Mr Dancan Murithi v AVH Legal LLP (t/a Tandem Law)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham,Garnham J |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1245 (KB) |
| Court | King's Bench Division |
| Docket Number | Case Nos: QB-2021-001160 QB-2021-002346; QB-2022-000592 |
[2023] EWHC 1245 (KB)
Mr Justice Garnham
Case Nos: QB-2021-001160
QB-2021-002007; QB-2021-002079
QB-2021-002346; QB-2022-000592
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Patrick Lawrence KC and Christopher Greenwood (instructed by Reynolds Porter Chamberlain LLP) for the First Defendant
Graeme McPherson KC (instructed by Clyde & Co LLP) for the Second Defendant
Ben Hubble KC (instructed by Womble Bond Dickinson (UK) LLP) for the Third to Ninth Defendants
Michael Pooles KC and Simon Howarth KC (instructed by Hugh James LLP) for the Claimants
Hearing dates: 30 March, 31 March and 4 April 2023
Approved Judgment
This Judgment was handed down remotely at 10.30am on 26 May 2023 by circulation to the parties and their representatives by e-mail and by release to the National Archives
By an Order dated 21 November 2018, Stewart J brought to an end claims for damages for personal injuries advanced by some 40,000 Kenyan citizens against the Foreign and Commonwealth Office (“the FCO”). Those claims arose out of events that occurred between 20 October 1952 and 12 January 1960 during what was known as the “Kenyan Emergency”. The first of those claimants was a man called Kimathi and I shall refer to those proceedings as “the Kimathi proceedings” or “the Kimathi litigation”. The first fourteen Claimants in the present proceedings were claimants in the Kimathi litigation.
By the present applications, the Defendants seek orders that:
(i) Summary judgment be awarded in the Defendants' favour in respect of the whole (alternatively parts) of each claim, pursuant to CPR Rule 24.2, on the grounds that the claims stand no real prospect of success, and there is no other compelling reason why the case should be disposed of at a trial; and / or
(ii) The whole (or parts of) the Claim Forms and the Consolidated Particulars of Claim be struck out pursuant to CPR Rules 3.4(2)(a) or (b), and judgment be entered for the Defendants pursuant to CPR PD3A, para 4.2, on the grounds that the Claim Forms and Particulars of Claim disclose no reasonable grounds for bringing the claims; and/or amount to an abuse of process, being a collateral attack on certain judgments and orders of Stewart J and the Court of Appeal in the Kimathi proceedings.
I heard arguments on this application over three days at the end of the Hilary term and reserved judgment. This is that judgment.
I had the benefit of detailed and careful written and oral submissions from Patrick Lawrence KC and Christopher Greenwood for the First Defendant; from Graeme McPherson KC for the Second Defendant; from Ben Hubble KC for the Third to Ninth Defendants and from Michael Pooles KC and Simon Howarth KC for the Claimants. I am grateful to all counsel, and those instructing them, for their assistance.
The History
The history of this matter is not significantly in dispute. It was conveniently summarised in the First Defendant's skeleton argument for these proceedings, from which much of the following is taken. The First Defendant's summary of the history was not the subject of challenge by Mr Pooles for the Claimants.
The Mutua Litigation
In 2009, proceedings were commenced against the FCO by five Kenyan citizens, represented by Leigh Day, solicitors, alleging that they had suffered assaults for which the FCO was liable (the ‘Mutua Litigation’).
In July 2011, McCombe J ordered that the issue arising under section 33 of the Limitation Act 1980 (“s33”) be tried as a preliminary issue in the Mutua Litigation. During the trial of that issue, in respect of three of the five claimants, the FCO made certain factual admissions, including that it “ did not dispute that he or she had suffered torture and other mistreatment at the hands of the Colonial Administration”.
On 5 October 2012, McCombe J ruled in favour of the three claimants in respect of whom the FCO had made those admissions, but ruled against the fourth claimant, in respect of whom no admissions had been made. The fifth claimant discontinued his claim. (See Mutua v The Foreign and Commonwealth Office [2012] EWHC 2678 (QB) at [15]).
The FCO thereafter entered into settlement agreements with those three claimants, and a number of other individuals who had not been claimants in the Mutua Litigation itself. The present claimants were not among those individuals whose claims were settled.
