Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 853 (QB)

“5. A substantial issue remains on the documents. This is that the Defendant objects to the Claimants relying, in the Test Case submissions, on documents which it alleges contradict the pleaded case in the Individual Particulars of Claim. Some, but not all, of these documents are said to be in conflict with judgment(s) of the Court in 2017, refusing applications by the Claimants to amend the IPOCs (Individual Particulars of Claim.”

“3.9 – (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the Court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders…”

“…a judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages r.3.9(1). If the breach is neither serious nor significant, the Court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application including r.3.9 (1)(a)(b). The Court also gave guidance as to the importance of penalising parties who unreasonably oppose applications for relief from sanctions.” (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders…”

“Moreover, the parties agreed that the Claimants could respond to the Defendant’s submissions by adducing documents in response. The position now taken should logically exclude any such agreement, because if the document is not adduced in the list for a particular TC and used by them, it is regarded as not adduced at all.”

“22……..the Claimants shall not be permitted to rely upon further documents without the permission of the Court save in response to documents adduced by the Defendants.”

“Cs may accordingly adduce documents in response to those relied on in D’s submissions in each TC. Such documents must necessarily be adduced both (a) after D has delivered its submissions, and (b) properly in response, rather than for any other purpose.”

“Mr Myerson:…We have agreed that the documents upon which the Claimants rely in respect of individual Test Cases will be provided at an agreed date in June. … ….That’s why we said we would supply all the documents for the Test Claimants by June, so that the Defendant would be able to investigate the documents for themselves from June.” • Hearing 17 May 2017, Mr Mansfield QC Speaking Note: “3…. …... ….the Defendant has to know on what documents the Claimants rely. It is not sufficient to say there are 85,000 pages of documents in Volume 32 of the Trial Bundle and we rely on all of them. Not least the Claimants have adduced no witnesses to speak to the generic issues. They seek to prove their cases on generic issues by reliance on documents. The same principles apply in the individual test cases.”

“It must have been clear to the Defendant that we did not share their interpretation of the Order, given that the special damages submissions are based squarely on documents the Defendant adduced, on which it is now said we cannot rely.”

“Cs do not accuse D of misleading them, or of deliberate silence. They proceed on the basis that the parties simply did not test their assumptions with each other, and that things said which might otherwise have led to the position becoming clear, went unrecognised.”

“17. I am perfectly satisfied that applying the criteria in Denton it is entirely appropriate that the court should exercise its discretion in granting this relief to the Appellant.” 20.1. As regards Lakatamia, Mr Myerson says that, even though the sanction was brought into effect, it is relevant that Cs’ list is not illusory. 20.2. In Lakatamia, the relevant order was “unless standard disclosure is provided on or by 17 January 2014 the Defendant’s defence and counterclaim shall be struck out.”

“25. The first stage is to identify and assess the seriousness or significance of the “failure to comply with any…court order”……. 26.…the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant. It was submitted on behalf of the Law Society and Bar Council that the test of triviality should be replaced by the test of immateriality and that an immaterial breach should be defined as one which “neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation”

“(1) Cs have not explained why this document was not on the list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. The submission that "This document is already adduced" is not understood as the effect of the failure to list the document in accordance with the requirements of the March and June Orders is that it has not been adduced for reliance by TC20 in her Closing Submissions. (3) Cs have not explained why they did not alert D to this document in relation to (TC20) when they became aware that they wished to rely upon it.”

"Opening para 634. Beginning in March 1953, villagisation had been introduced as an ad hoc measure in various locations throughout the from the submission as to how this document assists in showing that TC20’s evidence is “worthy of belief”. Therefore it is not clear that this document is in conflict with the present pleading; however, it is also not clear that it is relevant to support TC20’s case in any substantial way. Therefore the relevance and importance of this document has not been demonstrated and relief from sanctions is not granted in respect of it. (4) No extra work, or cost, or potential disruption to the trial timetable is justified. Kikuyu reserves, although it was not until the War Council’s decision to mandate forced villagisation in June 1954 that it became a fullscale policy . Footnote 701 KNA, AB 2/53/1, “Memorandum on the aggregation of the population into villages in rural areas”, 12th April 1954; and PRO, CO 822/481/1, Press Office, Handout No.28, 19th March 1953. (CYF0000038150) [32,15277] It is no coincidence that the decision was made by the War Council and no doubt that the issue of where people lived was determined by the security forces view of what was necessary for security." (6) Contrary to Cs' suggestion that the fact of D having agreed document 32- 22103a is relevant to the relief from sanctions application, it is not. That document was listed on the TC20 June List and so Cs' reliance on the same was not in breach of the March and June Orders. D's objection to documents in support of Cs' submissions that contradict TC20's pleaded case was limited, for the purposes of this application, to those documents for which Cs require relief from sanctions. However, to the extent that the Cs assert that 3222103a is equivalent to the document in issue, it suggests that the prejudice to the Cs by the application of the sanction is minimal. (7) Cs' submissions state that "this document accords with the pleaded case that TC20 was in a village in 1954"

"The information comes from February 1955". (5) The document has not been adduced by the Claimant in any other circumstances in these proceedings. (6) The deployment of the document is novel in TC20' case. TC20 relies on the document to assert D's knowledge of distress and the date of the same. (7) The document is prima facie the subject of a sanction by reason of the Cs' failure to comply with the March and June Orders. The position is compounded by the fact that the document is deployed in support of a submission as to date that contradicts TC20's pleaded case. The suggestion that D is seeking to limit the use of the document is rejected: rather, D is simply submitting that in such circumstances, relief from the sanction in the March and June Orders should not be granted. 4 8 (33) 32-21190 32- 21195 WAR/C/Min.37 War Council Thirtyseventh Meeting [Hanslope; TNA FCO 141/5549] (CYF-0000009976) {C} On Schedule B of documents not adduced. This document goes to TC20's evidence about weapons carried by the police. It does not change any date. It supports her evidence. It has not previously been adduced directly, although it is a War Council Minute, so hardly unknown. The document is placed in context within TC20's submissions (see §§32, 35), so D must confront the point in any event. (1) Cs have not explained why this document was not on list in June 2017. The fact that Cs describe the document as "hardly unknown" in their submissions is such that Cs' own omission to include the document on the June 2017 list and to explain that omission are striking. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not (1) This document is minute 467 of the War Council’s Meeting on 10 August 1954. The War Council had before them a note from the Secretary on the replies received from the State of Emergency Committee on the number of precision weapons held by, and demanded for, nonregular forces, and the system for authorising demands. (2) The Claimants say that the documents have to be placed in context within TC20’s submissions and refer to paragraphs 32-35. The context at paragraphs 32-35 (in particular paragraph 34) is in relation to the Home Guard and Tribal Police having rifles after 1954 and during 1956-1957. (3) TC20’s submission (paragraph 32) is “TC 20 also describes Kenyan policemen carrying rifles” and explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an unpleaded allegation as to date (1954), which amendment was expressly refused by the Court in the Liability Amendments Judgment. In the context of TC20's submissions, it is notable that reliance on this document at [33] falls in the section entitled "

“That district was next door to where TC20 was situated in Nyeri.”

