstances, submissions would/may have to be heard on the basis of an absolute time-bar of 4 June 1953; alternatively of an absolute time-bar of 4 June 1954; alternatively no absolute time-bar. The second and third of these possibilities are already envisaged. The addition of the first one would lead to the effects to which I now turn.

Further effects on the proceedings

[52]It is clear from Mr Martin’s statements and from what was said in court that the new point was not noticed until when new junior counsel was instructed on 31 October 2017. He adds (13th witness statement paragraph 52) “…the same concession/mistake had been made in the original Mau Mau litigation.” This is seen in paragraph 38 of Mutua v Foreign &Commonwealth Office

[2012] EWHC 2678 (QB)

[53]From the Defendant’s perspective:(i) It was agreed at the 14 March 2014 CMC (chronology item 5) that the personal injury claims, insofar that they are accrued before 4 June 1954 were statute barred absolutely.

(ii) From 29 January 2015 (chronology item 8), when the Generic Reply was served, the Defendant has been on notice that the Claimants put in issue that absolute time bar as being inconsistent with the ECHR.

(iii) The new point is a completely new point which was not communicated to the Defendant and the court until just before Christmas 2017.

[54]The Claimants make the following points;(i) The Order dated 11 December 2014 required the Defendant to provide standard disclosure limited to documents “produced in the period 1 January 1950 – 31 December 1963.” The Defendant was therefore required to search for documents for the entire period covered by the Emergency, and hence this would have been included with the period 4 June 1953 – 4 June 1954. This is not what the order of December 2014 said. It required the Defendant to provide standard disclosure “limited to the following classes of documents; (a) documents that (1) were produced in the period 1 January 1950 – 31 December 1963 and (2) are presently in the possession of the Foreign and Commonwealth Office; and (b) any other documents on which the Defendant relies.” The whole purpose of this Order was to narrow the Defendant’s disclosure obligation. The effect of (b) is to allow the Defendant, no doubt having regard to the Claimants’ pleaded case, to limit its searches and its disclosure. It is correct that both parties have disclosed/relied upon documents prior to June 1954.

(ii) At the hearing on 26 October 2016 the Court confirmed that, because the Claimants reserved their position on challenging Arnold in the Supreme Court, it would have to make alternative findings as to pre June 1954 and post June 1954 allegations. The Defendant has also pleaded and relied on documents which pre-date June 1954. According to the Claimants’ estimate, the Defendant has also identified substantial colonial legislation prior to June 1954.

(iii) Therefore the Defendant has, for a considerable time, been fully aware that each Test Claimant’s case would have to be researched and presented having regard to the potential challenge to a cut off date of June 1954. To that end the Defendant has disclosed numerous documents pre-dating June 1954 and has called evidence from a number (the Claimants say at least nine) of witnesses who deal with the period prior to that date.

(iv) For those reasons Mr Martin concludes at paragraph 51 of his 12th witness statement “In the circumstances the Defendant cannot reasonably argue prejudice based upon a lack of evidence or failure to consider evidence during the period June 1953 – June 1954.”

[55]Before I turn to the Defendant’s comments on prejudice and the effects on the Court timetable based on Mr Robertson’s evidence, I will set out the Claimants’ response to his evidence. It is summarised in their skeleton argument as follows:

“51. In Mr. Robertson’s ninth witness statement the Defendant states that it has “focused its documentary searches in the various archives on the basis that the June 1954 limitation bar is absolute and the viable allegations in the Test Cases are those said to have occurred after 4 June 1954” (paragraph 112). However, the Defendant should not be permitted to rely on prejudice that results from a deliberate decision to limit the scope of the Defendant’s searches by reference to a 4 June 1954 cut-off in circumstances where: (a) the Defendant was aware that the Claimants disputed the existence of a 4 June 1954 (sic) and intended to appeal against Arnold; and (b) the Court had expressly stated that it would make findings on events both after and before 4 June 1954… 52. Since a challenge to the existence of any limitation longstop has always been anticipated, the Defendant is responsible for any prejudice that arises from a tactical decision it has taken to focus searches on particular periods based on a belief that it has “especially good” prospects of maintaining its limitation defence.”

I rejected a similar point to this one in my 18 August 2017 judgment –

[2017] EWHC 2145 (QB)

para 29, 4th bullet point. This is cited later in this judgment.

[56]Having rejected that argument of the Claimants, there is no other argument which effectively undermines the points made by Mr Robertson, to which I now turn.

