Oliver’s Army

Don’t start that talking, I could talk all night
My mind was sleepwalking, While I’m putting the world to right
Call careers information, Have you got yourself an occupation?

-Elvis Costello

Race discrimination is a pernicious evil in our society. In the nearly 20 years I practised in discrimination law, as well as sex and disability discrimination claims in the employment tribunal and county court, I often dealt with claims concerning race.  I observed that the reasons for discrimination are complex: they can range from ignorance, stereotyping, assumptions and unconscious bias to outright malice.

If one digs deeper, the dead hand of history and this country’s Imperial past illustrates why and how, the atavistic treatment of different races was seen as justified on the grounds that they were “other” and “lesser”. The end of Empire was a grim, shameful and bloody chapter in this country’s history.

A coda to this chapter was the Mau Mau litigation in the last decade. The litigation was complex, protracted and mixed in terms of its success for the claimants.

I have selected this litigation as a case study in group litigation to consider what worked and what didn’t work, and what lessons may be learnt for future litigation, in particular consideration of the issues which might dictate whether litigation funding would available for a claim of similar scale and complexity.

If you wish to understand what Mau Mau was, for an interesting and absorbing view of the Mau Mau conflict, albeit not one free from controversy see Caroline Elkin’s book, Imperial Reckoning.

But in essence for our purposes, it is sufficient to note that the Mau Mau conflict, was a rebellion in 1950s Kenya, which at that time was a colony.

The rebellion was suppressed by locally recruited and British troops with great cruelty: numerous crimes including torture and murder were inflicted on British colonial subjects by the forces of the Crown.

So many, many, years after the events of the 1950s, litigation was begun to seek recompense for the victims, the first tranche of whom were represented by  Leigh Day.

The litigation was successful, with attempts to argue that the claims should be struck out or were barred by limitation failing: the case on the latter point came to court and was decided by McCombe J and reported as: Ndiki Mutua, Paulo Nzili, Wambugu Wa Nyingi, Jane Muthoni Mara, Susan Ngondi v The Foreign and Commonwealth Office [2012] EWHC 2678 (QB).

That case was not a group action: but where admissions had been made by the Defendant in respect of a number of claimants as to the facts of their ill treatment, the limitation period was disapplied in respect of all but one of the claimants. The government then settled.

As the BBC reported in 2013 https://www.bbc.com/news/uk-22790037:

“I would like to make clear now, and for the first time, on behalf of Her Majesty’s government, that we understand the pain and grievance felt by those who were involved in the events of the emergency in Kenya,” he told the Commons.

“The British government recognises that Kenyans were subject to torture and other forms of ill-treatment at the hands of the colonial administration.

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

Mr Hague said 5,228 victims would receive payments totalling £19.9m following an agreement with lawyers acting for the victims, who have been fighting for compensation for a number of years.

The compensation amounts to about £3,000 per victim and applies only to the living survivors of the abuses that took place.

The same BBC report also noted:

But Bryan Cox, who is representing Tandem Law, said there were “thousands” of further claims that remain unresolved and “the matter was far from over”.

He said the law firm was working with more than 8,000 Kenyans who were still awaiting an agreement with the UK government.

It might have seemed that any further litigation would be straightforward and limited to issues of quantum. But wheels were turning, and the government, despite its statements, was moving towards a change in strategy, when considering the further claims of thousands of Kenyans which remained to be brought. In particular, the issue of limitation was to be dusted off and reformulated, as the principal defence to any further claims. Thus the scene was set for more litigation. 

A further tranche of claims were brought and the evolution of this second tranche of litigation, which did proceed by way of a Group Litigation Order, can be traced in the judgments at: Kimathi v Foreign and Commonwealth Office [2016] EWHC 600 (QB), dealing with preliminary issues and also that of Kimathi v Foreign and Commonwealth Office [2017] EWHC 203 (QB), amendments to the pleadings in  Kimathi v Foreign and Commonwealth Office [2017] EWHC 938 (QB), and in the judgment of  Kimathi v Foreign and Commonwealth Office [2018] EWHC 1169 (QB), the first in a series of defeats were inflicted on the claimants on issues pertinent to limitation.

In effect, the claimants’ best case lay for a decision under section 33 of the Limitation Act 1980 to be made in their favour, and another interesting judgment was made on whether “fear” amounted to a personal inury: Kimathi v Foreign and Commonwealth Office [2018] EWHC 1305 (QB),

And so matters moved inexorably to the denouement. To the outside observer it might have seemed that the claimants were in a comfortable position, given the conclusions in the earlier litigation. But as Stewart J noted in Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB)

16. There are many differences between the Mutua litigation and the present litigation. Some important ones are:

 Mutua was not Group Litigation within the meaning of CPR Part 19.

 The only allegations against the Defendant were of deliberately inflicted
injuries by perpetrators in circumstances where it was said the Defendant was liable for those acts. The Claimants in the present case brought claims on a much wider range of alleged tortious behaviour.

 The Claimants in Mutua did not rely on Section 32 of the Limitation Act 1980. The present Claimants did so. I ruled against them in May 2018. The effect of my previous judgments in this case is that there now remain, as was always the case in Mutua, allegations only of trespass to the person, i.e. batteries.

 In respect of the 3 Claimants who succeeded in Mutua, at the outset of the
cross examination on the Section 33 preliminary issue:

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

 The Defendant has made no such admissions in the present litigation. This is a very important distinction between the two cases.

 As I have mentioned, in Mutua, limitation was heard as a preliminary issue. The Defendant applied in the present proceedings for me to do the same. The Claimants objected. I ruled in the Claimants’ favour. Subsequently, the Defendant has stated in open court on more than one occasion that it considers in retrospect that I was right so to rule.