"Opening para 685. Greet Kershaw, nee Sluiter, compiled the most comprehensive account of life in a loyalist village, Kabare to the south of Mount Kenya, in 1956. In Kabare, the custom of men living in separate huts from women and children conflicted with the policy of each that even in mid-1955 the military was able to give assistance. On any view this was long after TC20’s arrest. (b) The document probably, but not necessarily, supports the submission. However, it leads to potential further investigation by the Defendant. (6) Point 4 in relation to document 1 is repeated. family being given only one hut. Virtually all of the men of the village had therefore moved, en masse, to the Home Guard post. Communal labour was required of all those in the village, and involved the use of compulsion by the Provincial Administration’s local officers, on occasion without rest, food or water until the work was done Footnote 775 TNA WO 32/21902 C426031 Telegram to the Secretary of State 24th August 1955; AA 45/1A Vol.I SEC/DC/AA.10 District Commissioner’s Office Directive 13th May 1955; AA 45/3A Vol. I PEC.51/267 Plan to War Council Secretariat from Provincial Joint Operations 1st July 1955 (CYF- 0000000532 [32,37557] / CYF- 0000004968 [32,33973] / CYF- 0000005978 [32,35853]). Communal labour was therefore understood to be punitive, but for what offence was unclear, as loyalists had to work as part of the communal labour gangs. Restrictive curfews were imposed on all Kabare’s residents without distinction between loyalists and those that supported the insurgents. The regulations that required livestock be housed overnight also applied to all Kabare’s residents. Those who confessed were forced to work without food and water for a week Footnote AA/45/55/2/6. (CYF-0000006487) [32,40296]." (6) The document concerns a different district. D's submissions as to the document at Row 5 above are repeated, as applicable. Insofar as Cs’ submissions repeat the assertion that “TC20 was situated in Nyeri”, that is a very late change of TC20’s case, contrary to her evidence and current pleadings. (7) This is a 9 page document that will be disproportionate to place in context. 8 9 (38) 32-31072 32- 31072 Letter from Bishop of Mombasa to Chief Native Commissioner [Hanslope] (CYF0000004789/SAV006799) {C} Duplicate Reference 3231074 Ken Aspinall Bundle tab 15 This is already adduced. The document concerns an incident at Limuru. The fact that it comes from the Bishop of Mobassa does not mean it happened in Mombassa. It supports TC20's submission about behaviour by the security forces. It is the behaviour, not the date, that is critical. In any event, the document itself says, "we had hoped this sort of thing had ended". (1) Cs have not explained why this document was not on list in June 2017. The submission that "[t]his is already adduced" is not understood as the effect of the failure to list the document in accordance with the requirements of the March and June Orders is that it has not been adduced for reliance by TC20 in her Closing Submissions. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court (1) It is said that this document “supports TC20’s submission about behaviour by the security forces.” (2) The document refers to a sweep said to have been carried out on 26 February 1955 on a theological college at Limuru. It is said that the DO had ordered that the college should not be included in the sweep but two Africans and a European corporal began a sweep on the students’ quarters at the theological college and ordered African women members of the staff and certain students out onto the road. Two non-Kikuyu were said to have been struck across the face and one of them further knocked about with the butt of a rifle in the presence and under the direction of the European corporal. (3) There are should permit reliance. D notes that Ken Aspinall was crossexamined on 14 June 2017, so in advance of the date for submission of the TC20 list by the June Order. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. Cs’ submissions do references to other matters but those are wholly non-specific. (4) The document is of little if any relevance to what was happening in TC20’s area many miles away. Therefore the very limited (if any) relevance to the documents TC20’s submissions does not justify relief from sanctions. (5) Point (4) in relation to document 1 is repeated. not say that they are not intending to rely on the document as to date: indeed, Cs’ submissions are only that the date is not “critical” and in any event, the document supports a submission as to date. (5) The document is irrelevant by reason of location. The event alleged in the letter took place at Limuru, a location that has no relevance to TC20’s pleaded case. The sender and recipient of the letter dated 1 March 1955 were both in Nairobi, which has no relevance to TC20’s pleaded case. (6) The document is irrelevant or of minimal weight as to its substance, if true as to its contents. The incidents described in the document only concern students at the Theological College in Limuru and their wives. TC20 is not said to fall within either of those categories. The document is accordingly not supportive of TC20’s allegations of her experiences. 9 11 (43.4) 32-30987 32- 30987 Letter from Secretary for African Affairs to the Deputy Governor and Minister for African Affairs [Hanslope] (CYF0000006264) {C} TC 16 This document deals with the burning of huts. It supports TC20's evidence that this is what happened to her. The date is not the critical issue: TC20's case is that her hut is burned, whether she can recover for it or not. The evidence supports her. This document was included as adduced in CIV 3 and 4. This is now said to be an error, but it certainly went to Cs' understanding of the position regarding adduced documents. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an (1) The relevance of this appears to be that huts were burned and therefore TC20’s case that her hut was burned is supported. (2) This goes to credibility only. (3) Other documents show hut burning at different dates, though this document may suggest that it happened contrary to instructions. (4) The relevance and probative value of this document is extremely limited, particularly given the date of the document and the fact that, absent the court finding for the Claimants on s32 and the court ruling against TC20 on the case put forward on the evidence, but in her favour on the case pleaded, the Claimants say they cannot recover for the hut damage. (5) Point (4) in document 1 is unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. Cs’ submissions do not say that they are not intending to rely on the document as to date: indeed, Cs’ submissions are only that the date is not “critical”. (5) Deployment in TC20's case is novel. Contrary to the Claimant's assertion, the document is not on the updated document list for TC16 nor referred to in TC16's Closing Submissions. (6) To place this document in context will likely require multiple other documents repeated. to be presented to the Court: this might be disproportionate in the context of the litigation. (7) The Cs’ reference to an alleged error by D in respect of inclusion of the document in CIV 3 and 4 is not understood. (8) Cs’ submissions that “TC20's case is that her hut is burned, whether she can recover for it or not” indicate that TC20 does not anticipate relief in respect of the allegation of the burning of her hut. In that context, it is not apparent to the D why it should incur considerable costs and time responding to a point that does not sound in relief. 10 11 (43.5) 32-50431 32- 50431 Letter to District Commissioner, Fort Hall, from John Waiguru s/o Kamotho, re: Claim that hut and property were destroyed for the purpose of new villages [KNA DCMUR-3-9-10] (CYF- 0000031268) {C} D: Agree, subject to possible further documents in response This document is adduced by way of reply to D's submissions. D now seeks to limit its use. It deals with the burning of huts. It supports TC20's evidence that this is what happened to her. The date is not the critical issue: TC20's case is that her hut is burned, whether she can recover for it or not. The evidence supports her. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. For avoidance of doubt, insofar as Cs submit that “[t]his document (1) See the comments in relation to document 9 above. (2) However there are additional points here, namely: (a) Although the Claimant says that the date is “not the critical issue”, this document is 29 September 1956, therefore nearly 3 years after TC20 says her hut was burned, though it is not clear from the documents when the author says his hut was burned. (b) The compensation application of this document is in relation to location 8 Fort Hall. That is not directly relevant to TC20’s case. Therefore the relevance of this document is even less than that of document 9. is adduced by way of reply to D’s submissions”, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (4) This document is apparently relied upon in support of an unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. Cs’ submissions do not say that they are not intending to rely on the document as to date: indeed, Cs’ submissions are only that the date is not “critical”. (5) The compensation application concerns Location 8 Fort Hall, a place irrelevant to this test case (as to which see row 5 above). (6) Cs’ submissions that “TC20's case is that her hut is burned, whether she can recover for it or not” indicate that TC20 does not anticipate relief in respect of the allegation of the burning of her hut. In that context, it is not apparent to the D why it should incur considerable costs and time responding to a point that does not sound in relief. (7) The document is prima facie the subject of a sanction by reason of the Cs' failure to comply with the March and June Orders. The position is compounded by the fact that the document is deployed in support of a submission as to date that contradicts TC20's pleaded case. The suggestion that D is seeking to limit the use of the document is rejected: rather, D is simply submitting that in such circumstances, relief from the sanction in the March and June Orders should not be granted. 11 11 (46) 32-15583 32- 15583 Paper on Village Settlement for District Team (CYF- 0000033834) {C} Keith Ross Bundle 10 This document has already been adduced. The parties agreed that not every document included in a witness bundle had to be put in order to be (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or (1) In paragraph 46 of TC20’s submission it says: “TC20 can identify the Chief, Peter Njuru, who lived in the post near the village [16139] as was common [32-15583].” (2) The document adduced. This is not the time to go behind that agreement. The document suports TC20's evidence that the Chief she can identify lived near the village. It is unclear whether D actually disputes this. If not, then an admission can be made. The fact that this is a different district is a matter for submission. See also below. its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. D notes that Keith Ross was crossexamined on 11 May 2017, so in advance of the date for submission of the TC20 list by the June Order. Further, the submission that "[t]his is already adduced" is not understood as the effect of the failure to list the document in accordance with the requirements of the March and June Orders is that it has not been adduced for reliance by TC20 in relied upon is in relation to Nyeri 22 April 1954 and refers to “villages had tended to be sited so close to KG posts as to mask the field of fire and to render certain posts almost indefensible.” (3) That may have been the case in Nyeri; it may have been common and applicable also in TC20’s district. (4) The Defendant’s position is that it does not know at this distance in time and without documents which specifically support TC20’s case. The Defendant cannot therefore make admissions. (5) In the circumstances the relevance/probative value of this document is extremely limited and there is merit in the Defendant’s submission that this is a document her Closing Submissions. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. That the document dated 22 April 1954 is in support of a date inconsistent with the Claimant’s pleading must be understood in the context of AIPOC §15 and her “operating at high levels of generality in respect of ….other locations….to those pleaded by TC20. Investigation of such documents is costly and time consuming.” (6) Point (4) in relation to document 1 is repeated. Witness Statement [16138] at §12 alleging that the post was constructed upon TC20’s arrival at Thuita Village. TC20’s Closing Submissions at [48] provide: “Accordingly [i.e. in view of the documents referred to at, for example, [46] of TC20’s Closing Submissions], it seems likely that TC20 arrived in Thuita around the end of 1954 or the beginning of 1955.” (5) The deployment of this document in TC20's case is novel, in that it is used to describe the relative locations of villages and posts. The document does not appear to have been put to Keith Ross. (6) This document concerns Nyeri, a different district to that in issue in TC20. This document is therefore of no relevance to the facts of TC20’s case. The Cs’ assertion that “The fact that this is a different district is a matter for submission” is misguided: TC20 cannot seek to change her case as to that point at this late point in the proceedings (as appears to be anticipated by Cs – see above) absent an amendment. The issues of a change of case and need for an amendment are central to the relief from sanctions application and not a matter to be held over to TC20’s Closing Submissions. (7) Cs’ submission that D make an admission, in view of this document, as to the location of the chief in TC20’s claim to the location of her alleged village is plainly untenable in that context. As with the entirety of TC20’s claim, there is no document directly addressing the facts and matters alleged in her pleaded claim: there are only documents operating at high levels of generality in respect of other individuals, other locations or other dates to those pleaded by TC20. Investigation of such documents is costly and timeconsuming. (8) Ruth Bradbury’s latest witness statement addresses the Cs’ erroneous submission that: “This document has already been adduced. The parties agreed that not every document included in a witness bundle had to be put in order to be adduced. This is not the time to go behind that agreement.” 12 11 (47) 32-15578 3215578- 9 Letter from District Commissioner, Nyeri to Office of the District Commissioner, Nyeri: Paper on Village Settlement for District Team [KNA DC/MRU/2/1/4] (CYF-0000020828) {C} † Cs' Opening Folder 4; Opening para 635 FN 704 This is the same document as above. It was adduced in Opening and is found at p2808 of the Consolidated Transcript. At p2809 the point is expressly made that the village is so close to a KG Post that it masks the field of fire. At p2810 siting is mentioned (no detail). The point (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and (1) This is the same document as document 11. It is relied upon in paragraph 47 of TC20’s submission for the following “In order to ensure close control, posts were situated within 500 yards of the villages in both Nyeri specifically [32- 15578-9]…” (2) The points made as to the different area, in relation to is far from novel - it is exactly what was said in opening. importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. TC20’s Closing Submissions at [48] provide: “Accordingly [i.e. in view of the documents referred to at, for document 11 above, apply equally here. (3) As point (5) of the Defendant’s submissions states, it was not used in the opening for this purpose. (4) In the oral opening (page 2808-2809 of the consolidated transcript) Mr Myerson QC said: “He is making some of the points he has made earlier, that villages tend to be sited so close they mask the arc of fire, so you can’t defend them.” That is a reference to 3215578. There is no reference to 3215579 that “no settlement will be at greater distance from the KG post than 500 yards.” In short, it was never specifically stated that “posts were situated within 500 yards of the villages”. (5) However the main point is the same as example, [47] of TC20’s Closing Submissions], it seems likely that TC20 arrived in Thuita around the end of 1954 or the beginning of 1955.” (5) The deployment of this document in TC20's case is novel, in that it is used to describe the relative locations of villages and posts. The Opening provided: “Opening para 635: For the Kikuyu, Embu and Meru, who traditionally lived in small, scattered settlements, villagisation was a considerable disruption to normal life. It forced people into larger villages surrounded by barbed wire and under Home that referred to in relation to document 11 above. [I do not consider there is much merit in the Defendant’s point (8) since that refers to whether the document was correct to say that “once settled in a village, whether voluntary or punitive, the people come to appreciate it.”] (6) Point (4) in relation to document 1 is repeated. Guard “protection”. There was neither consultation, nor preparation: by the end of July 1954, over half those living in South Nyeri, Fort Hall, Embu and Meru were in villages, whereas in Kiambu the figure was only about 2 per cent. The administration was aware that the Kikuyu disliked villagisation and that it was contrary to custom. For example, a memorandum by the District Commissioner Nyeri describes villages as “alien” and “anti-social” to Kikuyu. During a meeting at Government house on 1st March 1954 attended by the Secretary of State and the Governor, it was said that villagisation was contrary to Kikuyus custom. The defendant’s suggestion that for the Kikuyu there was some equivalence between life before and during villagisation is unsustainable. Footnote 704: Minute of meeting at Government House Nairobi 1/3/54 (CYF- 0000018186) [32,14265] 1 KNA DC/MRU/2/1/4, DC Nyeri, “Paper on Village Settlement for District Team”, 22 April 1954, 2. (CYF- 0000020828,2) [32,15579]” (6) This document concerns Nyeri, a different district to that in issue in TC20. This document is therefore of no relevance to the facts of TC20’s case. TC20 cannot seek to change her case as to that point at this late point in the proceedings (as appears to be anticipated by Cs’ assertion in their submissions as to the relevance of Nyeri in respect of, for example, Row 5 – see above) absent an amendment. The issues of a change of case and need for an amendment are central to the relief from sanctions application and not a matter to be held over to TC20’s Closing Submissions. (7) In Mr Myerson QC’s oral opening at p.2808, when referring to this document, he did not assert, as is suggested in [47] of TC20’s Closing Submissions, that there was a general policy or rule whereby “Posts were situated within 500 yards of the village in both Nyeri specifically …” Rather, the passage cited as to villages masking the field of fire renders “certain posts almost indefensible. The reference at p.2810 relied on by Cs as to ‘siting’ was as follows: “Siting of villages, needs of the sublocation”. The submission advanced at [47] of TC20’s Closing Submission is therefore not “exactly what was said in opening”. (8) At p.2809, when noting that the document provided that “[t]here is considerable evidence that once settled in a village, whether voluntary or punitive, the pople [sic] come to appreciate it”, Mr Myerson QC cast doubt on the truth of the contents of the document. If Cs’ own case is that the truth of the contents of a document on which they rely is doubtful, it can be anticipated that the research required by D to respond to that document will be onerous and require reference to other documents to place it in context. 13 11 (47) 32-15904 321590811 Appreciation and Military Plan, and Administrative Plan- 20.06.1954 [VP 1 1] (SAV- 019766) {D} Ds' Response Bundle; Vol. 2, Non-British Security Forces bundle tab ____ This document supports the case about the placement of village KG posts. D adduced it. It makes the point that the position in Nyeri was applied throughout Central Province. The part of the document relied upon is specified. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an (1) This is in the same paragraph of the submissions, namely paragraph 47. It is in relation to posts being sited within 500 yards of the villages also “throughout Central Province”. It covers the period 1 May-31 August 1954. As the Defendant says, it is a plan for the future. It is TC20’s pleaded case that she arrived in Thuita village towards the end of 1953. (2) There is some probative value in this document. (3) Although a plan for the future, the document does reflect the fact that 99 KG posts were already sited in Fort Hall (where Thuita was) and that may assist TC20’s case that her village was close to the KG post. Paragraph 47 of the submissions would need slight amendment to reflect the admission unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. The Cs’ submissions do not suggest otherwise. The document cited is a “Plan” and the measures described in the pages cited by TC20 therein appear to be steps to be taken upon that plan being implemented (- they appear under the heading “Measures to be Taken by the Civil Administration to Obtain Stricter Control of the Reserves” [3215907]). As the document itself concerns the period 1 May 1954 to 31 August 1954 of this document and the refusal of document 12. (4) On that basis and because most other documents have been refused leading to little cumulative effect, this document is permitted. [32-15904] and is prospective in its language, it follows that it does not address the period of TC20’s arrival at Thuita Village. TC20’s Closing Submissions at [48] provide: “Accordingly [i.e. in view of the documents referred to at, for example, [47] of TC20’s Closing Submissions], it seems likely that TC20 arrived in Thuita around the end of 1954 or the beginning of 1955.” (5) The deployment of this document in TC20's case is novel, in that it is used to describe the relative locations of villages and posts. (6) This is a 31 page document, which will be disproportionate to place in context in all the circumstances. It is no answer that “The part of the document relied upon is specified.” As is clear from the analysis at (4) above, to be properly contextualised, further pages of the document must be considered. (8) The document does not support the proposition asserted: it details proposals and recommendations, whereas TC20 deploys it as if those proposals had taken effect. Moreover, on the pages cited, there is no specific reference to posts being situated “within 500 yards of the villages”. 