[57]Mr Robertson devotes over 20 pages of his witness statement to adverse consequences which he says would follow if the new point was allowed and successfully argued as a matter of law. He refers to the numerous procedural witness statements which have been served by various members of the Defendant’s legal team during these proceedings. He also says that the prejudice to the Defendant should be considered in the context of the prejudice already caused by the amendments to the Generic Particulars of Claim and the Individual Particulars of Claim in 2017. A substantial focus of these amendments was to seek to change allegations from prior to 4 June 1954 to a date after 4 June 1954 and to plead a post-4 June 1954 date to previously undated allegations. He points out that these amendments (amongst many others) took up significant amounts of the Court’s and parties’ time. It can be seen from the chronology (items 16-21) that this occupied Court time between early March 2017 and end October 2017. Mr Robertson adds that the Defendant only finished amending its individual defences (in relation to those amendments which were permitted) in mid January 2018 and the additional work arising from those amendments is ongoing “with the Defendant still playing catch-up”. He says that if the case that the date of the absolute time-bar is a year earlier than that previously agreed (subject to the Supreme Court) then further amendments are likely to be incredibly disruptive.

[58]Finally, in terms of initial comments, Mr Robertson says that the Defendant has had to cope, in late 2017, with three substantial applications all of which it successfully resisted, (these are not referred to in the chronology) and its preparation and presentation of the case in general have been interrupted. This comes on top of the disruption he alleged in paragraphs 55-63 of his sixth witness statement. He then devotes his evidence to considering potential disruption/prejudice under four headings, namely:(i) The approach the Defendant has taken to pleadings, disclosure and documentary case and witness evidence in the Test Cases.

(ii) What the Defendant might have done differently if the absolute time-bar had been pleaded (or ruled) before June 1953 as opposed to 4 June 1954.

(iii) The additional work that the Defendant would need to undertake to address a change in the Claimants’ case to 4 June 1953.

(iv) Impact on the trial timetable. I will summarise points on each of these in turn.

The Defendant’s Approach

[59]Mr Robertson says that the Defendant has conducted itself in the proceedings on the basis that the prospect of maintaining the limitation defence in respect of matters prior to 4 June 1954 are especially good as, in order to avoid that limitation bar, on the present pleadings, the Claimants would need both to overturn the Arnold line of authority and to succeed on section 32 or section 33 of the Limitation Act. The Defendant has applied its resources accordingly. If the possibly effective date of the time-bar moves backwards a year, he says that the Defendant will be deprived of the opportunity to take that into account in tailoring its approach to the process of defending the Test Claimants’ claims. In paragraph 111 he says:

“This is a substantial and to all intents and purposes, irreversible, prejudice.”

[60]As to documentary research, the Defendant has throughout focused its searches in the various archives on the basis that June 1954 was the absolute limitation time-bar, particularly when the Defendant searched The National Archives (“TNA”). This consideration carried through to Defendant’s proofing of its witness statements and cross-examination of the Test Claimants. During the Mutua proceedings many TNA files were reviewed and the Defendant decided not to re-review a substantial number of those files because of the June 1954 date. Many of the files reviewed in Mutua were from 1953-1954 and would have assumed significantly greater importance had the pleaded cut-off date been June 1953 and not June 1954, in relation to the light they might cast on the allegations from that time. Mr Robertson lists some 13 Colonial Office and War Office files at the TNA and two files at the Kenyan National Archives (“KNA”). These have not been re-reviewed and would need to be, if the new point becomes live. Further documentary points are:(i) During searches in 2015 time was saved in the KNA by undertaking a summary, rather than comprehensive, review of pre June 1954 sections of certain files. A targeted review was adopted whereby a junior counsel looked swiftly through the sections of the files to identify potentially important material and then read material from June 1954 onwards in more detail. Junior counsel would probably have changed their approach in relation to a June 1953 limitation date by reducing reviewing time only on pre-June 1953 documents.

(ii) Even this swift review did not take place in respect of all pre-June 1954 material. On the spot judgments were made as to which approach to reviewing files could most sensibly be applied based upon their perceived likely importance to any of the issues in the claim. Pre-June 1954 material was considered less important.

(iii) The Defendant does not have a comprehensive record of which files are affected. The Defendant would have to re-review a number of files previously reviewed to ensure that further material that might assist his case had not been missed.

(iv) Further, a number of files were not reviewed at all either for these proceedings or for the Mutua case. The June 1954 date was a significant consideration in prioritising resources. Mr Robertson says that a recent search of the TNA catalogue for items held there and referencing “Kenya” in the catalogue description for dates between 1950 and 1963 produces 11,841 results, almost all of which are separate files containing numerous documents.

