Kimathi and Ors v Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 18 August 2017 |
| Neutral Citation | [2017] EWHC 2145 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X02162 |
| Date | 18 August 2017 |
[2017] EWHC 2145 (QB)
IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Royal Courts of Justice Strand London, WC2A 2LL
Mr Justice Stewart
Case No: HQ13X02162
Simon Myerson QC & Mary Ruck & Stephen Flint (instructed by Tandem Law) for the Claimants
Guy Mansfield QC, Niazi Fetto, Mathew Gullick, Jack Holborn & Stephen Kosmin (instructed by Government Legal Department) for the Defendant
Hearing date: 19 July 2017, 15 & 16 August 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Foreword
This judgment is in two parts for this reason. Part 1 deals with proposed amendments to the claims made by the Test Claimants ("TC") numbered 5, 9, 10, 12, 13, 14, 18, 21, 22 and 39. The hearing took place on 19 July 2017 and the draft judgment including a Schedule dealing with the rulings on individual amendments, was sent out on 21 July 2017. At that time it was known that the Claimants would serve proposed amendments for another 11 TCs later that day. Rather than await the end of the long vacation for a ruling on those further amendments, the Court agreed to sit during the week commencing 14 August 2017 and to hand down one comprehensive judgment. That draft is now Part 1 of this judgment. Part 2 of the judgment briefly refers to the further amendments but the detail of the rulings, based largely on the same background and reasoning as Part 1, is to be found in the Schedule to Judgment (Part 2). That said, Part 2 of the Judgment also includes supplementary paragraphs dealing in particular with some overarching points first made, or further developed, by the Defendant at the second hearing. At this stage, I mention one issue in particular, relating to Statements of Truth. My draft judgment on this for the first tranche of 10 Amendments is in paragraph 19. I have not changed this, but I revisit the issue in Part 2 in the light of further submissions and evidence.
Apart from one small addition to paragraph 23, to make brief reference to the case of Patel which was additionally cited to me on 15 August, Part 1 is essentially unchanged. In this way I have attempted to limit the need for re-writing and re-checking, given the exigencies of time available – judgment is scheduled to be handed down on Friday 18 August, the submissions having been completed after an extended day's sitting on Tuesday 15 August and sitting from 9.30am to about 12.15pm on Wednesday 16 August. It also better reflects how the submissions were deployed.
JUDGMENT PART 1
Introduction
This judgment deals with two matters:
(i) The Defendant's objections to some amendments made to the Individual Particulars of Claim (IPOCs) served by the Claimants pursuant to Order sealed on 5 June 2017.
(ii) It incorporates some history of the proceedings relevant in part to these amendments, but also to consideration which I will have to give to the future timetabling of the action.
The IPOC Amendments Background
On 27 April 2017 I gave judgment in relation to an application made by the Claimants on 9 March 2017 seeking an order granting permission to amend the Generic Particulars of Claim and the IPOCs. The neutral citation number is [2017] EWHC 938 (QB).
The consequential Order was made on 19 May 2017 (sealed 5 June 2017). The relevant provisions are:
"2. The Claimants have permission to amend the Individual Particulars of Claim and Schedules of Loss of Test Claimants 1 (NK), 27 (Maina Ngaari), 30 (HM) and 31 (Robert Ngethe), in the form of the drafts appended to this order.
…
Further amendment of Individual Particulars of Claim
4. The Claimants shall:
a. by 4pm on 16 June 2017 serve on the Defendant all further draft (re-) amended individual particulars of claim which they intend to amend on issues of liability, showing those amendments in their final draft form;
b. by no later than 4pm on 15 September 2017, and earlier if and to the extent practicable, serve on the Defendant their final draft further (re-) amended individual particulars of claim and schedules of loss, showing both the aforementioned amendments on liability and those on all other issues.
5. The parties have liberty to apply in the event that any of the amendments are disputed.
6. Where all proposed further amendments in any individual particulars of claim and schedule of loss are agreed, the Lead Solicitors shall formally file and serve the relevant (re-) amended individual particulars of claim and schedule of loss within 7 days of such agreement, unless this step is dispensed with by agreement between the parties."