14 12 (50) 32-20470 32- 20472 Fort Hall District: Notes for His Excellency Fort Hall D.E.C. Minute 376 List of priorities for the district [Baring Papers Durham] (CYF-0000011827) {C} † Cs' Opening Folder 6; Opening para 650 FN 728 This document was opened. It supports TC20's account about her interrogation. It is not primarily relevant to date. Priority 5, from which the relevant passage is taken, was cited at p65. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an (1) It is correct, as the Defendant says, that priority 5 on page 3220472 was not referred to in the written opening. However it was referred to, as regards its opening sentence, during the oral opening submissions of the Claimants. The reference is at page 2889 of the consolidated transcript where Mr Myerson said: “priority 5 is: “….the Kikuyu tribe of which of these 20% are strong Mau Mau supporters should not be allowed to return to normal conditions prematurely.” This leads into the part of priority 5 now sought to be relied upon. (2) The date of the document is 20 July 1954 and it is a Fort Hall document. On TC20’s pleaded case it is some 6 months after she was removed to Thuita and unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment: TC20’s Closing Submissions at [48] provide “[a]ccordingly, it seems likely that TC20 arrived in Thuita around the end of 1954 or the beginning of 1955.” That this is TC20’s submission is apparent from the use of the word “ongoing” in TC20’s Closing Submissions at [50]: “This is consistent with ongoing administration policy …” Cs’ submissions do not say that they are not intending to rely on the document as to interrogated. (See paragraph 20 of the IPOC). I can understand the Claimants’ point the document is “not primarily relevant to date.” (3) The document is only used to support the submission in the citation from it in paragraph 50 of the submissions i.e. that there was a reason to interrogate people who were villagised. Restricted to that point, I am not persuaded that there will be, on this document alone, substantial further work for the Defendant. Therefore this document is permitted. date: indeed, Cs’ submissions provide that the document “is not primarily relevant to date”. (5) The deployment of this document in TC20's case is novel, in that it is used to describe the 'administration policy to identify adherence to Mau Mau’ (i.e. ‘Priority 5’ in the document). In contrast, the Opening referred to ‘Priority 1’. The Opening provided: “Opening para 650. Forced communal labour was not paid, nor was it the type of community assistance that one person or family might give to another in their community prior to the emergency. TC 17 Mwangi Matheri made this distinction very clear in his evidence: “It was part of the punishment because I was not being paid. If you didn’t work, the sub – chief would take you back for detention. It was not voluntary ”. Footnote 727 Day 6, p.62, line 23. [33,1928] The point is illustrated by a report from the Fort Hall Emergency Committee to the Governor, which refers to the “”bad areas still being punished”, and the fact that the amount of soil conservation work being done in the district was several times that done in previous years. Footnote 728 Report from the Fort Hall Emergency Committee to the Governor 20/7/54 (CYF-0000011827) [32,20471] The point is well made by a Rehabilitation Progress Report in 1955, which refers to the hardship of communal labour in the villages and, to a “natural tendency of the villagers to resent the better conditions of feeding pay and recreation of detainees in comparison to their own lot of hardship and unpaid communal labour”. It is a measure of the desperate nature of life in the villages that some may have thought it compared unfavourably with detention. Footnote 729 Rehabilitation Progress Report 1955 3/1/56 (CYF- 0000041032) [32,43404] This report also refers to the “inordinate delay in allowing detainees … who have co-operated … to climb the ladder to freedom” [32,43407]” (6) To place this document in context will likely require multiple other documents to be presented to the Court: this might be disproportionate in the context of the litigation in respect of a document relied upon at the highest level of generality. 15 12 (51) 32-40084 32- 40093 War Council 139th Meeting [Hanslope; FCO 141/] (CYF0000010082) {C} On Schedule B of documents not adduced. This is a new document, which shows that screening teams had white leaders. The date of the document is not relevant (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became (1) In paragraph 51 of TC20’s submissions she says “A War Council minute identifies the existence of Europeans on screening teams in because the document itself shows this is a pre-existing position. aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability October 1955 as leaders of the team.” She then cites this document, 32-40093. It is a War Council meeting minute 1449 dealing with the question of extra pay for European leaders of tracker teams, with the Deputy Director of Operations considering that “the European leaders of screening teams were more important at the present time, than leaders of tracker teams.” (2) The Claimants submit that the date of the document is not relevant “because the document itself shows this is a pre-existing position.” As the Defendant points out, TC20’s submission refers specifically to “October 1955”. However, in any event, the minute does not give any indication as to for how long there had been European Amendments Judgment. Cs’ assertion that “[t]he date of the document is not relevant because the document itself shows this is a pre-existing position” is in marked contrast with the TC20 Closing Submissions at [51], which refer to the position “in October 1955” and not the position prior to that date (as is now asserted). Cs’ modification of the position stated in the TC20 Closing Submissions is good evidence of the risk of serious prejudice to the D if this and other challenged documents are admitted, namely that Cs will seek to deploy them in support of leaders of screening teams. This is in the context of TC20’s pleaded case that she arrived at Thuita around the end of 1953, and her submission at paragraph 48 that “it seemed likely that TC20 arrived in Thuita around the end of 1954 or the beginning of 1955.” (3) The Claimants have not shown the alleged importance of this document in relation to TC20’s case, given its date of October 1955. It is, at best, very weak evidence of a pre-existing position as at the end of 1954/beginning of 1955 not at the end of 1953. Therefore relief from sanctions is not justified. (4) Point (4) in relation to document 1 is repeated. submissions not previously advanced. Cs should not be permitted, in this application for relief from sanctions, to amend the substance of the TC20 Closing Submissions, which at [48] provide: “[a]ccordingly, it seems likely that TC20 arrived in Thuita around the end of 1954 or the beginning of 1955.” (5) The deployment of this document in TC20's case is novel. It has not been deployed otherwise in these proceedings. 16 12 (52.2) 32-35001 3235001- 2 Chief Secretary's Complaints Coordinating Committee Meeting [Hanslope] (CYF0000041906) {C} † Cs' Opening Folder 8; Opening para 330 FN 338 This document is a CCC minute, which has already been adduced by virtue of Schedule 3 to the Opening. At pp1839-40 of the consolidated Transcript, both incidents are set out. The issue is not different now. Cs' submission has lawys been that the CCC was the tip of the iceberg and TC20's submission is that, even so, violence is welldocumented. The document records a shooting in Meru. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. The submission that the document has "already been adduced" is not understood as the effect of the failure to list the document in accordance with the requirements of the March and June Orders is that it has not been adduced for (1) The submission at paragraph 52 is “The interrogation was to obtain information about the Mau Mau oath, where, why and with whom she had taken it [16-139]. Violence during screening is well documented: … 52.2 The shooting whilst screening in Meru, and assault while screening at Makadara screening centre in June 1955 [32-35001-2; 32- 36193]…” (2) The use of the document in the Claimants’ written opening was not the one for which it is used now. (3) In oral opening submissions Mr Cox QC went through these documents including these two incidents, however. (4) At least one (and perhaps both) instances are at Meru and are of little if any reliance by TC20 in her Closing Submissions. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. TC20’s Closing Submissions at [48] provide: “Accordingly, it seems likely that TC20 arrived in Thuita around the end of 1954 or the beginning of relevance to TC20’s case. (5) Further, as regards the “alleged shooting of an African under interrogation in Meru district”, the minute records that Sergeant Murray of the Kenya Regiment had been sentenced to nine months imprisonment. Referring to the consolidated transcripts of the Claimants’ opening there is the following exchange recorded in relation to this incident: “Mr Justice Stewart: That was on the face of it one that was negligent wasn’t it? Mr Cox: One that? Mr Justice Stewart: Was negligent; is that right? Is that the one that was …. Mr Cox: Yes Mr Justice Stewart: - so it was like a manslaughter, if anything? Mr Cox: Yes, yes, yes. What is rather odd in 1955.” (5) The deployment of this document in TC20's case is different to that in the Opening. The Opening provided: “Opening para 330. These decisions could be attributable to there genuinely being insufficient evidence Footnote 338 CAB 19/4 Vol I: CSCCC minutes: Chief Secretary's Complaints Coordinating Committee Meeting [Hanslope] (CYF- 0000041895) [32,20203]; Chief Secretary's Complaints Co- Ordinating Committee Meeting: 10/08/1954 [Hanslope] (CYF- 0000008369) [32,21171]; Chief Secretary's Complaints Co- our submission is that the sentence was subject to confirmation by the Commander in Chief and the Governor. ….. Mr Justice Stewart: But subject to that, it comes out that there is nothing to put it on notice that something went awry, is there? Mr Cox: Yes” The exchange was based on to what extent the complaint co-ordinating committee properly investigated. Further a negligent shooting of an African under interrogation has practically no probative value in support of the submission that “violence during screening is well documented.” (6) Point (4) in relation to document 1 is repeated. Ordinating Committee Meeting: 26/07/1954 [Hanslope] (CYF- 0000008370) [32,20610]; Chief Secretary's Complaints Co- Ordinating Committee Meeting [Hanslope] (CYF- 0000008356) [32,25069]; Chief Secretary's Complaints Coordinating Committee Meeting [Hanslope] (CYF- 0000041896) [32,22016]; Chief Secretary's Complaints Coordinating Committee Meeting [Hanslope] (CYF- 0000041943) [32,24347]; Chief Secretary's Complaints Coordinating Committee Meeting [Hanslope] (CYF- 0000041906) [32,35001]; Chief Secretary's Complaints Coordinating Committee Meeting [Hanslope] (CYF- 0000041911) [32,37249]. But a failure to take criminal charges seriously and investigate them quickly and effectively is, itself, capable of producing precisely that outcome. Only three men were convicted for rape and one for indecent assault during the Emergency.” (6) The document is irrelevant as it concerns a different district, namely Meru District. Events in Meru District form no part of TC20’s pleaded case. (7) This document does not support the proposition for which it is relied upon. Cs assert at [52.2] of TC20’s Closing Submissions that the document supports the proposition that there was welldocumented violence including “[t]he shooting whilst screening in Meru”. However, [32-35001] makes reference to an “alleged shooting” of an African “under interrogation. 