(v) In particular, there are War Office files relevant to army operations during the Emergency which the Defendant thought it relatively less important to investigate in great detail prior to June 1954. These go to generic and Test Claimant issues. Mr Robertson lists a total of 25 such files in the year prior to June 1954. He says that these are a sample collated by junior counsel in the brief period available to file the statement for this application. He says that the list of files to be reviewed would undoubtedly be longer following a full review and that this exercise alone would take many days of work.

(vi) Almost all the 45,000 plus documents disclosed in this litigation have been disclosed by the Defendant which, says Mr Robertson, demonstrates the sheer number of files at the TNA and the KNA that the Defendant has reviewed. The number of documents reviewed is not limited to this and would be much larger. These are the disclosed documents. Mr Robertson therefore says it would be a “huge task to revisit the Defendant’s searches to see if there was relevant material the Defendant wished to rely on which had not already been disclosed.”

[61]Mr Robertson says that if the amendment had been prior to the deadline for the Defendant’s disclosure (December 2015) the Defendant would have reconsidered its priorities and sought the resources further to investigate the time period, in particular army and police operations.

[62]For the above reasons he strongly disagrees with Mr Martin’s suggestion that the Defendant must have conducted searches for and analysis of documents prior to the 1954 time-bar and so would not be prejudiced by the amendments.

[63]With regards to the Defendant pleading the original defences to the individual particulars of claim, searches within the Defendant’s documents were carried out on the database 6 months either side of any pleaded or available date of a key allegation in each case (as a minimum), with a minimum of 50 documents being read where more than that number of results was returned. This was subject to evidence and submission in the amendment applications in July/August 2017. In the judgment

[2017] EWHC 2145 (QB)

paragraph 29 I said:

“• On occasions the Claimants suggest that because the Defendant may have had documents in its possession, then they cannot be prejudiced. I do not accept that. A party is entitled to focus on the pleaded case in its utilisation of documents. Also, in relation to further searches of documents which may be necessary, again these are primarily informed by pleadings. This is particularly the case where there are thousands of documents many of which are in the public domain in the TNA or KNA. • Nor do I accept the Claimants' criticism in relation to the Defendant's need to find new documents because dates are now being specified (or changed). The Claimants say that the evidence from the Defendant's procedural witnesses is that documents were searched for by location and name and there is almost no mention of searches by date. They say that the reason appears to be that so few dates were given and the closest the Defendant came in evidence to searching by dates was in evidence not referred to by Mr Robertson. This was recently given by Mr Murphy, who said that when a date was mentioned the Defendant would search six months either side. He also described substantial cross-checking and double and triple searching based on name and location. The Defendant points to earlier references to searching by date… In my judgment the previous lack of dates does give rise to potential for prejudice. If a date is now specified as a result of documents relied upon by the Claimants, it is not illogical or unreasonable for the Defendant to have to carry out further searches based on the new reasons given by the Claimants for the date/position/decision. This is particularly the case where the un-amended pleading/oral evidence gives rise [on the authorities binding on this court] to an absolute bar because it pre-dates the Arnold vCEGB cut-off date.”

[64]Mr Robertson concludes by saying:(i) The research referred to in the extract from the judgment could only be conducted into documents which the Defendant had previously identified as relevant and included in the database. When preparing pleadings a number of files at TNA and KNA had not been reviewed at all and therefore were not part of the documentation available.

(ii) The interrogation of the database which took place prior to pleading the individual defences was to find documentary evidence in relation to specific allegations by reference to the pleadings, including any pleaded dates.

(iii) An altogether different kind of search was required if seeking whether relevant events, if they occurred, might have occurred at a different point in time. If the searches were to aim at challenging post-4 June 1953 dates for the particular events and occurrences, they would be framed with that purpose in mind and targeted specifically at the pool of documents which relate to the pre-June 1953 period.

[65]As regards the Defendant’s approach to cross-examination of the Claimants’ witnesses, Mr Robertson says that that was also influenced by the June 1954 pleaded date. In the sixth bullet point of paragraph 29 of my August 2017 judgment on amendments, I accepted that it was “perfectly proper for D not to firm up dates where a Test Claimant’s case was pleaded either on the basis that the Test Claimant did not know the dates and/or the relevant dates pre-dated the Arnold cut-off.” I said that if the Claimants’ case by amendment was that the date could be firmed up and, in particular if they post-dated the Arnold cut-off date, the Defendant was perfectly entitled to allege prejudice by the amendment, adding “Whether I accept there is a real (risk of) prejudice depends on individual circumstances.” This point led to some amendments being refused, for example in relation to Test Claimants 20, 22 and 24.