The Kimathi Litigation
The Kimathi proceedings were commenced by way of a claim form issued on 28 March 2013. As originally framed, 51 claimants advanced claims against the FCO. Thereafter, further individuals instructed AVH Legal LLP (“AVH”), the First Defendant in the present proceedings, and became claimants in the action. By 4 July 2014, AVH had over 20,000 clients who were claimants in the Kimathi proceedings. Other claimants who joined the Kimathi proceedings instructed separate law firms (known as ‘Non Lead Firms’ or ‘NLFs’). By 4 July 2014, the Non Lead Firms together also had more than 20,000 clients who were claimants in the Kimathi proceedings. The identity of some of the Non Lead Firms changed over time, and part-way through those proceedings, a number of claimants instructed a firm trading as ‘Hugh James’. Hugh James now represent the Claimants in the present proceedings.
On 4 November 2013, Master Whittaker made a Group Litigation Order (‘the GLO’), by which ( inter alia) AVH was appointed as the Lead Solicitor. Stewart J was subsequently appointed as the managing Judge for the Kimathi proceedings.
By an Order dated 14 March 2014, Stewart J ordered that:
“ 4. Database of Claimants
[AVH] shall by 4pm on 30 June 2014 serve on [the FCO] an electronic database, in an agreed format… in respect of 10% of Claimants randomly selected by a method to be agreed, by 30 May 2014, from the total Claimant cohort…
12. Selection of test cases
The Defendant and the Claimants shall:
(a) By 4pm on 31 July 2014, have selected, at random, 100 cases from the database of Claimants produced pursuant to paragraph 4 above for assessment as potential test cases, such cases to cover (in their totality rather than individually) the issues set out in Schedule 2 to this order;
(b) By 4pm on 31 October 2014, have agreed which 25 of the 100 randomly selected cases will be test cases for determination at trial, such cases to cover (in their totality rather than individually) the issues set out in Schedule 2 to this order.”
Schedule 2 to that Order comprised a 9-page list of issues in the Kimathi proceedings. The factual issues included, as Issue 5a: “ in respect of each [GLO] Claimant, [w] hat physical or psychiatric injuries did each specific incident of detention or mistreatment cause”.
By a further Order dated 23 May 2014, the process was amended, as follows:
“ Paragraph 12(b) of the order of 14 March 2014 shall be varied such that… the parties shall select a total of 40 of the 100 randomly selected cases as test cases on the understanding that it is envisaged that the court will try 25 test cases with 15 cases standing as reserve test cases”.
In order to select randomly 10% of the GLO Claimant cohort, AVH and the Treasury Solicitor (“TSol”), who then acted for the FCO, agreed a process comprising (i) allocating a number to each GLO Claimant; and then (ii) using a website known as the ‘Research Randomizer’ to generate a random selection of 4,221 numbers, being 10% of the size of the total cohort at the time. The GLO Claimant whose number was generated was thereby selected. The Research Randomizer website was then used again, randomly to select 100 GLO Claimants.
AVH and TSol then agreed a five step process to select 40 Test Claimants. Those 40 included one GLO Claimant, TC32, who alleged he had sustained a “castration” injury and five (TC1, TC3, TC7, TC29 and TC30) who alleged they had been raped. (The Claimants use the expression “castration” to cover both removal of the testes and damage to the testes).
Pursuant to the Order of 14 March 2014 and subsequent Orders:
(i) Generic Particulars of Claim were served on behalf of all GLO Claimants by 30 May 2014, and were subsequently amended on multiple occasions;
(ii) The Generic Particulars attached various Annexes. Annex 7 pleaded various types of injuries alleged by the GLO Claimants, including (a) rape; and (b) that some GLO Claimants had suffered ‘castration injuries’;
(iii) The FCO was to serve a Generic Defence by 31 October 2014. This too was subsequently amended on a number of occasions;
(iv) Individual Particulars of Claim and Schedules of Loss were subsequently served on behalf of each Test Claimant. In the large majority of instances, those statements of case were also amended (and sometimes re-amended);
(v) A Generic Reply was subsequently served on behalf of the GLO Claimants, and amended, and the FCO served a Generic Rejoinder;
(vi) Individual Part 18 Requests and Part 18 Responses were also exchanged.
In around April 2015, witness statements were served on behalf of those Test Claimants who had remained alive and had retained mental capacity. Subsequently, supplemental witness statements were provided.
Other witness statements were also filed in support of the claims, by way of corroborative evidence, including a...
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