17 12 (52.2) 32-36192 32- 36193 Chief Secretary's Complaints Coordinating Committee Meeting [Hanslope] (CYF0000041909) {C} † Cs' Opening Folder 8; Opening para 466 FN 513 This document follows through the second reference in the document above. The parties have always recognised that the evidence of what ultimately happened is important (often because D wishes (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in (1) This is the second document referred to in the extract from TC20’s submissions at paragraph 52 as set out in relation to document 16 above. (2) Document 16 is the CCC minutes of 6 June 1955. This document is the CCC minutes of 11 July 1955. It shows to pray it in aid). relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. The submission that the document has "already been adduced" is not understood as the effect of the failure to list the document in accordance with the requirements of the March and June Orders is that it has not been adduced for reliance by TC20 in her Closing Submissions. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished (minute 380) that 5 Kikuyu Guard had been sentenced to imprisonment, having been convicted of assault at Makadara screening centre. The same points apply in relation to this document as in relation to document 16 (but not the additional points which refer to the alleged shooting incident, which is not replicated in this document). to rely upon it. (4) This document is apparently relied upon in support of an unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. TC20’s Closing Submissions at [48] provide: “Accordingly, it seems likely that TC20 arrived in Thuita around the end of 1954 or the beginning of 1955.” (5) The deployment of this document in TC20's case is different to that in the Opening. Cs’ suggestion in respect of the document in Row 16 that the submission that violence was welldocumented is the same as the submission that the CCC minutes record the ‘tip of the iceberg’ is strained: the latter suggests the former not to have been the case. The Opening provided: “Opening para 466. The totality of the evidence suggests that the cases recorded in the CCC minutes are essentially the ‘tip of the iceberg’. However, a significant feature of the minutes is their reflection of the constant stream of complaints that persisted after the directive to the security forces issued by Erskine in the wake of the Griffiths revelations. Nor did the number or frequency of complaints diminish with the passage of time. Reference to a few of the documents illustrate the point (though a substantial number of the minutes are available). Footnote 513 CCC Minute 26/4/54 (CYF-0000041917) [32,15697]; CCC Minute 31/5/54 (CYF-0000008375) [32,17508]; CCC Minute 28/6/54 (CYF-0000008372) [32,19391]; CCC Minute 23/8/54 CYF-0000008368 [32,21636]; CCC Minute 20/9/54 (CYF-0000008363) [32,22559]; CCC Minute 4/10/54 (CYF-0000041942) [32,22969]; CCC Minute 15/11/54 (CYF-0000008356) [32,25069]; CCC Minute 7/3/55 CYF-0000008337 [32,31396]; CCC Minute 6/6/55 (CYF-0000041906) [32,35001]; CCC Minute 11/7/55 (CYF-0000041909) [32,36192]; CCC Minute 5/9/55 (CYF-0000041959) [32,37996]; CCC Minute 9/1/56 (CYF-0000041966) [32,43544]; CCC Minute 13/6/56 (CYF-0000008415) [32,47870]; CCC Minute 18/7/56 (CYF-0000008414) [32,48862]; CCC Minute 5/9/56 (CYF-0000008413) [32,49990]; CCC Minute 18/4/57 (CYF-0000008406) [32,54173]; CCC Minute 19/6/57( CYF-0000040965) [32,13425]; CCC Minute 20/11/57( CYF-0000041077) [32,58256]; CCC Minute 16/7 58 (CYF-0000008393) [32,60299]; CCC Minute 1/1/59 (CYF-0000001513) [32,61762]; CCC Minute 8/7/59 (CYF-0000040891) [32,68098]; CCC Minute 27/7 59 (CYF-0000040894) [32,68636]; CCC Minute 9/9/59 (CYF-0000040899) [32,69064].” (6) The document is irrelevant as it concerns a different district, namely Meru District. Events in Meru District form no part of TC20’s pleaded case. (7) This document does not support the proposition for which it is relied upon. Cs assert at [52.2] of TC20’s Closing Submissions that the document supports the proposition that there was welldocumented violence including “[t]he shooting whilst screening in Meru”. However, [32-35001] makes reference to an “alleged shooting” of an African “under interrogation”: that allegation is distinct from the content of the document accordingly. (8) The relevance to the relief from sanctions application of Cs’ submission that “[t]he parties have always recognised that the evidence of what ultimately happened is important (often because D wishes to pray it in aid)” is not understood. In any event, D’s submission that it cannot argue a positive case in reliance on the documents is wellrehearsed and need not be repeated in this schedule. 18 12 (52.3) 32-29950 3229950- 1 Letter from R.C. Catling, Commissioner of Police, to The Chief Secretary: Alleged Offences by District Officers [Hanslope] (CYF0000007911) {C} † Cs' Opening Folder 7; Opening para 281 FN 266 This document was opened. It supports TC20's case that there was violence in screening. The document relates to Thuita village, at which TC20 was detained for 2 years from 1953 and deal with events in 1954. It therefore relates to the same time period as TC20 pleads. the document itself was not referred to in Opening, but the incident with which it deals was canvassed fully at pp1908-1914 and starts with Mr Cox QC saying that the proposition advanced was that the Amnesty was there to dispose of cases against the administration. The document proposes a (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an (1) This is another document in support of paragraph 52, namely that “Violence during screening is well documented”. It is paragraph 52.3 which states “Inmates of a screening camp being battered to death and tortured [32-29950-1]. (2) This document shows at (d) that a temporary district officer at “Theta” screening camp, Thika” had been charged with murder, the allegation being that on 9 October 1954 one inmate was beaten to death and some 10 or 12 others injured. It added “There is a mass of conflicting evidence in this case, 50% of which affects Simon” (the temporary district officer). The author of the letter, Mr Catling, Commissioner for Police, suggested discussion of the four cases with the discussion between the Chief Secretary and the Police Commissioner, so clearly supports such a proposition. The context is fully laid out in the lengthy discussion. unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. TC20’s Closing Submissions at [48] provide: “Accordingly, it seems likely that TC20 arrived in Thuita around the end of 1954 or the beginning of 1955.” The document is dated 6 February 1955. (5) Cs’ submissions for relief from sanctions do not appear to relate to this document. Contrary to Cs’ submissions, the document makes no mention of ‘Thuita village’. Indeed, the factual relevance of the document appears Attorney General, Assistant Commissioner, CID and himself, before reference is made to the Ministry for African Affairs and Provincial Commissioner for Central Province. (3) The Claimants submit that this incident was in relation to TC20’s village and, according to her pleading, she was there for 3 years from late 1953. It therefore covered the period during which her pleading said she was there. (4) The Claimants accept that the document was not referred to in the Claimants’ written opening (in fact as the Defendant states – point (7) – it was referred to but for a different purpose). (5) The Defendant disputes that the document relates to “Thuita village”. If this minimal. (6) Without prejudice to the point above, an analysis of the transcript of the Court’s exchanges with Mr Cox QC demonstrates that to understand this document in context, a considerable number of additional documents must be reviewed and presented to the Court (see e.g. p.1905 of the Consolidated Transcript of Cs’ Opening). Indeed, Mr Cox QC himself at p.1906 states expressly that the document he was then referring to does not support his contention, but that “we submit the court here must look at the whole picture”, before stating at p.1908 is correct then, as the document says, the factual relevance of the document appears minimal.” This may well lead to further work. (6) Nor was the document itself referred to in the section of the oral submissions to which the Claimants make reference. As the Claimants say “The incident with which it deals was canvassed fully at pp1908-1914 and starts with Mr Cox QC saying that the proposition advanced was that the amnesty was there to dispose of cases against the Administration.” (7) Essentially the document contains allegations of offences by district officers in different districts. One of them is by the temporary District Officer Simon in “Thika District” at “Theta screening camp.” The that the document “demands careful examination in the context of the whole of the evidence.” By way of example, at p.1912, the Judge asked to consider the document in the context of the MacPherson Report at [3227486] at [3227488]. (7) The deployment of this document in TC20's case is different to that in the Opening. The Opening provided: “Opening para 281. A July 1953 Memorandum on “Development and Integration of Intelligence services” states “In an Emergency such as the present one, Special Branch plays a major part in providing the operations Defendant says that this would need following through. (8) The Defendant submits that the document does not support the proposition for which it is relied upon, there being no reference to torture in the document. However the pleading is one of violence during screening. Further, the Defendant says that TC20 does not allege torture in her pleaded case. However in paragraph 21 of her IPOC she alleges that during interrogation at Thuita village she was physically assaulted by two of the policemen. (9) Apart from the location – see (5) above – the reality is that an unproven allegation is of limited probative value. It could also lead to further work/disruption if allowed in for this intelligence required for planning operations. To enable it to carry out its task it has been reinforced by military officers”, and continues under the heading “Operational Intelligence” “Little can be said in public on this subject, but every effort has, and is being, made by the civil and military authorities to ensure that operational intelligence is obtained, assessed and passed on to the user with greatest possible speed. To this end Special Branch has been augmented by military and Kenya Police Reserve Officers and, in addition CID point. (10) Point (4) in relation to document (1) is repeated. teams have been established in all the operational districts to deal with, inter alia, the interrogation of captured terrorists. The closer liaison is maintained between these teams and Special Branch” Footnote 266 CAB MM/3/4 “Extracts from Secretariat Top secret File No INT/10/4AA Vol 1 - “Intelligence Notes for Chief Secretary on Development and Integration of Intelligence Services” 23 July 1953 [Hanslope] (CYF-0000042506) [32,7717]; E16/3/8a Catling , Commissioner of Police to the Chief Secretary “Alleged Offences by District Officers 6 February 1955 [Hanslope] (CYF- 0000007911) [32,29950]; DO6 Gribble, Director of Intelligence and Security “The Routing of Intelligence”, 29 October 1953 [KNA VP 9 10] (CYF-0000030580) [32,9829]; AA 45/55/2A Witness Statement of FDM Erskine 9 October 1954 [Hanslope] (CYF-0000006307) [32,23368]; Central Province Emergency Committee Meeting held on 17th February 1956 [Hanslope] (CYF-0000006060) [32,44786].” (6) This document does not support the proposition for which it is relied upon: there is no reference to torture in the documents. In any event, TC20 does not allege torture in her pleaded case so the relevance of the document is denied. 