[66]Further cross-examination of the Test Claimants is not appropriate or possible. The Defendant says that its approach to cross-examination was influenced by the June 1954 time-bar. It is now impossible to know the extent of which further additional information would have been in evidence, but Mr Robertson says:

“It seems probable that further relevant matters would have emerged in relation to that specific issue.”

What the Defendant Might Have Done Differently

[67]Mr Robertson acknowledges that it is difficult to say precisely what the Defendant would have done differently had June 1953 been pleaded much earlier. However, he says that matters which would have influenced the Defendant’s approach would have been:a. Searches for documentary evidence.

b. Searches within the disclosed documentation and its other work in preparing the individual defences (originally already amended).

c. Searching for and proofing of witnesses.

d. Cross-examination of Test Claimants and/or their corroborative witnesses.

[68]It is highly likely that, had it been raised in time, this new point would have been dealt with as a preliminary issue, perhaps in October 2016.

[69]In respect of documentary evidence searches, the Defendant’s approach has already been set out. Mr Robertson acknowledges that it is difficult with hindsight to say what the approach would have been had the new point been pleaded timeously. He nevertheless has been informed by counsel that the Defendant might have done targeted documentary searches for the substance of each of the Test Claimants’ allegations post dating 4 June 1953, within a full cohort of pre June 1953 documents, so as to find out whether, for example in the case of the Nairobi “Sweep”, the documents recorded pre-June 1953 instances of matters casting doubt on dates advanced by the Test Claimants. That exercise was never done because the Defendant relied upon the June 1954 pleaded date.

[70]The Defendant says that the way in which it may have approached its documentary case differently, such that it would now be prejudiced by the new point, is exemplified by referring to the Test Claimants who say they were affected by Operation Anvil which started in April 1954. These are (in particular) Test Claimants 17, 19, 20 and 26.

[71]Three other Test Claimant examples are given:(i) TC13 An amendment to TC13’s individual particulars of claim was permitted in 2017 to change the date of his arrest from January 1953 to April 1954 as part of Anvil. As a consequence of that amendment, counsel investigated in greater detail the evidence to support the originally pleaded timeline (which pre-dated both June 1953 and June 1954), by way of a possible counter to the April 1954 amended dates. The recommended searches to deal with this took 5-6 days in the TNA by junior counsel and two junior juniors. Files from 1952-1954 were searched. Mr Robertson says a further KNA visit would have been desirable, but it was not possible prior to the date for filing the re-amended individual defence. Similar work would need to be done for other related cases, including in particular the Anvil Test Claimants 17, 19, 20 and 26. Further, junior counsel who drafted the amendments to TC13’s defence says that the interrogation of the documentary database to test and challenge the amended dates now pleaded by TC13 required probably a week of additional work targeting searches, in that case between late 1952 and April 1954. Mr Robertson says that similar additional work would be required in Test Cases where the change of date to a June 1953 limitation bar raised similar issues (particularly the Anvil Test Claimants).

(ii) TC10 TC10’s Part 18 response pleaded his arrest in the 4th month of 1954, which the Defendant read as being prior to June 1954. The amendment permitted last year pleads a 1955 date and cites some contemporaneous documents. The Defendant has amended its defence, referring to documents, alleging a pre-June 1954 date. The Claimants’ written closing submissions for this Test Claimant deal in some detail to support the amendment for his arrest and detention being in 1955 rather than 1954. If the new point is permitted, the Defendant will have to reconsider its approach to this Test Claimant and how it then re-addresses the 1954 date which would not then be subject to the absolute time-bar.

(iii) TC1 The individual defence, paragraph 16a, responds to paragraph 12 of the individual particulars of claim. In that paragraph the Claimant says that she and her neighbours were forced to walk to Muchungucha camp where they were indiscriminately beaten by Home Guards. The defence pleads that it has identified a document referring to a camp at Muchunguchu stating that, on or before 25 June 1953 the partially built and then unoccupied camp at Muchunguchu was then burnt down by Mau Mau fighters. The Defendant says that with a new time-bar of 4 June 1953, it is clear that a search for further documents would have been conducted to find out whether they establish or indicate a possible pre-4 June 1953 date.

[72]As to cross-examination of Test Claimants, Mr Robertson says the precise impact of a change of date to June 1953 cannot reasonably be assessed in hindsight or without a major detailed analytical and retrospective exercise performed in relation to cross-examination of the Test Claimants. He gives an example of how cross-examination might have been affected. TC27 pleads that his date of arrest was 1955. In cross-examination he stated that he was arrested in the incident in which ‘General Kago’ was killed, which was in March 1954, and that he had always said he had been arrested in 1954 or 1955. Had the Defendant known of the June 1953 point at the time of cross-examination, it seems likely that Counsel would have pursued this Claimant’s differing evidence of the dates even more than was in fact done.

