Kimathi and Others v The Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 28 March 2018 |
| Neutral Citation | [2018] EWHC 686 (QB) |
| Docket Number | Case No: HQ13X02162 |
| Court | Queen's Bench Division |
| Date | 28 March 2018 |
[2018] EWHC 686 (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, Zachary DouglasQC & Edward Craven (instructed by Tandem Law (Lead Solicitors)) for the Claimants
Guy Mansfield QC, Neil BlockQC & Simon Murray (instructed by Government Legal Department) for the Defendant
Hearing dates: 21 March 2018
Introduction
On 9 January 2018 the Claimants issued an application notice seeking “To vary the Order dated 27 October 2016 in relation to the long stop limitation date from 4 June 1954 to 4 June 1953 on the basis of what the Claimants will say is the correct interpretation of the decision in Arnold v Central Electricity Generating Board [1988] AC 228.”
In correspondence the Defendant raised the issue of the Court's power to vary the Order. The parties mentioned the matter in Court on 22 January 2018. At that hearing the Defendant contended that the Claimants needed permission to amend their Re-Re-Amended Generic Reply. The Claimants did not accept this, but said that they would apply to amend so that the Court could determine whether amendment was necessary. After discussion it was decided that the most efficient way forward would be for the Court to hear procedural arguments as to whether:
(1) permission to amend was required, and if so should it be granted;
(2) the Court has power to vary the Order of 27 October 2016;
(3) in any event, the Court should permit the Claimants to argue the point having regard to the Order of 27 October 2016. This is a separate case management issue if no permission to amend is required; if permission to amend is required it may form part of whether or not to grant permission to amend.
Those three issues were clarified in e-mail correspondence between the parties and the Court. During that correspondence the Claimants intimated that they might not proceed with (2) above, but would seek the permission of the Court to appeal the substance of the October 2016 Order to the Court of Appeal. The ground of appeal is said to be that the Order is founded upon an incorrect interpretation or application of the case of Arnold, and is wrong as a matter of law, because the longstop date should be 4 June 1953 rather than 4 June 1954.
Nevertheless, the Court stated that it would determine issues (1) and (3) even if they must fail in any event before this Court, if it is accepted for the purposes of this application that the October 2016 Order is sought to be challenged by an appeal and not by a variation in the High Court. [The Claimants state that they do not accept that this Court lacks power to vary the Order, but say that they wish to avoid further satellite litigation. The Defendant disputes this, saying the court has no such power. The matter has not been argued before me]. The reason why issues (1) and (3) should be determined at this stage is that they are relevant as to whether this Court, or the Court of Appeal, would give permission to appeal.
On 2 February 2018 an amended application notice was issued by the Claimants. In reality this is a fresh application notice rather than an amended one. Indeed, by letter dated 9 February 2018, the Claimants confirmed: “The Application dated 2 February 2018 replaces the application served on 9 January 2018”. It seeks the following relief:
“(1) To amend the reply to defence, if required, to plead that the correct longstop limitation date in accordance with Arnold v Central Electricity Generating Board…is 4 June 1953 rather than 4 June 1954.
(2) To obtain the permission of the Court to allow the Claimants to argue this point having regard to the Order of 27 October 2016.”
On 28 February 2018 the Claimants issued a third Application Notice seeking “permission to appeal against paragraph 1 of the Order………. dated 27 October 2016 so that the Claimants may argue before the Court of Appeal that Claimants with causes of action against the Defendant that accrued between 4 June 1953 and 4 June 1954 are not subject to an absolute limitation bar….”
A detailed chronology of matters relevant to this application is appended to this judgment.
The Relevant Pleadings to Date and the Order of 27 October 2016
The original Generic Defence, served 31 October 2014, which has not been amended in this regard, pleads:
“88. All of the Claimants' claims in tort are time-barred on one or more of the following bases:
(a) There is an absolute time-bar in respect of all claims, whether for personal injuries or not, arising from events that occurred prior to 4 June 1954…”
(b) The Claimants' personal injury claims, insofar as they are based on events on or after 4 June 1954 are time-barred by operation of ss. 11 or 12 of the Limitation Act 1980, as the Claimants' dates of knowledge (as defined by s.14) are more than 3 years prior to the issue of proceedings on 28 March 2013……..”