19 15 (64) 32-44263 32- 44263 Letter from Provincial Commissioner Central Province to Minister for Legal Affairs [Hanslope] (CYF-0000005142) {C} Objected to by D. Overlooked on Schedule B. Cs seek to adduce 3244263. This document goes to establish that the Admninistration knew there had been brutality in Fort Hall at the time at which TC20 was experiencing exactly that. It does not relate to a change of date, but exemplifies what was happening to TC20 at the time of the pleaded incidents. The document is placed in context by the next (1) This document is no longer challenged by D. Cs’ submissions clarify that the document is not being relied upon to bolster a change of pleaded date. The hearing on 10 April 2018 is confined to documents supporting submissions which contradict TC20’s pleading. (2) That the document is no longer challenged for the purposes of the forthcoming As the Defendant states, this document is no longer challenged. references. hearing is without prejudice to D’s submissions that will be made in due course in respect of this document and in respect of Cs’ submissions that the document “goes to establish that the Admninistration [sic] knew there had been brutality in Fort Hall”. 20 15 (64) 32-44398 32- 44398 Letter to C.M. Johnston [Hanslope] (CYF0000040947) {C} On Schedule B of documents not adduced. As above. (1) This document is no longer challenged by D. Cs’ submissions clarify that the document is not being relied upon to bolster a change of pleaded date. The hearing on 10 April 2018 is confined to documents supporting submissions which contradict TC20’s pleading. (2) That the document is no longer challenged for the purposes of the forthcoming hearing is without prejudice to D’s submissions that will be made in due course in respect of this document and in respect of Cs’ submissions that the document “goes to establish that the Admninistration [sic] knew there As the Defendant states, this document is no longer challenged. had been brutality in Fort Hall”. 21 15 (64) 32-44554 32- 44554 Letter from C.M. Johnston to Minister for African Affairs [Hanslope] (CYF0000040948) {C} † Cs' Opening Folder 9; Opening para 630 FN 697. This document was footnoted in the Opening. It demonstrates that the administration was more concerned with its own skin than investigating brutality. Again, it does not contradict any date in the pleading but supports it. The matter was put squarely in Opening at p123. (1) This document is no longer challenged by D. Cs’ submissions clarify that the document is not being relied upon to bolster a change of pleaded date. The hearing on 10 April 2018 is confined to documents supporting submissions which contradict TC20’s pleading. (2) That the document is no longer challenged for the purposes of the forthcoming hearing is without prejudice to D’s submissions that will be made in due course in respect of this document and in respect of Cs’ submissions that the document “demonstrates that the administration was more As the Defendant states, this document is no longer challenged. concerned with its own skin than investigating brutality”, an assertion that is not found in TC20’s Closing Submissions. 22 18 (70.4) 32-15277 32- 15278 Memorandum on the aggregation of the population into villages in rural areas (CYF- 0000038150) {C} † Cs' Opening Folder 4; Opening para 634 FN 701 This document has been addressed as document 1 above. In this paragraph of the submission the document supports the fact that the disruption of normal life caused by villages was known about in 1954. It does not remotely contradict TC20's pleaded case. Quite the contrary: §26 of the IPOC [16-0f] says precisely that. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an (1) This is the same as document 1. (2) Here it is sought to be used in paragraph 70.4 of TC20’s submissions where she says “The village disrupted family life and did not allow food production on site. When villages were proposed, in 1954, both of these things were supposed to be dealt with appropriately [32- 15728].” (3) The Claimants say that this does not remotely contradict TC20’s pleaded case and quite the contrary because paragraph 26 of the IPOC says precisely that. Paragraph 26 of the IPOC does say “The Claimant was unable to carry on her normal family life with her health and, work for pay and private life in these circumstances.” That was in relation to “Githanga village. The submission at unpleaded allegation as to date (1954), which amendment was expressly refused by the Court in the Liability Amendments Judgment. TC20’s Closing Submissions at [48] provide: “Accordingly, it seems likely that TC20 arrived in Thuita around the end of 1954 or the beginning of 1955.” TC20’s Closing Submission at [70.4] adopts the same dates as that impermissible submission in that it provides “[w]hen villages were proposed, in 1954 …”, suggesting that villagisation commenced only from 1954. By contrast, Cs’ contention in this schedule that paragraph 70 was in relation to Thuita village. However at paragraph 23 the Claimant does say about Githanga village that “The living and working conditions were similar to those experienced at Thuita village…” (4) The Claimants say that in this paragraph of the submission (70.4) “The document supports the fact that disruption of normal life caused by villages was known about in 1954.” That is not what the submission says. The submission expressly refers the document to the contention that when proposed in 1954, family life and food production on site were supposed to be dealt with appropriately (5) The document was not referred to in the written opening at paragraph 634 for either contention. TC20’s Closing Submission at [70.4] is concerned with date of knowledge and so “supports the fact that the disruption of normal life caused by villages was known about in 1954” is not consistent with the language used in TC20’s Closing Submission. (5) Deployment of this document in TC20's case is substantially different to that in the Opening. The Opening concerned the alleged adoption of villagisation as a policy, and not disruption to family life and food production. The Opening provided: “Opening para 634. Beginning in March 1953, villagisation had (6) Point (4) in relation to document 1 is repeated. been introduced as an ad hoc measure in various locations throughout the Kikuyu reserves, although it was not until the War Council’s decision to mandate forced villagisation in June 1954 that it became a fullscale policy. Footnote 701 KNA, AB 2/53/1, “Memorandum on the aggregation of the population into villages in rural areas”, 12th April 1954; and PRO, CO 822/481/1, Press Office, Handout No.28, 19th March 1953. (CYF0000038150) [32,15277] It is no coincidence that the decision was made by the War Council and no doubt that the issue of where people lived was determined by the security forces view of what was necessary for security.” 23 19 (72.5) 32-31382 32- 31383 Control of Villages - Nyeri District: Note by the Secretary of the War Council WAR/C.523 [Hanslope; FCO 141/] (CYF0000010317) {C} On Schedule B of documents not adduced. This document supports TC20's account of what happened by confirming that where she was villagised was thought to be a bad location (see §23of the submissions). It is not contradictory of the pleaded case at all. Nor is context required the document speaks for itself. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and (1) This is by reference to paragraph 72 of TC20’s submissions. “The submission that the documentation supports poor conditions in Fort Hall and Nyeri and the punitive nature of villages. D knew that this was detention and that it was wrong.” In 72.4 it is said that TC20’s evidence shows that she was in a “bad area” and 72.5 is that that contention At p2912 of the Consolidated Transcript Cs start to deal with a document dealing with villages: at p2919 there is a reference to bad villages in Nyeri, so it is hardly the case that this issue has never been raised. importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) This document is apparently relied upon in support of an unpleaded allegation as to date (1954-55), which amendment was expressly refused by the Court in the Liability Amendments Judgment. TC20’s Closing Submissions at [48] provide: “Accordingly, it seems likely that TC20 arrived in Thuita around the is supported by the documentation: “In March 1955, Tetu was said to be a bad division and the decision was to fortify the villages there [32- 31383].” (2) The document deals with Nyeri district, one of the divisions being North Tetu. TC20 was not in Nyeri district/North Tetu. Therefore there is little if any relevance in this document. (3) The document is dated 7 March 1955. On the Claimant’s pleaded case she was in Thuita for some two years after about the end of 1953. Although it may be said that what was found in or about early March 1955 might, by inference, relate back to the period she was there, the probative value of this document has not been made out. (4) Point (4) in relation end of 1954 or the beginning of 1955.” TC20’s Closing Submissions at [72.5], when read in the context of the other subparagraphs of [72] including in particular [72.4], and by reason of the phrase “[t]hat [i.e. the submission in [72.4]] is supported by the documentation” appear to submit that the events in March 1955 described in the document in issue were an example of the alleged reaffirmation of the policy of villagisation in 1955 that “TC20 experienced”. (5) The deployment of this document in TC20's case is novel. The document has not to document 1 is repeated. otherwise been adduced in these proceedings. Cs’ submissions refer to various documents on villagisation referred to in the course of the oral Opening. However, the document in issue was never previously adduced. (6) To place this document in context will likely require multiple other documents to be presented to the Court: this might be disproportionate in the context of the litigation in respect of a document relied upon at the highest level of generality. That other documents referring to ‘bad villages’ were referred to in the oral Opening indicates that placing this document in issue might be disproportionate. (7) The document concerns and is deployed as to Tetu, which is not a relevant location on the facts of TC20's case. Row 5 above is repeated as to Cs' assertion that "