[73]As regards TC13, Mr Robertson says that the cross-examination would also probably have proceeded differently. Not only would his pleaded case have changed, the Defendant would have had detailed knowledge of the documents supporting the counter-narrative to the timings in the amended case. In addition to relying on his answers relevant to accuracy of recollection and showing inconsistency, the cross-examiner would probably have needed to explore other points in relation to the pre-June 1954 period and events.

[74]Finally, it is said that TC10’s cross-examination would probably have been different. The focus as to timings was influenced by TC10’s case materials and the contemporaneous documents that pointed to the pre-June 1954 period. Questions were put about events having happened in or around April 1954 and about the school at ‘Kanyambora’ having been burned down by Mau Mau, which one document states happened in February 1954. The Defendant does not know whether it may have been burned down on previous occasions. The Defendant may have cross-examined differently in relation to timings, with other documents in mind, if the June 1953 point had been pleaded.

[75]As to the Defendant’s witness evidence, Mr Robertson says that the exercise of selecting and proofing the Defendant’s own witnesses would have been different. It is probable that additional or different questions would have been put to witnesses, both as a result of the additional documentation research already referred to and so as to explore further potential counter-narratives. He says it is further likely that the outcomes of the research would have suggested other potential witnesses for the Defendant who would then have been the subject of tracing exercises.

Work the Defendant Would Now Have To Do

[76]Reviewing or re-reviewing a large number of files at the TNA is estimated (by junior counsel) to take several days by a number of members of junior counsel’s team just to do the scoping work. Junior juniors to assist in research would need to be instructed. If they lacked experience in this litigation they would have to be brought up to speed. Even if the Court’s timetable were halted, the estimate is 2-3 weeks minimum for scoping. Then, to research at TNA is estimated to take several weeks of solid work for junior junior counsel, and at least 1-2 weeks of work by junior counsel in the case so as to consider the most important material. There would have to be substantial additional time on supervision and input from the wider team and the Government Legal Department. The TNA is open 4 working days a week. This fact and the limited availability of junior junior counsel who have other commitments, lead to an estimate of 2-3 months extra work with the use of two junior juniors. Yet further a research trip to the KNA in Nairobi would be required. Past experience suggests an estimate of 3-4 weeks additional time to be allowed for this work.

[77]After that the Defendant’s team would have to consider the documents produced. There would be substantial work for the GLD to scan and upload documents onto the case management system. Junior junior counsel would then have to undertake a preliminary review to assist leading and junior counsel instructed in the case. Reviewing work could not be completed until research was complete. Therefore an estimate of a further 4 weeks would be the minimum required from the end of research to prepare finally all of the documents for consideration by the rest of the team. This is on the assumption that the volume of documents produced was not too great.

[78]After that work, estimated at 4-6 months, the Defendant’s team would have to assess the effect of the documents upon the Defendant’s case. Consideration would have to be give as to amendments to pleadings and to whether any important witnesses identified in the new documents were alive, contactable and could give useful evidence.

[79]For those reasons Mr Robertson says that a stay of 6 months in the proceedings would be the minimum delay were the Claimants’ application allowed. Further time would then be required for additional witnesses and amendments to pleadings where required. This is extra to the delay pending a judgment in the Court of Appeal allowing the point to be argued, then the arguing of the point before me.

[80]In addition to the review of documents not at present in the Defendant’s possession, it would be necessary further to interrogate documents that the Defendant does have, in order to see if there are alternative narratives for the dates provided by the Test Claimants for the 1953/1954 period. The Defendant would need to review afresh how it responds to the allegations in each individual test case. Provisionally, a further month is estimated to accommodate the searches after which would be the analysis of documents and drafting.

[81]Finally, the present process in which the Defendant is engaged, of trying to identify possible further witnesses arising from the 2017 permitted amendments to individual particulars of claim, would become more complex and protracted, should the Defendant have to consider whether there is further witness evidence on the new point. The Defendant would then have to apply for permission to adduce further witness evidence.

[82]After I had challenged Mr Douglas’ oral submissions on prejudice, which were essentially based on the suggestion that it was not legitimate for the Defendant to claim prejudice based on the tactical decision that had made out the case to investigate and research “light” on pre-June 1954 allegations, Mr Myerson Q.C. made some submissions which had not been the subject of any previous written exposition.