It is pursuant to the Liberty to Apply disputing amendments that the Defendant brings the matter before the Court. The Defendant relies on evidence in the sixth witness statement of Andrew Robertson, a senior lawyer in the Government Legal Department.
To put the matter in context it is useful to set out a chronology:
| 24 February 2017 | — Claimants first gave notice of their proposed application to amend the IPOCs |
| 24 February 2017 | — Defendant wrote to Claimants expressing concern, given that the application was made 1 1/2; years after the medical reports had been obtained, a number of months after the conclusion of the oral evidence of the TCs (June/July 2016) and shortly after the conclusion of the oral evidence of the medical experts (January/February 2017). |
| 9 March 2017 | — Claimants' application to amend. The application notice also covered proposed amendments to the Generic Particulars of Claim. It did not include proposed specific amendments to the IPOCs. In Mr Martin's witness statement in support he said (paragraph 7) "…certain aspects of the Claims required clarification and, where appropriate, concession." In paragraph 8 he said that there were three main areas of amendment. Apart from removing reference to section 14 Limitation Act 1980 these were "b) clarification in the light of the evidence: for example, to plead where an injury has been clarified by the medical evidence (for example, as the Particulars of the contents of flashbacks suffered or physical injury); c) concession in light of the evidence: for example, to adjust the claim for chattel/livestock, where it was established that there was ownership between husband and wife; or to provide concessions in physical/psychiatric injury in light of medical evidence." He said (paragraph 11) that the amendment to pleadings should be undertaken in the course of preparing final submissions and the process of review, preparation and drafting in full would be started after Easter. |
| 13 March 2017 (First Day of CMC) | — Mr Myerson QC said that the application was "To amend the Individual Particulars of Claim to bring the injury position up to date". He also said that the Claimants might also want to mention other documentation that had been found to apply as the Claimants had gone through the opening. Essentially he said that would be evidence rather than pleading. There was then a discussion with the Court in which Mr Myerson proposed providing examples of the draft IPOCs and said that it would be easier to provide the draft IPOCs at the same time as the draft final submissions in respect of each TC. |
| 14 March 2017 (2 nd | — The Defendant raised concerns about the lack of Day of CMC) particulars to the proposed amended IPOCs and the effect on the Defendant's preparation if there was delay. The Court ordered three sample proposed amended IPOCs. In fact four were provided by the Claimants, namely for TCs 1, 27, 30 and 31. |
| 22 March 2017 | – Mr Martin's ninth witness statement was served. In paragraph 16 he said that the four draft amended IPOCs were "indicative of the type of amendments that are likely to be made to the pleadings in other test cases." Mr Martin said that the Claimants wished to prepare the amended IPOCs at the same time as reviewing each of the test cases to prepare submissions and proposed that the remaining amended IPOCs be served by 22 September 2017 (i.e. within a period of some six months). It is to be noted that this witness statement and the evidence in support of the application constitute the evidence supporting the application to amend the IPOCs. |
The above is the skeletal chronology in relation to the application to amend the IPOCs up to the date of the hearing of the application which took place on 6 April 2017. Judgment was handed down on 27 April 2017: [2017] EWHC 938 (QB). The material section of the judgment is in paragraphs 26–32. I do not propose to repeat it. The essentials are:
(i) In terms of the injuries, the proposed amendments updated the age of 4 Claimants and removed some alleged injuries in the light of the medical evidence. In relation to 3 other injury amendments, these were allowed on the basis that "the Claimants do not seek to amend so as to rely upon any specific injuries not already pleaded in the Particulars of Injury." (Paragraph 28)
(ii) In relation to TC1 and TC30 some amendments were permitted to specify particular dates in circumstances where the original IPOCs did not specify such dates. In paragraph 31 (iv) I allowed the amendments on the basis that the IPOCs were then open as to dates and the proposed amendments did no more than particularise the claim. I recorded "If the amendments as to dates are permitted, as they are, the Defendant accepts that there could be no proper objection to the amendments including the documents supporting those dates."
(iii) An amendment was allowed for TC27, alleging that his electrocution which had been pleaded to have taken place at Kangema camp could be alternatively pleaded as Murang'a Police Station....
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