PROVING THINGS 227: IF YOU ARE GOING TO ALLEGE THAT LAWYERS WERE NEGLIGENT IN NOT CALLING EVIDENCE THEN YOU REALLY SHOULD REALLY HAVE THAT EVIDENCE TO HAND

The decision in Murithi & Ors v AVH Legal LLP (t/a Tandem Law) & Ors [2023] EWHC 1245 (KB)  has in some ways a profound irony. A case alleging negligence by lawyers for failing to call evidence itself failed  because of the absence of evidence.  Those making the allegations failed to adduce the evidence that the said the lawyers should have put before the court. (Presumably we can now look forward to the action against the claimants’ second set of lawyers – alleging that they failed to adduce evidence in the negligence action.)   The judgement, however, goes further than that – finding that even if evidence had been adduced which explained delay it would not have made a difference to the outcome.

“Mr Pooles’ first difficulty on this issue is that there still is no evidence of the sort Stewart J said was missing. Despite the fact that this is an action for damages for professional negligence which, on this topic, turns on establishing that the Defendants failed to adduce evidence which could have been produced, the Claimants’ advisers have adduced no evidence before me to demonstrate what their clients, (or even what TC34 or TC20 or any other Test Claimant), would have been able to say on the topic in the Kimathi litigation if only they had been asked.”

THE CASE

The defendants had represented 40,000 Kenyans in a test case relating to the “Kenyan Emergency”.  The initial case was looked at on this blog many times. It was essentially the longest ever application under Section 33 of the Limitation Act.  With 232 hearing days and more than sixty witnesses. 

The original action was dismissed, the judge declining to exercise the discretion under Section 33.

LETS SUE THE LAWYERS

An action was then started against the original lawyers (solicitors and counsel) who represented the claimants.   The defendants made an application to strike out and/or for summary judgment. The defendants’ applications were successful.

1. 1. With those principles in mind, I address the two issues raised by these applications in turn, considering both the summary judgment and strike out applications as they apply to both, but noting that there may be a degree of overlap between the two. It is convenient to consider the s33 evidence issue first.

1. 1. The essence of the case pleaded in the CPC is that the Defendants, individually and collectively, failed to ensure that there was put before Stewart J at trial evidence which met the requirements identified in paragraphs 43-44 of the CPC. It is said that properly prepared witness statements for the Test Claimants would have addressed the following eight topics:

(i) The length and reasons for the delay in commencing their claims;

(ii) The effect (of delay) on the cogency of the evidence;

(iii) The development in historical scholarship in the case of Rape and Castration Claimants;

(iv) Two decisions of the Supreme Court relevant to vicarious liability;

(v) The conduct of the FCO after the cause of action arose;

(vi) The extent to which the Test Claimants acted promptly and reasonably after they knew that the conduct of those for whom the FCO were responsible might give rise to a claim;

(vii) Steps taken to obtain expert advice;

(viii) The fact that Castration and Rape Claimants had strong cases.

1. 1. I can say immediately that there is, in my judgment, no merit in the latter seven assertions. In fact, little if any of Mr Pooles’ submissions were directed to any of these. As Mr McPherson correctly submitted, items (ii), (iii), (iv), (v) and (viii) could not properly, consistent with CPR 32.4, have been included in the Test Claimants’ witness statements at all because they are matters of submission, rather than evidence which could be given by a lay witness. Insofar as item (vi) is directed at matters other than the reasons for delay (which is the subject of item (i)) it was evident from the disclosed documents relied on at trial. Item (vii) was also demonstrated by the trial documentation. In any event, there is no evidence, as opposed to submission, now before the court as to what else any of the Test Claimants, including the Claimants in these proceedings, could say on any of these topics.