He went on to dismiss the claimant’s claim:

480. The Defendant’s ability to defend has been severely compromised by the delay. Had the claim been brought in time, or even at some stage during the mid-1960s, the evidence available to the Defendant, both documentary and witness, would have been much greater.

481. It is difficult, given the loss of witnesses and documents over time, to determine up to when there could have been a fair trial of some or all of TC34’s claims. Had the claim been brought in, say, the 1970s or even later, the evidential position then obtaining would have had to be examined in the sort of detail in which it has now been done. What is clear is that there cannot now be a fair trial of any of the core allegations. That is because of the delay.

482. In coming to my decision I have had regard to all the circumstances of the case, but specifically those under section 33(3).

483. I should add that my decision would have been the same even if I had been able to put into the balance all the reasons for delay which had been pleaded in the Reply, and the others which were the subject of the Claimants’ submissions. These reasons, and others if evidenced, may well also have had an effect in TC34’s favour under section 33(3)(e) and (f). Nevertheless, the unfairness to the Defendant in defending TC34’s core allegations would have still outweighed the prejudice to TC34. Even with those reasons to qualify or temper the prejudice to the Defendant, it would not have been fair and just in all the circumstances to expect the Defendant to meet the claims on the merits.

484. In short, I must refuse to exercise my section 33 discretion in TC34’s favour on all his claims for personal injury arising from the core allegations. The position is encapsulated in the words of Lord Brown in A v Hoare already cited: “By no means everyone who brings a late claim for damages….. however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour”. In Davies Tomlinson LJ said at [55] that section 33: “…is a corrective for injustice where the circumstances allow.” The circumstances do not so allow in TC34’s claims.

In Kimathi v Foreign and Commonwealth Office [2018] EWHC 3144 (QB) the judge dismissing a further claimant’s claim noted:

317. Any metaphor must be limited if it attempts to describe the nuances and complexity of properly exercising section 33 discretion in a personal injury case. My judgment and its reasoning stands, irrespective of this metaphor or any shortcomings it may have. That said, it may assist to think of likening the evidence in a case to the components which are required to construct a boat. The aim of the litigation is for each party to attempt to steer the boat across the sea to a different final port, and to use sections of the evidential structure of the boat to influence the direction of travel. When a claim is out of time, the question is whether the boat is seaworthy to launch. If it is, even though it may have defects, then generally it will be proper to allow the voyage to take place. In the case of TC 20 (and TC 34) there is little more than a lop-sided basic structure of a vessel with many essential components missing. The main missing components are evidence from witnesses and documents. The absence of these components, without more, necessitates that the boat must not be put on the water, as it would be doomed to sink immediately. Had TC 20 evidenced all her pleaded reasons for the delay, this would have made no difference. The missing components of witnesses and documents would still be so serious that the boat could not be launched. If the defects caused by their absence had been much less serious, such that the boat, albeit with difficulty, could have safely reached a port, it would have been a different matter. Factors such as inconsistencies in TC 20’s evidence further undermine the cogency of TC 20’s evidence and, consequentially, the structure of the boat. Had they been the only, or the major, defects, this would have called for a different judgment on sea-worthiness. In this case, however, inconsistencies serve only to increase the failings in that part of the boat constructed from TC 20’s evidence. With or without them, the boat is doomed to fail. Rather than putting to sea in a boat which is at least capable of sailing, it would be like putting to sea in a sieve. The inconsistencies increase the size of some of the holes. In short, the boat, i.e. TC 20’s claim, cannot be allowed on the water.

The group litigation failed and was later dismissed, with tens of thousands of claims failing. An application for permission to appeal to the Court of Appeal failed. This was an extraordinary piece of litigation, for many reasons, but it illustrates a number of practice points, which have relevance for those considering entering the funding of group litigation.

At first blush, this litigation would have had attractions to potential backers: a defendant with “deep pockets”, a track record of successful previous claims, and a wealth of circumstantial evidence to support the further claims. But dig a little deeper, and problems become discernible.

The first point to make is that because the allegations were historic, in the proper sense of that word, limitation was always going to be a potential issue. The significance of the admissions in the first tranche and the non-admissions in the second tranche, marked a change of strategy on the part of the defendant which changed the landscape of the limitation arguments. There could be no guarantee that such admissions would be replicated.

If a defendant is seriously going to contest limitation (and hence liability) a non admission and putting a claimant to proof can be a serious impediment. In short, to maximise the prospects of success any group litigation should be brought in time to avoid limitation ever being an issue and will not seek to rely on the cogency of evidence that had lost its cogency, decades before any trial. Historic claims are not attractive funding options.

The second point is that because the claimants were from overseas and were foreign nationals, the problems of taking instructions, obtaining evidence and managing the litigation would have been acute. The most obvious example is  when interpreters have to be used to take instructions, and translation of witness statements undertaken. Subtleties can be lost and translations prove problematic. But this adds practical problems to the management of any large scale litigation, which cannot be underestimated. These cases are not attractive funding options for this reason too.

The third point is the issue of systemic risk. This case would have represented a massive investment for the solicitors and counsel involved in the case. Unless litigation funding is available, and ideally ATE insurance for large scale group litigation, such a case can cause tremendous problems in terms of the potential damage to the lawyers practices, as no case is too big to fail.

It follows that when considering the merits of a potential group action, careful consideration must always be given first and foremost to the downsides: whether as a business proposition it represents an unacceptable risk, to the health of the firms that pursue it, should it, in fact, fail.

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