“… this happened in 1959-60.”

“C was transferred to Githanga [16-140], probably at the beginning of 1957, having been at Thuita for approximately two years.”

“If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the documents to be referred to and relied upon. However two pages are relied upon as to wage rates in 1956. (5) Mr Myerson Q.C. said this document was in a mass of undifferentiated documents in the KNA. The Claimants did not spot it until the Defendant adduced it after June 2017. (6) The figures now relied upon are greater for some items of Special Damage and less for others. On TC20’s case the global result is a lesser figure, in TC34’s case a greater figure. (7) There will have to be amendment of the Schedule and Counterschedule of Special Damage. (8) Apart from that:- (a) I am unconvinced that there will be any substantially greater work for the Defendant; in fact TC20 Closing Submissions].” (6) This is a 172 page document that will be disproportionate to place in context, as that will likely require multiple other documents to be referred to and relied upon. (7) Cs’ submission that D ought to have pleaded evidence in the TC20 CounterSchedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (8) Restriction of the use of the their workload may diminish and the time spent in work on these issues may diminish. This is because, at the moment, there appear to be a number of disparate sources to support the present claims. These will be made redundant. (b) The Court can adjust for earlier years not covered by this document. That is part of damages assessment generally. (c) The TCs must be looked at individually; some claims may possibly go up; some, like TC20, reduce. (9) The overriding objective and my Denton stage 3 discretion must be in favour of allowing relief from sanctions for this document. (10) There may be arguments about periods of claim but those are nothing to do with this document being allowed in. document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. 28 39 (142) 32-6433 32- 6433 Compensation for land and goods used by government during emergency [AA 45/52 FCO REF FCO 141/6204] (SAV-015595) {D} [DE] † Ds' Response Bundle Vol.1 Compensation Bundle tab _____ As above. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of this document in TC20's case is This is a document which the Defendant adduced to illustrate schemes of compensation and ex gratia payments to loyalists. This particular document is in relation to property loss. The same considerations and the same answers apply as in relation to document 27. novel. The document has not otherwise been adduced by Cs in these proceedings. (5) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (6) Cs’ submission that D ought to have pleaded evidence in the TC20 CounterSchedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (7) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. 29 39 (142) 32-81171 32- 81450 KNA file DC.MUR 3.10.31 [KNA file DC.MUR 3.10.31 ] (SAV-045301) {D}[DE] † D: Agree, subject to possible further documents in response The document is very lengthy but the precise page has been identified. D's agree this document as a response to its generic presentation but not for the purpose of a test case. These documents are also adduced for TC20 and they consist of the best evidence (adduced by D but not relied on in D's Counter Schedules attached to the individual Defences) available to assess special damages. D is able to adduce further documents for the test cases. If those documents also go to the general point about the value of (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. For avoidance of doubt, this document does not respond to a (1) This is also a property loss document. In this case it is a claim by a “Mr Njuguna” dated 5 October 1956. (2) This raises the same issues as document 27 and the answer is the same. special damages then on D's anlysis they should have been adduced earlier. Cs do not object to that, but rely on it in support of their submission that D is not treating both sides equally here. D's case is that each TC should have identified all documents by June 2017 and that adducing a document for general purposes is not good enough (despite what was said by Mr Mansfield QC in open court and to Mr Cox QC and Mr Myerson QC). D has not provided any evidence of when this was said. It merely says that it was the position. If it was not made document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (4) The deployment of the document is novel in TC20's case. It has not been otherwise adduced. (5) This document is 337 pages long. To place it in context might be disproportionate in the context of the litigation. (6) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- express, then D adopting a different position for itself is evidence that Cs were justified in understanding the position as explained by Mr Martin in his witness statement of 20th March 2018. The document itself is evidence of contemporaneous value. 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].”

