Kimathi & Others v The Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 27 April 2017 |
| Neutral Citation | [2017] EWHC 938 (QB) |
| Date | 27 April 2017 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X02162 |
[2017] EWHC 938 (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
Neil Block QC, Niazi Fetto & Stephen Kosmin (instructed by Government Legal Department) for the Defendant
Hearing date: 06 April 2017
Judgment Approved
The Application Notice
On 9 March 2017 the Claimants issued an application seeking an order granting permission to amend the Generic Particulars of Claim (GPOC) and the Individual Particulars of Claim (IPOC) in this case. In support of the application is a witness statement from Steven Martin, dated 9 March 2017 (Mr Martin's eighth witness statement) and another statement from Mr Martin dated 22 March 2017 (Mr Martin's ninth witness statement). The Defendant relies on a witness statement from Alice Ka Ki Lam dated 30 March 2017. Test Claimants will be referred to as "TC". This judgment does not deal with some amendments which are uncontroversial and will therefore be permitted.
Outline Chronology of the Litigation
A Group Litigation Order ("GLO") was made on 4 November 2013. By paragraph 6, Tandem Law were appointed the Lead Solicitors for the Claimants.
In May 2014 the GPOC were served. In October 2014 the Generic Defence was served. In November/December 2014 the IPOCs were served. The major CMCs before me were on 12/13 March 2014, 10/11 December 2014, 18/19 March 2015 and 2/3 March 2016. Other notable dates were:
10.12.2014 Amended Generic Defence.
18.12.2015 First 10 Individual Defences served.
February 2016 Remaining Individual Defences served.
March 2016 Amended IPOCs, Amended Generic Reply and Individual Replies served.
The trial commenced in May 2016. During June and July 2016 the evidence from 24 then living Test Claimants was heard. 1 Various applications were dealt with in July/August and September 2016. October 2016 was set aside for (a) preparation for the remainder of the trial and (b) preparation of (other) preliminary issues to be heard in the weeks commencing 7 November 2016 and 14 November 2016. Thereafter the Claimants began to open their case based on the enormous amount of documentation. This was not completed by the end of the Michaelmas term. The Hilary term has been spent hearing expert medical witnesses and lay witnesses from both parties, hearing further applications and completing the Claimants' opening. There has already been a not insubstantial amount of chopping and changing in this very complex litigation, due to the substantial overrunning of that opening and to try to accommodate the needs of witnesses.
Trinity term is scheduled to be spent hearing a number of the Defendant's witnesses and the Defendant's opening case on the relevant documents. It is not expected that the final submissions will finish before spring 2018, after which there will be a substantial period required for writing the judgment.
Legal Outline
CPR Rule 17.1 provides:
"(2) If his statement of case has been served, a party may amend it only –
(a) with the written consent of all the other parties; or
(b) with the permission of the court."
In Quah Su-Ling v Goldman Sachs International2 Mrs Justice Carr reviewed the authorities on determining late applications for permission to amend. I am not the first judge to be grateful to her for having done this. I repeat paragraph 38 of her judgment:
"a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to
the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;b) where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;
c) a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;
d) lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;
e) gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;
f) it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;
g) a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so."
The Claimants submitted in their skeleton argument that the application to amend was not "late" within the meaning of Su-Ling. They relied upon paragraph 18 of the judgment of Mann J in the Various Claimants case, 3 where, referring to Su-Ling, he
said, "In that context a 'late' application is one made at a time when it would force the abandonment of the trial date if granted." In my judgment the principles in Su-Ling apply. Principle (c) has to be modified to take account of the fact that a very late amendment in the present context is one made during the trial, particularly if it will/may well cause disruption to the trial timetable. Principle (d) is important in considering "lateness".False Imprisonment
In Mr Martin's eighth witness statement he says as follows:
"15. The Claimants had previously pleaded false imprisonment and that allegation was removed based upon the re-amended Generic Particulars of Claim dated 22 March 2016. 4
…
19. As regards to the reinstatement of the claim for false imprisonment, the litigation has developed further and the Defendant now seeks to rely upon and plead regulations and legislation and has issued an application accordingly on 8 March 2017.
20. In the circumstances therefore, this tort was previously pleaded and the Defendant has therefore previously considered those matters. The Claimants alternatively base their claims for detention on the assault and battery suffered, therefore the claim is not new. Any prejudice to the Defendant is therefore limited.
21. The Claimants contend that with the development of the litigation, proportionality has tipped the other way and the Court should now have the opportunity to assess the issues square on, particularly as the Defendants now wish to say that the detention of the Claimants was lawful."
The reference to the Defendant seeking to rely upon and plead regulations and legislation needs a brief explanation. On 9 February 2017 I handed down judgment in relation to a preliminary issue. This concerned the burden of proof in relation to identifying the Emergency Legislation potentially applicable to conduct alleged by the Claimants to have been unlawful, and by the Defendant to be rendered lawful pursuant to that Emergency Legislation; secondly proving that that conduct fell outside or within the terms of the Emergency Legislation. 5 I made rulings in respect of the torts of assault, battery and negligence, and also on joint liability, vicarious liability and knowledge. The answers to the preliminary issues are to be found in paragraphs 35–37 of the judgment.
Subsequent to that ruling the Defendant applied for permission to amend its generic and individual defences. Subject to the right to raise Part 18 Questions, this was not opposed by the Claimants.
The Claimants' case on false imprisonment is:
12.1 There is evidence of this in the cases of Test Claimants who were villagised and those who were detained without trial. The Claimants accept that their claim for false imprisonment is not a claim involving personal injury. The only way the Claimants can succeed in relation to limitation is if their reliance upon section 32 of the Limitation Act 1980 is upheld in due course.
12.2 The draft Re-Re-Amended GPOC seeks to add the following:
(i) At paragraph 8(3) a claim for detention/false imprisonment.
(ii) Paragraph 13A – a claim that the Claimants will claim for false imprisonment in camps and villages; in particular:
a. they could not leave of their own free will;
b. they were detained in camps and villages without lawful authority.
(iii) A referral back to paragraph 13A in paragraph 31.
12.3 There is reference to false imprisonment in the existing claim for trespass to the person. For example in paragraph 8(1)(b) of the GPOC the allegation is made that...
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