1. 1. Mr McPherson submitted in his skeleton that item (i) was also covered in the evidence but he was not able to show me where. To the contrary, as Mr Pooles contended, Stewart J repeatedly made clear in his judgments that there was precious little evidence, as opposed to submissions, on the reasons for the delay on the part of the Test Claimants, and in particular on the part of TC34 and TC20. So, for example, at [141-142] of the TC34 Judgment the Judge said:

“141…[A]part from TC34’s education and relative lack of sophistication and the admitted fact that Mau Mau was proscribed in Kenya until 2003, none of that evidence has been adduced in the present case. It must be recalled that in Mutua section 33 was dealt with as a preliminary issue. Here it is being dealt with after all the evidence has been presented.
142. It is not permissible for me to translate findings in Mutua to this case. I do not have any of the evidence that was in Mutua to support the findings. There has been no exploration of whether the proscription, viewed subjectively, was or would have been a factor or regarded as a risk, by TC34, or any Claimant who had assisted the Mau Mau during the Emergency, but who had had nothing to do with them since. Even looking at the terms of the proscription as recorded in Mutua [33], I do not know whether, objectively speaking, such a person would (or might) have fallen foul of the proscription.”

1. 1. He went on at [144] to address how TC34 first heard about the case. He said:

“[T]he advertisements and surrounding publicity leading to the GLO probably inform me as to why TC34 has now brought the claim. They do not inform me as to why TC34 did not before bring the claim. The problem with all these submissions is that there is just no evidence from TC34. Clearly there was evidence from the Claimants in Mutua. Why there is not in this case, I do not know. Reasons for delay are not self-proving. It is also unsatisfactory to be asked to draw inferences when Claimants have given written and oral evidence and have said nothing on the reasons for their delay. Indeed, drawing inferences in such circumstances, when the matter could, and on the authorities should, have been addressed, is something which should only be done if the inferences are compelling. It may be the case that the Claimants were in the position for which their lawyers contend, but in the absence of direct evidence it would be wrong to infer that all, or any, were. As the Defendant said, why should the court draw inferences when TC34 did not say what the reasons were and, therefore, his evidence was not tested?”

1. 1. He reached his conclusions on s33(3) delay at [157]:

“In TC34’s case, the length of the delay is up to 56 years. I am not able to find any reasons for the delay, there being no evidence as to such, save for during the period while TC34 remained in detention. It is not permissible to draw any further inferences. Apart from that period, I cannot put into the balance, when exercising my discretion, any good reason excusing the delay. The relevance of that period will have to be explored when I look at cogency of the evidence. I will, however, take into account TC34’s relative lack of education and sophistication when I carry out the section 33(1) balancing exercise.”

1. 1. Similar observations are to be found in the TC20 Judgment. At [274] Stewart J said:

“Reasons for delay are not self-proving. No express evidence was given by TC 20 about the reason(s) for the delay in her case. It is unsatisfactory to be asked to draw inferences when TC 20 gave written and oral evidence and did not address the matter. Any such reasons were not therefore in evidence so that they were available to be tested in cross-examination.”

1. 1. At [306] he said that “TC 20 has not proved in respect of any of her core allegations that her prejudice would outweigh that of the Defendant.”

1. 1. Certainly, it seems to me that there is a properly, if not strongly, arguable case that the Defendants did not adduce any, or any, adequate evidence in the Kimathi litigation to explain the length and reasons for the delay in the Test Claimants commencing their actions. However that only takes the Claimants, as respondents to the present applications, so far. There remain three further points of substance.

1. 1. In my judgment, Mr Pooles’ first difficulty on this issue is that there still is no evidence of the sort Stewart J said was missing. Despite the fact that this is an action for damages for professional negligence which, on this topic, turns on establishing that the Defendants failed to adduce evidence which could have been produced, the Claimants’ advisers have adduced no evidence before me to demonstrate what their clients, (or even what TC34 or TC20 or any other Test Claimant), would have been able to say on the topic in the Kimathi litigation if only they had been asked.