“If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (6) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (7) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (8) Such as Cs’ submission “as above” was intended to capture other documents concerning special damages, those submissions are repeated, as applicable. 31 39 (142) 32-53961 32- 53961 Compensation for land and goods used by government during emergency [AA 45/52 FCO REF FCO 141/6204] (SAV-015616) {D} D: Agree As 29 above (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of the document is novel in TC20's case. It Not permitted. This raises a somewhat complex and unpleaded problem of potential double counting of loss of earnings and loss of value of crop production, see point (4) on document (1). has not been otherwise adduced by Cs in these proceedings. For avoidance of doubt, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (5) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (6) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (7) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (8) Cs’ submission that “D is not treating both sides equally here” is not understood. The Cs appear to be rehearsing their mistaken construction of the March and June Orders, which is not a good reason for relief from sanctions. The issue arising on this application is not whether D is or even should treat Cs fairly: it is that Cs breached the March and June Orders and need relief from the effects of that breach. (9) Cs’ submission as to what was said by Mr Mansfield QC is addressed in Ruth Bradbury’s latest witness statement. That evidence is adopted, including reference to the 14 June 2017 letter. 32 39 (143) 32-81171 3281390- 1 KNA file DC.MUR 3.10.31 [KNA file DC.MUR 3.10.31 ] (SAV-045301) {D}[DE] † D: Agree, subject to possible further documents in response As 29 above (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of the document is novel in TC20's case. It This raises the same issues as for document 27 and the answer is the same. has not been otherwise adduced. For avoidance of doubt, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (5) This document is 337 pages long. To place it in context might be disproportionate in the context of the litigation. (6) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (7) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (8) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (9) Cs’ submission that “D is not treating both sides equally here” is not understood. The Cs appear to be rehearsing their mistaken construction of the March and June Orders, which is not a good reason for relief from sanctions. The issue arising on this application is not whether D is or even should treat Cs fairly: it is that Cs breached the March and June Orders and need relief from the effects of that breach. (10) Cs’ submission as to what was said by Mr Mansfield QC is addressed in Ruth Bradbury’s latest witness statement. That evidence is adopted, including reference to the 14 June 2017 letter. 33 39 (143) 32-81171 3281450- 1 KNA file DC.MUR 3.10.31 [KNA file DC.MUR 3.10.31 ] (SAV-045301) {D}[DE] † D: Agree, subject to possible further documents in response As 29 above (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of the document is novel in TC20's case. It This raises the same issues as for document 27 and the answer is the same. has not been otherwise adduced. For avoidance of doubt, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (5) This document is 337 pages long. To place it in context might be disproportionate in the context of the litigation. (6) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (7) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (8) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (9) Cs’ submission that “D is not treating both sides equally here” is not understood. The Cs appear to be rehearsing their mistaken construction of the March and June Orders, which is not a good reason for relief from sanctions. The issue arising on this application is not whether D is or even should treat Cs fairly: it is that Cs breached the March and June Orders and need relief from the effects of that breach. (10) Cs’ submission as to what was said by Mr Mansfield QC is addressed in Ruth Bradbury’s latest witness statement. That evidence is adopted, including reference to the 14 June 2017 letter. 34 39 (144) 32-82270 32- 82274 Manual - Appendix A - Procedure for the Payment of Wages [JZ12] (SAV024221) {D} Ds' Communal Labour Bundle; A_25 As 29 above. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of the document is novel in TC20's case. It This raises the same issues as for document 27 and the answer is the same. has not been otherwise adduced. For avoidance of doubt, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (5) This document is 11 pages long. To place it in context might be disproportionate in the context of the litigation. (6) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (7) In any event, the document does not support the proposition asserted, namely that the value of TC20's alleged forced labour was 8KSh per month. (8) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (9) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (10) Cs’ submission that “D is not treating both sides equally here” is not understood. The Cs appear to be rehearsing their mistaken construction of the March and June Orders, which is not a good reason for relief from sanctions. The issue arising on this application is not whether D is or even should treat Cs fairly: it is that Cs breached the March and June Orders and need relief from the effects of that breach. (11) Cs’ submission as to what was said by Mr Mansfield QC is addressed in Ruth Bradbury’s latest witness statement. That evidence is adopted, including reference to the 14 June 2017 letter. 35 45 (178.1) 32-81171 32- 81450 KNA file DC.MUR 3.10.31 [KNA file DC.MUR 3.10.31 ] (SAV-045301) {D}[DE] † D: Agree, subject to possible further documents in response As 29 above. (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of the document is novel in TC20's case. It This raises the same issues as for document 27 and the answer is the same. has not been otherwise adduced. For avoidance of doubt, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (5) This document is 337 pages long. To place it in context might be disproportionate in the context of the litigation. (6) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (7) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (8) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (9) Cs’ submission that “D is not treating both sides equally here” is not understood. The Cs appear to be rehearsing their mistaken construction of the March and June Orders, which is not a good reason for relief from sanctions. The issue arising on this application is not whether D is or even should treat Cs fairly: it is that Cs breached the March and June Orders and need relief from the effects of that breach. (10) Cs’ submission as to what was said by Mr Mansfield QC is addressed in Ruth Bradbury’s latest witness statement. That evidence is adopted, including reference to the 14 June 2017 letter. 36 45 (178.2) 32-81171 32- 81450 KNA file DC.MUR 3.10.31 [KNA file DC.MUR 3.10.31 ] (SAV-045301) {D}[DE] † D: Agree, subject to possible further documents in response As 29 above (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of the document is novel in TC20's case. It This raises the same issues as for document 27 and the answer is the same. has not been otherwise adduced. For avoidance of doubt, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (5) This document is 337 pages long. To place it in context might be disproportionate in the context of the litigation. (6) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (7) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (8) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (9) Cs’ submission that “D is not treating both sides equally here” is not understood. The Cs appear to be rehearsing their mistaken construction of the March and June Orders, which is not a good reason for relief from sanctions. The issue arising on this application is not whether D is or even should treat Cs fairly: it is that Cs breached the March and June Orders and need relief from the effects of that breach. (10) Cs’ submission as to what was said by Mr Mansfield QC is addressed in Ruth Bradbury’s latest witness statement. That evidence is adopted, including reference to the 14 June 2017 letter. 37 45 (178.3) 32-20206 32- 20206 Compensation Claims [DC/MUR/3/10/13] (SAV-002606) {D}[DE] † Ds' Response Bundle Vol.3 Compensation Bundle tab ___ duplicate of No 30 above (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged This is a duplicate of document 30. importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of the document is novel in TC20's case. It has not been otherwise adduced. For avoidance of doubt, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (5) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (6) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (7) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (8) Such as Cs’ submission at Row 30 stating “as above” was intended to capture other documents concerning special damages, those submissions are repeated, as applicable. 38 45 (178.4) 32-20206 32- 20206 Compensation Claims [DC/MUR/3/10/13] (SAV-002606) {D}[DE] † Ds' Response Bundle Vol.3 Compensation Bundle tab ___ duplicate of Nos 30 and 38 above (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such This is a duplicate of documents 30 and 37. that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of the document is novel in TC20's case. It has not been otherwise adduced. For avoidance of doubt, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (5) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (6) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (7) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (8) Such as Cs’ submission at Row 30 stating “as above” was intended to capture other documents concerning special damages, those submissions are repeated, as applicable. 39 45 (178.5) 32-53961 32- 53961 Compensation for land and goods used by government during emergency [AA 45/52 FCO REF FCO 141/6204] (SAV-015616) {D} D: Agree As 29 above and duplicate of No 31 above (1) Cs have not explained why this document was not on list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. It is for Cs to persuade the Court of the relevance and importance of the document such that the Court should permit reliance. (3) Cs have not explained why they did not alert D to this document in This is a duplicate of document 31. The answer is the same. relation to TC20 when they became aware that they wished to rely upon it. (4) The deployment of the document is novel in TC20's case. It has not been otherwise adduced by Cs in these proceedings. For avoidance of doubt, this document does not respond to a document relied upon by D in its submissions in this test case, which submissions have not yet been delivered. (5) The document is objected to insofar as it is relied upon by TC20 to seek special damages on a higher basis of calculation or in excess of the sums pleaded by TC20 (as set out in the Scott Schedule accompanying her pleading e.g. at [1220bi] and [1- 220bn to 1- 220bo]). D relies upon the Amended Counter-Schedule, which pleaded: “If and to the extent that the Claimant’s Closing Submissions reduce the basis of calculation and/or quantum of any head of damage, the Claimant is bound by that later document [i.e. the TC20 Closing Submissions].” (6) Cs’ apparent submission that D ought to have pleaded evidence in the TC20 Counter-Schedule is misguided. There is no such obligation. A fortiori, Cs cannot point to the absence of the document from the TC20 CounterSchedule as a proper explanation of why Cs did not adduce the document in TC20’s June list. (7) Restriction of the use of the document in TC20’s case is a consequence of both Cs’ breach of the March and June Orders and the consequent sanction and that TC20 should not be permitted to use the figures in this document to augment the sums claimed as special damages. (8) Cs’ submission that “D is not treating both sides equally here” is not understood. The Cs appear to be rehearsing their mistaken construction of the March and June Orders, which is not a good reason for relief from sanctions. The issue arising on this application is not whether D is or even should treat Cs fairly: it is that Cs breached the March and June Orders and need relief from the effects of that breach. (9) Cs’ submission as to what was said by Mr Mansfield QC is addressed in Ruth Bradbury’s latest witness statement. That evidence is adopted, including reference to the 14 June 2017 letter. 44. TC34 Schedule Row # Submission Page (Para) Document ref (first page) Page ref Document name On another TC June list? In a bundle? Adduced elsewhere? Cs’ Submissions D’s Submissions in response Judge’s Comments 1 4 (14a) 32-18320 32- 18325 Minutes of the first meeting of a permanent working party to consider the movement of detainees. Held in the Office of the Minister For Defence on 31st May 1954 [TNA WO276/428] (CYF-0000000314) {C} TCs 13, 26 & 29 This document is adduced via TC26's Submission (regarding another camp). Here, it demonstrates the progress of Manyani. TC34's pleaded case is that he was arrested in 1955. The Submission is (1) Cs have not explained why this document was not on TC34's list in June 2017. (2) Cs have not explained when they became aware of this document and/or its alleged importance in relation to this TC. (3) Cs have not explained why they did not alert D to this (1) The document deals with projected numbers and building at Manyani for May-June 1954. (2) The time of arrival at Manyani, according to the Claimants’ documentation, is something of a moving target in that: a. Paragraph 9 IPOC (not subject to the August 2017 amendment hearing) states “In 1955 the Claimant was working in Nairobi”

“The issue is whether Yatta and Mwea Camps are the same. That was TC34's evidence, as his Submission sets out at §106.”