[83]The first point he made was that the Defendant’s primary case in the action in general is that, for section 33 purposes, there cannot be a fair trial and therefore it would not be equitable to allow the action to proceed under s33 Limitation Act 1980. Therefore he questioned the prejudice evidence in the light of that. However:-(i) The Defendant would have to research whether there is more documentation to assist in this primary submission in respect of the June 1953-June 1954 period.

(ii) The Defendant’s case will be argued on the alternative basis – i.e. that there may be evidence which undermines the Claimants (or some of them) proving their case in the 1953-1954 period. Unless the Defendant has the opportunity to do further research it will not know the extent of such prejudice. However, there is evidence as to how this may be the case set out above in relation to TCs 1, 10, 13, 17, 19, 20 and 26.

[84]Mr Myerson’s proposal was that if this Court and the Court of Appeal allowed the new point, the trial could continue and the extent of the prejudice (if any) would emerge by way of example during the final submissions on TC20 and TC34, due to be heard as the first individual submissions in June/July 2018.

[85]I do not accept this because:-(i) Unless the Defendant is given time to investigate properly, then it will not be clear to what extent it is prejudiced.

(ii) TC20 and TC34 have been chosen as the first TC final submissions because of the breadth of issues they deal with. They are not, however, comprehensive. If they were, there would be no need to hear submissions on the other TCs. In addition, it is not reasonable to expect the Defendant to try to compartmentalise its search to TC20 and TC34. Researches in this case need to be able to be done holistically or as the Defendant sees fit, responding when necessary to information trails.

(iii) Further, the 7 TC examples given by the Defendant do not include either TC20 or TC34.

(iv) There is also the potential effect on the generic submissions which are to be heard after the submissions on the individual TCs.

(v) There is no speculation on what the Defendant will have to do in order to try to minimise any prejudice. There is speculation as to what it might/might not discover in further researches. Therefore, at the very least, the trial disruption points are made out.

(vi) There is in any event irremediable prejudice as to (a) what the Defendant may have asked the TCs and their corroborative witnesses about June 53-June 54 period (b) whether the Defendant would have been able to call other witness evidence as to this period.

(vii) Mr Myerson’s suggestion would involve the Defendant in pressurised, time-limited further research. The Defendant would not have the opportunity to take proper time and care on these researches. That is not a fair way forward.

(viii) Yet further, it would not be just to require the Defendant to start further researches until the point had been ruled on by the Court of Appeal and then this court. That would almost invariably severely dislocate the further timetable by itself.

[86]In any event, Mr Myerson’s solution was that if, on hearing the TC20 and TC34 submissions, the Court felt there was prejudice as a result of my allowing this application, that could be resolved by this court taking it into account in exercising its discretion against the Claimants under s33 for the June 1953-June 1954 period. That would be a route which this Court would be very wary to tread. S33 requires a careful assessment of “all the circumstances of the case” and the particular factors in s33(3)(a). Those factors, on the authorities, appear not to permit of a point like this to be weighed in the balance. [I speak from recollection, since the point, being raised only in oral argument, had not been fully prepared by the parties]. As to “all the circumstances of the case”, this is comprehensive, but it would be very unusual to try to justify on the basis disallowing a claim which would otherwise be permitted to proceed, based on an amendment which this court and the Court of Appeal had allowed a few months earlier in full knowledge of the potential consequences.

[87]Mr Myerson secondly said that the Defendant’s “dire prognostications” are not always made out, and cited a recent example where a witness statement had forecast similar problems, but the parties had found a way forward which accommodated some of the Claimants’ application on adducing documents without causing insuperable disruption or delay. Of course I do not know the details of that discussion. I have to proceed on the detailed evidence from Mr Robertson, based on his, the GLD’s and counsel’s knowledge of the case and experience of disruption caused by the IPOC amendments, rather than on a possibility that another way forward might be found which did not substantially disrupt the trial.

[88]In short, I must reject Mr Myerson’s valiant attempts to counter the evidence that the trial would be disrupted and that the Defendant would be prejudiced. In any event, there would be some irremediable prejudice to which I have already referred.

[89]The parties are currently heavily engaged in the present tasks set out earlier in this judgment.

[90]The Defendant says that before undertaking the further work referred to if the amendments were allowed, it would need to know the individual case it has to meet in respect of each of the Test Claimants. Only then could the Defendant undertake the substantial further additional work and it would require a stay of at least six months.

[91]According to Mr Robertson, the Defendant cannot carry on with its present work, and deal with this matter. Therefore the impact on the trial timetable is such that it would require a minimum of 6 months delay (probably longer) after a decision by the Court of Appeal and its work and the trial would be totally disrupted.