1. 1. Of course, on a summary judgment application, the court must take into account not only the evidence actually placed before it, but also the evidence that can reasonably be expected to be available at trial. But here, as Mr McPherson correctly points out, the Claimants do not even plead in the CPC (or their Replies) what they say could have been said by the Claimants (or any Test Claimant) if only they had been asked. On the pleaded case, there is complaint about what evidence was not adduced in the Kimathi proceedings but no averment at all as to precisely what could or would have been adduced, or what will be adduced in the present proceedings, on the issue. Furthermore, there was not even submission about the detail of what any of the Claimants in the present proceedings could say about the reasons for the delay in their commencing their claim in the Kimathi litigation. And, as Riley v Sivier and King v Stiefel establish, it is not enough to say, with Mr Micawber, that something may turn up. In fact, Mr Pooles did not even go that far; he made no submissions as to precisely what might be said by his clients on this topic.

1. His second difficulty goes to the issue of causation of loss, the Defendants contending that even if such evidence had been adduced, it is plain it would have made no difference to the outcome before Stewart J.

EVIDENCE AS TO DELAY WOULD HAVE MADE NO DIFFERENCE TO THE SECTION 33 DECISION

It was held, in any event, that the presence of evidence which explained the delay would not have made a difference to the outcome.  The Section 33 application would still have been refused.

1. 1. There is, in my judgment, no difficulty reconciling that remark with the Judge’s repeated references to the absence of evidence on the reasons for delay; the Judge was here expressly considering what would have been his attitude to the s33 issue if there had been no such absence. The Judge did not have the benefit of witness evidence on the issues but he was well able to consider, as he did, what would have been the position if the evidence supported a conclusion that the delay was excusable. No more powerful conclusion on reasons for delay could have been reached than that those reasons made the delay excusable and that was the conclusion the Judge assumed when he expressed himself as he did in [483]; (see the observations of Longmore LJ at [8] in his judgment for the Court of Appeal). Having reached that assumption on the reasons for the delay, he was then able properly to conduct the s33 balancing exercise taking account of the prejudice to the FCO occasioned by the delay.

1. 1. The third difficulty facing Mr Pooles in resisting the summary judgment application on the s33 evidence issue is that, even without [483], the Judge’s reasoning in the TC34 and TC20 Judgments was very clear. In my judgment, the result of its application to the facts as now advanced is beyond doubt. In essence, it was the Judge’s view that whatever the reasons for the delay, its effect on the FCO’s ability to defend itself was so profound that no fair trial was possible and that comfortably outweighed the prejudice to the Test Claimants in the Kimathi litigation.

1. 1. I do not suggest that the absence of a possibility of a fair trial is necessarily a complete answer when s33 is in issue. That was a matter of debate before me as it was, it appears, before Stewart J. The critical question under s33 is whether it would be equitable to allow the action to proceed. However, whether a fair trial could take place is a “very important question” (see Waller LJ in McDonnell v Walker [2009] EWCA Civ 1257) and if it cannot, it is “very unlikely to be equitable to allow the case to proceed” (see Lewison J in RE v GE [2015] EWCA Civ 287) (both cases discussed by Stewart J at [112] of the TC34 Judgment). If it were the case, for example, that a defendant’s own actions had been wholly responsible for a claimant’s inability to begin proceedings, then, despite the fact that a fair trial was no longer possible, it might well be equitable to allow the action to proceed. But that was not the case here. The high point of the Claimants’ argument on the reasons for the delay was the effect of the proscription of the Mau Mau; but although that had been commenced under the colonial administration it had been continued by the Kenyan Government after independence, an action for which the FCO were not responsible.

1. 1. There was a careful and detailed analysis in the two judgments of Stewart J of the prejudice suffered by the FCO as a result of the delay in commencing the Kimathi proceedings. The Judge considered witness availability, the availability of documentary evidence and the prejudice in proving prejudice. He held, at [463] in the TC34 Judgment, that:

“the strong probability is that the Defendant would have been in a very
substantially better position to defend the core allegations well into the mid-1960s. As time has passed, so the ability to defend has diminished, such that it is now essentially impossible for the Defendant to have any proper opportunity to find documentary or witness evidence with real relevance to the core allegations.”

