THE KIMATHI DECISION 1: PLEADINGS ARE NOT EVIDENCE

The judgment in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB)  came after a trial that commenced in May 2016 and lasted until June 2018. It contained a whole range of issues in relation to procedure and evidence. It is a judgment of 484 paragraphs.  I will look at some aspects of the decision in detail.  Here we look at the judgment in relation to CPR 32.6.

 

“the contents of a statement of case are not evidence in a trial, even though verified by a statement of truth”

THE CASE

The action concerns a large number of claims brought for assault, battery and negligence relating to detention in Kenya in the 1950s. There are over 40,000 claimants. There are 25 test claimants.   Mr Justice Stewart was deciding one of the test cases (“TC34”) and the issue of whether the court should exercise its discretion under Section 33 of the Limitation Act 1980.  This was decided as part of the trial process and not as a preliminary issue.

THE JUDGMENT ON CPR 32.2: WHEN THERE IS A TRIAL STATEMENTS OF CASE ARE NOT EVIDENCE

The judge considered the question of the status of the pleadings in this case where the Section 33 issue was being considered at trial.

“Pleadings and evidence: proof
    1. The first matter of principle is that the contents of a statement of case are not evidence in a trial, even though verified by a statement of truth. This is the effect of CPR rule 32.2 and CPR rule 32.6. In Arena Property Services Limited v Europa 2000 Limited[21] Arden LJ said at [18]:
“Mr Banning submits that there was an allegation of an easement in the Pt 20 claim, which was verified by a statement of truth. This does not assist since an allegation so verified is not evidence for the purposes of the trial (see CPR 32.6(2)).”[22]
    1. The position is that contained in CPR rule 32.2 namely:
“32.2 – (1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –

(a) at trial, by their oral evidence given in public;

(2) This is subject –

(a) To any provision to the contrary contained in these rules or elsewhere; or

(b) To any order of the court.”

  1. Clearly, if a Claimant or witness adopts in his or her oral evidence the whole or any part of a pleading (e.g. Part 18 responses) then they are evidence in the trial. Otherwise, the evidence from a Claimant is only that contained in his or her witness statement verified in oral evidence, together with such oral evidence as the Claimant/witness gave on oath/affirmation. I do not accept the Claimants’ submissions. First, they say that refusing to consider as evidence at trial matters verified in a statement of case elevates a general rule into a statute. It does not. It is the clear effect of a procedural rule, made under Statutory Instrument, as to how facts are to be proved. Secondly, they say that in the above authorities, there was nothing from the parties that assisted their case and the issue was whether evidence existed, not how statements were to be classified, adding: “Here the facts exist. D’s complaint is that because they are in the wrong place, they should be categorised as something other than facts”. This is not the point. Rule 32.6 is clear that “any fact…is to be proved….at trial by their oral evidence given in public” (my underlining). That is why witnesses specifically adopt statements in their oral evidence, thus proving them for purposes of the trial. If facts have been proved as required by Rule 32.6, then there is no need to attempt to rely on Statements of Case; if they have not been so proved, then, at trial, the Statements of Case (unless adopted in oral evidence) do not prove those facts.”

 

THE PRACTICAL SIGNIFICANCE OF THIS: THE CLAIMANTS’ PLEADED CASE

The Reply served by the Claimants relied on numerous matters to explain and/or justify the delay.

    1. Absent any evidence from TC34 to explain the reasons for his delay, the Claimants sought to rely on reasons pleaded in paragraph 53 of the Reply[93]. The pleading says:
“…Specifically as to the Section 33 discretion under the Limitation Act 1980, this particular Claimant relies on the following in addition:

(a) He is a victim of trauma and is thereby vulnerable;

(b) The Claimant could reasonably only be said to be aware of a possible claim of merit against the Defendant after the claim was advertised by Order of the Court and aired on Kenyan Radio in November 2013;

(c) The Claimant is impecunious and was unable to pay for the legal advice in Kenya;

(d) He is unsophisticated and from a rural area and would not have the means to approach lawyers in England;

(e) He could not reasonably be expected to believe that he could bring a claim against the British government, or that he would be compensated;

(f) It was illegal to be a part of or speak of Mau Mau in Kenya before 2003 and the Claimant would have faced possible legal consequences or retribution had he attempted to raise his complaints; and

(g) Had he attempted to do so, he would have faced insuperable difficulties and would have been at such a disadvantage vis a vis the Defendant as to prevent him being in a realistic position to bring a claim. The Claimant will rely upon the Defendant’s conduct of this litigation in support of this pleading.”

  1. The Claimants argued that, even if the Reply is not evidence, it is “there” and I should take it into account. I do not know how I can take into account something which does not constitute evidence. 

THE ABSENCE OF AN EXPLANATION FROM THE CLAIMANT

The difficulty was that the claimant’s evidence did not deal with the reason for the delay.

The length of and reasons for the delay
  1. The length of the delay under section 33(3)(a) is delay since the expiry of the limitation period. The dates are somewhat fluid in TC34’s claims. The expiry of the Ngong Forest claim limitation period was probably not later than sometime in early 1958, and the expiry of the Hola open camp claim limitation period probably not later than sometime in 1963. The expiry in the other claims will have been between these dates. TC34 became a party to the proceedings in May 2014. Therefore, the length of the delay covering all claims is probably somewhere between 51 and 56 years.
  2. The authorities also establish that the Court may have regard to disappearance of evidence and the loss of cogency of evidence from the time at which section 14(2) was satisfied until the claim was first notified. They are not strictly relevant under section 33(3)(a), but rather under section 33(1).
  3. The length of the delay is important, not so much for itself as to the effect it has had.
  4. Turning to the reasons for the delay, these are clearly relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction. The latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant’s ability to defend the claim.
  5. Reasons for delay are not self-proving. No express evidence was given by TC34 about the reason(s) for the delay in his case. It is unsatisfactory to be asked to draw inferences when TC34 gave written and oral evidence and did not address the matter. Any such reasons were not therefore tested in cross-examination.
  6. I am prepared, however, to infer that while TC34 was in detention, which would be until about 1963, he had little or no access to legal advice about the possibility of making a claim. If I am not entitled to take this into account under section 33(3)(a), I do so as part of all the circumstances of the case. I also take into account as part of all the circumstances of the case the fact that TC34 has little education and is relatively unsophisticated. These factors I put into the balance when considering whether it is equitable to allow the action to proceed. However, there is no evidence of a good reason for delay after 1963.

NOTE THE DIFFERENCE WHEN THERE IS NOT A TRIAL

Many (if not most) Section 33 applications are heard at an interlocutory stage and not at trial. Here the rules are different. CPR 32.6 provides:-

“1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.

(2) At hearings other than the trial, a party may, rely on the matters set out in –

(a) his statement of case; or

(b) his application notice, if the statement of case or application notice is verified by a statement of truth.”