The Amended Generic Reply (dated 18 March 2016) responded to this ground of defence as follows:
“39. The Limitation Act 1980 must be interpreted consistently with the United Kingdom's international obligations (both under the European Convention on Human Rights and other relevant treaties as well as under customary international law) and in a manner that does not offend fundamental rights by virtue of section 3 of the HRA and the presumption of compatibility and the principle of legality in the common law. The Defendant's interpretation of the Limitation Act as denying the Claimants an effective remedy for torts committed against them prior to 4 June 1954 should be rejected as inconsistent with those principles.”
[The original Generic Reply served on 29 January 2015 had been:
“ Limitation (paragraphs 89–96)
39. As a matter of domestic law, paragraph 88a of the Defence is correct. The Claimants' case is that the Limitation Act thereby denies the Claimants an effective remedy for torts committed against them prior to 4 June 1954, and is thereby a breach of Article 13 of the ECHR. However:
a. Schedule 2.9(1) of the Limitation Act provides that “nothing in any provision of this act shall (a) enable any action to be brought…”
b. It is for the Defendant to decide if it wishes to rely on a limitation defence and, if so, to plead it as a plea in bar.
c. By so doing the Defendant requires the Claimants to rely on the Limitation Act.
d. The Defendant therefore creates the breach of the ECHR and consequent incompatibility of the Limitation Act with the ECHR.
e. It is open to the Court to declare such reliance an abuse; should the court not do so, it is in breach of its obligations as a public body and is in breach of Article 6 of the ECHR.
f. If the Court does declare it an abuse, the Claimants would not then need to rely on the provisions of the Limitation Act 1980 and there would be no breach of Article 13 ECHR or incompatibility.”]
In an order dated 18 March 2016 the Court ordered:
“33. The following preliminary issues are to be dealt with at the start of trial, commencing on 7 November 2016:
(i)……
(ii)………
(iii) Whether there is an absolute time-bar on claims that accrued prior to 4 June 1954.”
The Claimants refer to the fact that on 18 March 2016 the Court stated:
“There is House of Lords authority that causes of action arising prior to 4 June 1954 are time-barred. The Claimants seek to distinguish this. It is agreed that this could be dealt with as a short preliminary issue.”
The Claimants emphasise the sentence “The Claimants seek to distinguish this.” However at this stage, and at no stage until December 2017, was the point subject to this application referred to. Indeed it had not crossed the Claimants' horizons as a possibility until late 2017. In this regard it is of note that the skeleton argument for the October 2016 preliminary issue, signed by Messrs Myerson QC and Douglas QC, said at para 7:
“Under the 1939 Act, with some limited exceptions, personal injury claims would become time-barred six years after the cause of action arose, and in the case of public authorities, one year after the cause of action arose. This in effect would mean that claims arising before 4 June 1954 could not now be brought.”
The substance of the Order of 27 October 2016 needs to be set out in full:
“ AND UPON the Court having ordered the trial of a preliminary issue by paragraph 33 of the Order dated 18 March 16, namely “whether there is an absolute time-bar on claims that accrued prior to 4 June 1954”
AND UPON the Claimants having conceded that the Court is bound by Arnold v Central Electricity Generating Board [1988] AC 228 and McDonnell v Congregation of Christian Brothers Trustees [2003] UKHL 63, [2004] 1 AC 1101, and reserving their position on the preliminary issue for argument in the Supreme Court:
IT IS ORDERED THAT:
1. All claims by Claimants whose names appear on the Register in respect of causes of action that accrued prior to 4 June 1954 are absolutely statute barred, pursuant to the operation of the Limitation Act 1939, the Law Reform (Limitation of Actions etc) Act 1954, and the Limitation Acts 1963, 1975 and 1980 (as amended), save insofar as the causes of action arise from torts committed after 4 June 1954.
2. Depending on the Court's findings of fact, insofar as the causes of action arise from torts committed after 4 June 1954, recovery of damages in respect of the same is not absolutely statute-barred pursuant to the operation of the Limitation Act 1939, the Law Reform (Limitation of Actions etc) Act 1954, and the Limitation Acts 1963, 1975 and 1980 (as amended).
3. For the purposes of any application to appeal this order, time shall not commence to run until judgment in the Test Cases or further Order.
4. The costs of and occasioned by the preliminary...
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Kimathi and Others v The Foreign and Commonwealth Office
...seeking to vary an order dated 27 October 2016 in relation to the long-stop limitation date from 4 June 1954 to 4 June 1953: [2018] EWHC 686 (QB) (“the 1954 Judgment”). • On 18 April 2018 I gave Judgment on the Claimants' relief from sanctions application. This dealt only with TC20 and TC3......