Summary on the Overriding Objective informed by the authorities on later amendments

[92]As set out above, the prejudice to the Claimants – if the Court refused the application and if(i) the new point is a good one and

(ii) Arnold is not overruled by the Supreme Court and

(iii) this Court would exercise its s33 discretion or decide the s32 issue in favour of the Claimants – would be potentially very significant. A further factor which must not be overlooked is that the Test Claimants and the cohort of Claimants as a whole are very old. Some of them who gave evidence to me were keen to know when they would be aware of the outcome of litigation. Any further delay will only add significantly to the period of time they have to wait. Nobody knows what their instructions would be on possibly gaining an extra year’s damages if there had to be many months further delay. Without checking, Mr Douglas Q.C. thought that all Test Claimants had pre and post June 1954 claims.

[93]The other side of the coin is that this case has already massively overrun from the original time estimate. So far it has taken nearly two years in trial. The final submissions in relation to the individual Test Claimants will last at least until the end of this year. Thereafter, there will be submissions in respect of the generic issues and then a judgment. That will take many months of writing.

[94]In addition I refer to my judgment of 27 April 2017

[2017] EWHC 938 (QB)

. That was the first amendment judgment. I said this:

“In order to accommodate the exigencies of a trial such as this and the difficulties for the parties, the Court has accepted a number of departures from the normal trial timetable. Test Claimants’ evidence was heard before the Claimants’ opening…the number of weeks’ medical evidence was interposed and substantial applications have been heard whilst the trial has been up and running. There is a limit to the strains which can be imposed upon the trial process.”

[95]The overriding objective undoubtedly points, in my judgment, to refusing to allow any new matter which would have other than an insubstantial effect on the overall trial timetable. Referring again to paragraph 18 of the April 2017 judgment, I repeat:

“While this is a very important and very substantial case, the overriding objective nevertheless requires in dealing with the case justly and at proportionate cost, that there be as much proper regard as possible to timetables and the need to complete the case.”

See also my detailed comments in paragraphs 26-28 and 31 of my 18 August 2017 judgment and paragraph 14 of my 31 October 2017 judgment

[2017] EWHC 2703 (QB)

. Also cf. the comments of Thirlwall J (as she then was) in Holloway v Transform Medical Group (CS) Ltd

[2014] EWHC 1641 (QB)

at paras 17-30. Even with this disruption, the extent of any remaining prejudice arising from documentary research is unknown.

[96]In addition, I believe that there is some irremediable prejudice to the Defendant in that they cannot re-cross-examine the Test Claimants or any of the Test Claimants’ witnesses. Nor should the Defendant be required at this stage of proceedings to have to deal with a wholly new point on limitation which will involve them in not insubstantial further research work and costs. There will also probably be some irremediable prejudice in that the Defendant would have to try, belatedly, to reconstruct its approach to the time bar – see Robertson 9th statement para 111.

[97]I should mention a point which the Claimants made, namely that the determination of the new 1953 longstop issue in the Claimants’ favour may obviate the need for the Claimants to appeal to the Supreme Court concerning the correctness of Arnold. This, they say, is that if the Claimants’ position on the 1953 time-bar is accepted, they may reasonably take the view that the time and costs of a review of the correctness of Arnold is disproportionate for the benefit that would then result. Thus the determination of this issue is likely to facilitate the timely and efficient conclusion of the litigation. My response to this is that whilst I cannot rule out the possibility of this, it is no more than that. It is of little weight when put into the balance of the delay and disruption to the trial process to which I have referred above.

[98]I would therefore refuse the application to amend on the basis that it would be wholly contrary to the overriding objective and the principles governing late amendments to allow this matter now to be put in issue. In any event, in my case management powers, I refuse to allow the point now to be taken.

The Application for Permission to Appeal Pursuant to the 28 February 2018 Application Notice

[99]Given my refusal to allow amendment to the pleading and my case management decision that this point cannot be raised at this stage as that would be contrary to the overriding objective, there would be no point in any event in my granting permission to appeal the Order of October 2016. I will however make some comments on the application.

[100]I have already summarised the legal arguments which found the basis for a 4 June 1953 absolute time-bar. The Claimants say there is a real prospect of success. Without making that finding, I am prepared to work on the basis, for the purpose of the application, that had the point been timeously pleaded it would have been properly arguable. However, in order to grant permission to appeal there has to be a real prospect of success in appealing the Order of 27 October 2016. Rule 52.6(1) says that permission to appeal may given only where “(a) the court considers that the appeal would have a real prospect of success.” Appeals are against orders, not judgments; further the appeal court will allow an appeal only where the lower court decision was(a) wrong or

(b) unjust because of serious procedural or other irregularity in the proceedings (CPR 52.21(3)).