1. 1. At [479] to [481] he concluded:

“479. The effect of the delay in issuing the claims on the cogency of TC34’s evidence and, in particular, on the evidence of the Defendant is very significant. The Defendant has had no fair opportunity to investigate the core allegations. There was probably some additional effect before the expiry of the limitation period. This can be taken into account. My decision would, however, be the same without this additional effect.
480. The Defendant’s ability to defend has been severely compromised by the delay. Had the claim been brought in time, or even at some stage during the mid-1960s, the evidence available to the Defendant, both documentary and witness, would have been much greater.
481. It is difficult, given the loss of witnesses and documents over time, to determine up to when there could have been a fair trial of some or all of TC34’s claims. Had the claim been brought in, say, the 1970s or even later, the evidential position then obtaining would have had to be examined in the sort of detail in which it has now been done. What is clear is that there cannot now be a fair trial of any of the core allegations. That is because of the delay.”

1. 1. In those circumstances, I accept the submission of Mr Lawrence (supported by Mr McPherson and Mr Hubble) that Stewart J was bound to have reached the same decision irrespective of whether the witness statements had contained the additional evidence which the Claimants allege they should have contained. In my judgment, it is not necessary to conduct a “mini-trial” to reach the conclusion that the Claimants had no realistic prospect of succeeding against the FCO, irrespective of the content of their witness statements on the issue of delay.

1. 1. That is sufficient to decide the first issue; in my view summary judgment should be given in respect of the allegations on the s33 evidence issue.

1. 1. It is not strictly necessary, in those circumstances, for me to determine the strike out application. But in deference to the quality of argument I heard on the topic I address it briefly.

1. 1. The Defendants invited me to treat this issue as equivalent to that raised in Greene v Davies referred to above. There the Court of Appeal held that, where a judge had said that certain correspondence would have made no difference to his decision, it would bring the administration of justice into disrepute to permit re-litigation of the question whether disclosure of that correspondence would have altered the judge’s decision. Here, the Defendants say it would bring the administration of justice into disrepute to permit the Claimants to re-litigate the question whether better evidence as to the reasons for delay in commencing proceedings when the judge in question had said that it would not.

1. 1. In my view, the two cases are not complete parallels. In Greene, the District Judge had explicitly rejected the suggestion that Mr Greene had been untruthful or deliberately misled him and was clear that the correspondence subsequently relied upon would not have affected his decision even if it had been before him. Newey LJ, (with whom Dame Victoria Sharpe PQBD and Thirlwell LJ agreed), held at [56] that when the District Judge said;

“in plain terms that the emails would have made no difference to him, right-thinking people would, as it seems to me, think it absurd for Mr Davies to invite the SDT to determine that the material would have changed what District Judge Stewart did”.

1. 1. Here, the issue is not whether on identical evidence Stewart J would have come to the same decision but whether, if evidence had in fact been adduced to the effect assumed for the sake of the argument by Stewart J, he would have come to the same conclusion. The test to be applied is whether the s33 claims would “bring the administration of justice into disrepute“. In my judgment, it is plain they would.

1. 1. Mr Pooles’ central argument is that if only the correct evidence on the s33 issue had been adduced by the present Defendants before Stewart J there is a substantial possibility that he would have found for the Test Claimants on limitation, or that the FCO would have bought off the risk of his doing so. But the former was precisely the issue Stewart J considered in [483]. Mr Pooles has to go further and, in my judgment, in doing so, and despite his protestations to the contrary, he mounts an attack on Stewart J’s approach and reasoning. He says, even if the issue addressed in [483] had been “live” before him, it would have been a statement which could not sustain analysis. It amounted, Mr Pooles argued, to the Court dismissing evidence which it had not heard and which, if called, it would have been under a duty to evaluate in the s33 balancing exercise. Since the evidence was not called before the Judge there is no basis on which he could properly find that it would not have altered his decision. But, that is an argument based not on a failure by the Defendants to adduce the necessary evidence; it is an argument that Stewart J was in error.

1. In my judgment, such an argument would plainly bring the administration of justice into disrepute. The right-thinking observer would regard it as absurd for the issue to be re-litigated in the light of Stewart J’s carefully considered observations on the central point. Accordingly, it falls to be struck out under CPR 3.4(2)(b).