APPEALING A SECTION 33 DECISION – IS HARD TO DO: KIMATHI IN THE COURT OF APPEAL

In refusing permission to appeal in Kimathi & Ors v Foreign & Commonwealth Office [2018] EWCA Civ 2213 the Court of Appeal emphasised the difficulty involved in appealing a discretionary decision made under Section 33 of the Limitation Act 1980.

“The applicant cannot get away from the fact that the judge had a discretion to exercise and that this court will not interfere with that exercise of discretion unless the judge has misdirected himself in law, taken into account irrelevant matters, failed to take account of relevant matters or has made a decision which has exceeded the generous ambit within which reasonable disagreement is possible,”

THE CASE

The case has been looked at many times on this blog. 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 gave judgment in one of the cases (“TC34”) and found that he would not exercise his discretion to make an order under Section 33 of the Limitation Act 1980.

THE APPLICATION FOR PERMISSION TO APPEAL

The claimant applied for permission to appeal.  This was heard as a matter of urgency because there are other judgments pending. The Court of Appeal heard oral arguments on the application for permission.

THE DECISION: APPLICATION FOR PERMISSION REFUSED

The Court of Appeal refused the application for permission to appeal.   Some of the reasons were very specific to the facts of this (very unusual) case.

(3)(a) Judge’s requirement for corroboration

1. 1. It is incorrect to say that the judge required corroboration or that he unduly limited what he was prepared to accept as cooroboration. The judge said no more than that in the absence of corroboration, the claim was less cogent than it might have been. That is no more than common sense. The real point is that since documents have been lost and potential witnesses cannot be traced, the evidence which would be adduced by either the claimant or the defendant was inevitably and seriously less cogent than if the claim had been brought in time.

(3)(b) Avoidance of scrutiny or investigations of abuse

1. 1. It is suggested that the judge made no findings on this question and that he therefore omitted a critical point in his assessment of prejudice. This was, however, always treated as a generic issue not for final decision in relation to TC 34. Paras 232 and 315(iii)(j) show that the judge was aware of the Jack investigation and criticisms made of it. Even if there was a reluctance to investigate all the claims that were being made, that has no relevance to the question of prejudice arising from the problem that an action has been brought so long after the events complained of.

(4) Lack of even-handedness and reliance on speculation

1. 1. This is unfair to the judge. Speculation was to some extent inevitable but there was no lack of even-handedness. The claimant gave evidence but called no evidence in support of the facts of his claim. The defendant did call a considerable amount of evidence in relation to, for example, the existence of documents, the dates when documents were destroyed (or likely to have been destroyed). A witness who gives evidence about the probability of documentary destruction in the course of weeding or archiving is not speculating but giving evidence as to what probably happened. Paragraphs 201-206 of the judgment furnish a good example of evidence put before the judge and which he assessed in coming to the conclusions already referred to in paras 213 and 459 of the judgment.

Conclusion

1. The applicant cannot get away from the fact that the judge had a discretion to exercise and that this court will not interfere with that exercise of discretion unless the judge has misdirected himself in law, taken into account irrelevant matters, failed to take account of relevant matters or has made a decision which has exceeded the generous ambit within which reasonable disagreement is possible, see principle 13 in Carroll. That cannot be said of the exercise of discretion in this case by Stewart J who has been trying the issues in this case since 23^rd May 2016. His judgment is a masterly synthesis of the complex web of facts, and absence of fact, and is a judgment with which this court would not interfere. In the event, the application for permission to appeal must be dismissed.

2. The court is aware that this will be a great disappointment to TC 34 and, no doubt, other claimants also. But if a judge, after a thorough and careful examination of the position, decides in his discretion that a fair trial cannot take place and if that decision cannot realistically be the subject of a full appeal, that decision must be accepted by all concerned. An unfair trial would be the worst of all possible worlds.