Ndiku Mutua, Paulo Nzili, Wambugu Nyingi, Jane Muthoni Mara & Susan Ngondi v The Foreign and Commonwealth Office

Hearing dates: 7 th– 14 th April 2011

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.

(A) Introduction

This is an action for damages for personal injuries brought by five claimants in respect of alleged torts of assault and battery and negligence, for which it is said the defendant is liable as representing Her Majesty's government in the United Kingdom. The injuries in respect of which the claims are made are said to have been deliberately inflicted on the claimants while they were in detention in Kenya, in varying periods between 1954 and 1959, by officers and soldiers of the Kenya police force, the Home Guard and/or the Kenya Regiment. The particulars of the injuries alleged to have been inflicted speak of physical mistreatment of the most serious kind, including torture, rape, castration and severe beatings. It is not necessary to describe the mistreatment alleged in greater detail for present purposes. Suffice it to say that if the allegations are true (and no doubt has been cast upon them by any evidence before the court), the treatment of these claimants was utterly appalling.

I have before me, an application by the defendant under Parts 3 and 24 of the Civil Procedure Rules ("CPR") for orders striking out the claims and/or for summary judgment for the defendant against the claimants dismissing their claims. This is not the trial of the action 1. The principal issue before me is whether the claimants have a viable claim in law, and on the facts as presently known, against this defendant representing the UK Government. It is not denied by the defendant that, if the claimants' allegations are well founded, they would have had proper claims at the time against the perpetrators of the assaults and, most probably, also against the former Colonial Administration in Kenya on a vicarious liability basis. The issue is whether a claim can properly be brought now against Her Majesty's Government in the United Kingdom. There is also an application under CPR Part 17 by the claimants for permission to amend the Particulars of Claim.

Subject to the outcome of these present applications, there is also before me an application by the defendant for an order that the issue of limitation (under sections 11, 14 and 33 of the Limitation Act 1980) be tried as a preliminary issue. Clearly, at this length of time, issues of limitation will inevitably arise in the proceedings. However, at an early stage of the hearing, I expressed the view that it was logical that I should hear and determine first the applications under CPR Parts 3, 24 and 17, before proceeding (if then appropriate) to any questions of limitation. I took the view that the viability of the various legal formulations of the claims against the UK Government needed to be determined before one could know what issues of limitation might arise in relation to those claims. The parties did not seek to dissuade me from that view. No limitation issues were, therefore, argued before me.

(B) Procedural Principles to be applied

There is no dispute about the principles to be applied to the applications under our procedural law. The rules as to summary judgment under CPR Part 24 have been recently summarised by Simon J, and recited by the Court of Appeal as being uncontentious in

Attrill & ors v Dresdner Kleinwort & anor; Fahmi Anar & others v Same[2011] EWCA Civ 229:

"a. the Court must consider whether the Claimants have a 'realistic' as opposed to a 'fanciful' prospect of success: Swain v Hillman [2001] 1 All ER 91.

b. A realistic claim is one that is more than merely arguable: ED&F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8].

c. In reaching its conclusion the court must not conduct a mini-trial: Swain v Hillman.

d. This does not mean that a court must take at face value everything that a claimant says in statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED&F Man Liquid Products v Patel [2002] EWCA Civ at [10].

e. However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550.

f. Although a case may turn out at trial not to be really complicated it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on a summary judgment hearing. Thus the court should hesitate about making a final decision without a trial, even when there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical 100 Ltd[2007] FSR 3."

Adding to this Sir Andrew Morritt C said,

"To that summary I would add a reference to paragraph 107 of the speech of Lord Hope in Three Rivers DC v Bank of England No 3 [2003] 2 AC 1, 264 where he said:

"Conversely, I consider that if one part of the claim is to go to trial it would be unreasonable to divide the history up and strike out the other parts of it. A great deal of time and money has now been expended in the examination of the preliminary issues, and I think that this exercise must now be brought to an end. I would reject the Bank's application for summary judgment.""

The law relating to applications to strike out actions which are said to disclose no reasonable grounds for bringing the claim (CPR r. 3.4(2) (a)) is summarised in Civil Procedure 2011 Vol. 1 paragraph 3.4.1. page 70:

"Statements of case which are suitable for striking out on ground (a) includes those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides ( Harris v Bolt Burden [2000] L.T.L., February 2, 2000, CA). A claim or defence may be struck out as not being a valid claim or defence as a matter of law ( Price Meats Ltd v Barclays Bank Plc [2000] 2 All E.R. (Comm) 346, Ch D). However, it is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact ( Farah v British Airways, The Times, January 26, 2000, CA referring to Barrett v Enfield BC [1989] 3 W.L.R. 83, HL; [1999] 3 All E.R. 193). A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence ( Bridgeman v McAlpine-Brown January 19, 2000, unrep., CA). An application to strike out should not be granted unless the court is certain that the claim is bound to fail ( Hughes v Colin Richards & Co[2004] EWCA Civ 266; [2004] P.N.L.R. 35, CA (relevant area of law subject to some uncertainty and developing, and it was highly desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts))."

Finally, the rule relating to applications to amend is that permission to amend will not be given to raise a claim that is not maintainable in established law: Op. Cit. paragraph 17.3.6 page 488.

It is common ground that I should assess the viability of the claimants' case, in so far as it turns upon matters of pleading, on the basis of their proposed amended Particulars of Claim in the form appearing in section 9 of Bundle A before me.

(C) The Background to the Claims in Outline

The events with which the case is concerned arise out of the Mau Mau rebellion in Kenya in the 1950s which led to the proclamation of a state of Emergency by the Governor of Kenya, Sir Evelyn Baring, on 20 October 1952. The proclamation was issued under section 3 of the Emergency Powers Order-in-Council 1939. That Order had itself been made in exercise of powers conferred by Acts of the United Kingdom Parliament, namely the British Settlements Act 1887 and the Foreign Jurisdiction Act 1890. Political authorisation for the proclamation had been given by resolution of the UK Cabinet of 14 October 1952.

As a part of the process of proclaiming the Emergency, the Governor promulgated the Emergency Regulations 1952, pursuant to powers conferred by the 1939 Order. Those regulations contained wide powers of arrest and detention of suspected persons. From about March 1953 detention camps were constructed to accommodate the large numbers of persons detained under the Emergency powers. That state of Emergency continued until 12 January 1960. It was under the regime constituted by the proclamation of the Emergency that the torts alleged by the claimants were committed.

The "facts" of the case fall to be considered on four levels: (i) the constitutional structure; (ii) the...