Kimathi and Others v Foreign and Commonwealth Office

Hearing dates: 30 April, 1 and 2 May 2018

Judgment Approved

Introduction – The Issue Under Section 26 of the Limitation Act 1939 and Section 32 of the Limitation Act 1980

The Claimants in this Group Litigation case bring claims against the Defendant arising out of alleged atrocities and other abuses during the 1950s, commencing in October 1952 with the Declaration of the State of Emergency in Kenya.

The Defendant pleaded a defence of limitation. The Claimants' response to that defence was:

(a) No cause of action is time-barred because the Defendant is guilty of deliberate concealment under section 32(1)(b) of the Limitation Act 1980.

(b) Alternatively, in relation to personal injury actions, the Claimants rely upon the Court's discretion under section 33 of the Limitation Act 1980.

This judgment deals only with paragraph 2(a) above. Throughout the litigation the pleadings were based on section 32. However, on 21 March 2018 the Court expressed a concern about whether it was the Limitation Act 1939 and/or the 1980 Act which was applicable. This was then investigated by the parties and the position is as follows:

(1) Section 26 of the Limitation Act 1939 provided:

“ 26. Postponement of Limitation Period of Fraud or Mistake

Where, in the case of any action for which a period of limitation is prescribed by this act either…

(a) The action is based upon the fraud of the Defendant or his agent or any person through whom he claims or his agent, or

(b) The right of action is concealed by the fraud of any such person as aforesaid…

The period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it…”

(2) Section 7 of the Limitation Amendment Act 1980 substituted a new section 26 into the 1939 Act with effect from 1 August 1980. The new section 26 then became section 32 of the Limitation Act 1980 (with minor and irrelevant changes of wording). The Limitation Act 1980 was a consolidating statute. Section 32 is set out later in this judgment.

(3) The transitional provisions of the Limitation Amendment Act 1980 were contained in section 12 which stated:

“12. (1) Nothing in any provision of this Act shall

(a) enable any action to be brought which was barred by the principal Act before that provision comes into force.

…..

(2) Subject to subsection (1) above…, the provisions of this Act shall have effect in relation to causes of action accruing and things taking place before, as well as in relation to causes of action accruing and things taking place after, those provisions respectively come into force.”

(4) In the Limitation Act 1980, the transitional position was in Schedule 2 paragraph 9 in these terms:

“9. (1) Nothing in any provision of this Act shall

(a) enable any action to be brought which was barred by this Act or (as the case may be) by the Limitation Act 1939 before the relevant date…

(2) In sub-paragraph (1) above “the relevant date” means

(a)…

(b) in relation to any other provision of this Act, 1 August 1980 (being the date of coming into force of the remaining provisions of the Limitation Amendment Act 1980, apart from section 8).”

(5) All the causes of action in this litigation arose many years before 1 August 1980.

(6) There was a dispute between the parties as to whether section 26 has any relevance. The Claimants' submission was that the Court does not have to determine how it would have applied section 26 before 1 August 1980. The argument was that the 1980 Act was retrospective in application by schedule 2 paragraph 9, subject to any action having been barred by the 1939 Act prior to the 1980 Act coming into force 1. The Claimants say that the effect of section 26 was to stop time running: the action was not barred as at 1 August 1980, but from 1 August 1980 section 26 could no longer apply because the whole Act was repealed by schedule 4 of the 1980 Act. Therefore, the question the court has to determine is not the hypothetical one as to what would have been decided had the Court been asked to decide the issue prior to the 1980 Act.

I do not accept the Claimants' submission. Strictly, I have to decide, in accordance with section 26 of the 1939 Act, whether the conduct of the Defendant prior to 31 July 1974 for non-personal injury claims and 31 July 1977 for personal injury claims postponed the period of limitation beginning to run. If not, then these causes of action were barred prior to 31 August 1980 and the 1980 Act has no effect. In short, I accept the Defendant's submission that there are two stages:

(1) Stage 1 – determine whether the action is barred prior to 1 August 1980 under section 26 of the 1939 Act. If it was then there is nothing in the 1980 Act which is of relevance to lifting the bar 2.