[101]In the alternative, the Claimants say that there is a compelling other reason for the grant of permission to appeal, relying upon CPR 52.6(1)(b). This is because the issue potentially has a significant impact on the scope and value of the claims of thousands of vulnerable and impecunious individuals, many of whom claim grave human rights violations. Secondly, they say that the scope of the absolute limitation bar is a matter of general public importance, reflected by the fact that the House of Lords has previously granted leave to appeal (i.e. in Arnold and McDonnell). Further, in a number of cases the Supreme Court has found that issues concerning the existence and scope of limitation periods constitute points of law of general public importance.

[102]If, irrespective of the question of appeal, I refuse permission to amend, as I do, then the point is not in issue in the case. The Order of 27 October 2016 cannot therefore be appealed. If the Claimants seek to appeal my refusal of permission to amend and this decision generally, then it would be a matter for the Court of Appeal(i) whether to give such permission

(ii) whether to give permission to appeal the Order of 27 October 2016.

[103]Technically, I do not consider that this Court would be deprived of jurisdiction to grant permission to appeal out of time. In this regard see Aujla v Sanghera

[2004] EWCA Civ. 121

. Although the rules were slightly differently worded then, nevertheless I rely upon paragraph 17 of Arden LJ’s judgment which states: “17…my conclusion is that it is open to the lower court to grant an extension of time even if the application is made to it after the expiry of 14 days. However, some words of caution are necessary. First, the court should bear in mind the policy behind the limitation of the period for appealing in 52.4(2)(b) to 14 days and 14 days only. This matter was considered by this court in Sayers v Clark

[2002] 1 WLR 3095

, and it is clear that a short time has been set deliberately. The lower court should therefore bear in mind that it is not appropriate, except for good reason, to extend the time beyond the 14 days, although of course there will be cases, such as those referred to in the commentary in the White Book to CPR 52.4(1), where an extension is clearly appropriate.” [Of course the time for appealing is now 21 days] The Claimants say that paragraph 3 of the Order of 27 October 2016 means that the application is not out of time. I did not hear full argument on this but my opinion is that the Order should not be so interpreted. See Lord Sumption paragraph 16 in Sans Souci v VRL

[2012] UKPC 6

[104]It is impossible to separate an extension of time application from the other circumstances of the case which I have set out in this judgment. For all those other reasons I would refuse an extension of time.

[105]Returning to the question of the threshold for permission, it is certainly difficult for this Court to say, not having heard full argument, that there is a real possibility of success in showing that the Order made on 27 October 2016 was “wrong”. Allied to this is whether, in relation to an Order which the parties agreed, there can be an appeal to the Court of Appeal, particularly where there has been no change in factual circumstances. In Roult v North West Strategic Health Authority

[2010] 1 WLR 487

the Claimant’s claims in respect of certain Heads of Loss were compromised on the basis that the accommodation claim was nil, because the evidence was that the Claimants would be better housed in a group home rather than receiving private accommodation costs. This Order was approved by the Court. The Claimant moved into the group accommodation but it was not successful and he sought to resurrect his accommodation claim in a subsequent schedule for loss of damage. The application was made under CPR rule 3.1(7) to vary the Order. The judge refused the application and the Court of Appeal upheld that finding. At paragraphs 19-21 Hughes LJ considered whether there might be an appeal in the circumstances and left the matter open. It seems to me, based on this case, that it would be wrong for me to grant permission to appeal, even if there were not all the other hurdles at which the Claimants have failed. cf. Mandrake Holdings Limited v Countrywide Assured Group plc

[2005] EWHC 311

(Ch) at paragraph 17.

[106]For all the same reasons I refuse to grant permission on the basis of CPR 52.6(1)(b) namely that there is “some other compelling reason for the appeal to be heard.”

[107]For all those reasons I refuse permission to appeal.

[108]Therefore the Claimants’ application fails. Appendix – Chronology

Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 686 (QB)

Introduction

The Relevant Pleadings to Date and the Order of 27 October 2016

IT IS ORDERED THAT:

The Progress of the Case - Overview

The New Legal Issue in Outline

Analysis

Is Amendment Required?

Should the Amendment be Allowed?

The Application of the Overriding Objective

Factors Relied Upon by the Claimants

The Process if the New Point is to be Allowed

Further effects on the proceedings

The Defendant’s Approach

What the Defendant Might Have Done Differently

Work the Defendant Would Now Have To Do

Summary on the Overriding Objective informed by the authorities on later amendments

The Application for Permission to Appeal Pursuant to the 28 February 2018 Application Notice

Cited in 2 later judgments