The High Court (Stewart J) has refused to exercise its discretion under section 33 of the Limitation Act 1980 (LA 1980) to allow a test claimant (TC34) in group litigation to pursue a personal injury claim.

The litigation concerned alleged mistreatment and torture, by the colonial administration, of Kenyan nationals in Kenyan detention camps in the 1950s. TC34’s claim was the first to be considered under section 33 of the LA 1980: namely, whether it was equitable for the action to proceed after a delay of 56 years having regard to the degree of prejudice to either party.

The section 33 discretion had been exercised in the claimants’ favour in Mutua and others v Foreign and Commonwealth Office [2012] EWHC 2678 (QB), another Kenyan torture case, which held that delay of some 60 years was excusable. Importantly, the defendant admitted in Mutua that the claimants had suffered torture; in this litigation, it did not.

The defeating factor was TC34’s failure to expressly refer in his written and oral evidence to the reason for the delay. The Mutua claimants testified about their lack of education and language skills, their impecuniosity, and their lack of sophistication. TC34 asserted similar characteristics in his pleadings. Stewart J held that pleadings were not evidence and that he could not import findings from Mutua into this case. Although he made inferences in TC34’s favour as part of his assessment of “all the circumstances of the case”, he found no evidence of a good reason for delay after 1963.

This case illustrates that not every late claim for damages, however genuine, will pass the section 33 test. Evidence explaining the reason for the delay is vital. The judgment usefully summarises the approach to evidence and judicial treatment of witness memory (paragraphs 95 to 100). While the court expressed caution at applying the full rigour of Gestmin SGPS SA v Credit Suisse (UK) Ltd and another [2013] EWHC 3560 (Comm) and subsequent authorities to a claimant’s disadvantage, it noted clear problems with relying on uncorroborated, or largely uncorroborated, evidence of TC34 at such a remove of time. With the passing of time, it was impossible for the defendant to have any proper opportunity to find documentary or witness evidence relevant to the core allegations, and the delay was “very substantial”.

Case: Kimathi and others v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) (2 August 2018) (Stewart J).

Credits to: Practical Law