(2) Stage 2 – if claims were not barred under the 1939 Act prior to 1 August 1980, then section 32 of the 1980 Act has to be applied so as to decide whether the claims are barred or not. In so doing the court must consider all matters whether arising before or after 1 August 1980.

The brief reasons why I reject the Claimants' submission are:

(1) The plain words of the statutory provisions. Under schedule 2 paragraph 9 I have to determine whether the action was already barred by the 1939 Act, before I consider anything under the 1980 Act.

(2) This is consistent with the way the House of Lords dealt with the matter in Arnold v CEGB3, where Lord Bridge recited paragraph 9(1) of schedule 2 to the 1980 Act and said that the critical question was whether “anything in the series of statutes dealing with limitation of actions leading up to the 1980

consolidation…has had the effect of removing retrospectively the bar to the widow's action which accrued… pursuant to section 21 of the Act of 1939.” 4

Fortunately, the parties agree that, for the purposes of the present case, there is no material difference between the test under section 26 of the 1939 Act and the test under section 32(1)(b) of the 1980 Act. Also that, in interpreting the 1939 Act, the Court is entitled to rely on decisions made in relation to the 1980 Act. The Court has been referred to authorities under the 1939 Act. I have not undertaken a detailed analysis of them but adopt the parties' consensual position. In support of this are the following materials:

(1) The 1977 Law Reform Committee 5 considered the existing law and noted that the wording of section 26 was not consistent with the authorities which had construed its meaning. The Committee recommended the changes in section 26 in order better to align the wording with the relevant interpretation of the courts 6.

(2) In Current Law Statutes Annotated 1980, in relation to section 32 it was stated:

“This section replaces s26, LA 1939…the opportunity has been taken to restructure the section to “restate the old law in modern language” as Lord Hailsham put it (H.L. vol.400, Col 1219), and to deal with one or two points of interpretation which had been disclosed by the Court in their efforts to construe the original section 26. Unless otherwise indicated it appears that cases decided on under that section will remain relevant in the construction of this provision…”

(3) In Cave v Robinson, Jarvis and Rolfe7 Lord Scott, whilst noting that the wording of section 26 was not the same as the wording of section 32, and in particular section 26 had no provision comparable to section 32(2), continued:

“40…Nonetheless it was generally believed that the broad effect of section 26 had been continued under section 32. Paragraph 31–19 of Clerk & Lindsell on Torts, 17th edition (1995), p1593 (18th edition (2000), p1723, para 33–25) said that section 32(2):

“preserves and confirms the case law on section 26 of the Limitation Act 1939…”” 8

(4) The current edition of Clerk & Lindsell on Torts (22 ^nd Edition, 2018, at paragraph 32–22 states:

“32–22…Section 32 of the Limitation Act 1980, is a re-draft of s.26 of the Limitation Act 1939, designed not to change the existing law, but to bring the statute more obviously into line with the interpretation which the courts had put upon it.”

(5) In Giles v Rhind9 Arden LJ, when considering the meaning of “Breach of Duty” in section 32(2) of the 1980 Act, said:

“ 43. S32(2) did not appear in s26 of the Limitation Act 1939 (as originally enacted), which was the statutory predecessor of s32(1). For present purposes there was no material difference between s26 and s32(1) …It is appropriate to refer to the report of the Law Reform Committee because it sets out the pre-existing law and the mischief to which the amendments to s26 were directed…” 10

(6) Finally, in the book by Mr McGee 11 it is stated at paragraph 20.015:

“The wording introduced by the 1980 Act appears to reflect the interpretation which the courts had put upon s.26 of the 1939 Act…”

In the circumstances, and for stylistic reasons, I shall refer in the majority of this judgment only to section 32 of the 1980 Act. Nevertheless, throughout I am aware of the two stage test I have set out above and I shall return to it in the conclusion to this judgment.

The Pleadings

The pleadings in relation to s32 (now further amended to incorporate reference to s26) are to be found in:-

• Paragraphs 46A–46C of the Re-Re-Re-Amended Generic Particulars of Claim (“RRRAGPC”).

• Paragraphs 93–96 of the...