On Tuesday the Court of Appeal refused permission to appeal the decision of Stewart J in the first judgment on the merits in the Kenya Emergency Group Litigation (Kimathi and Others v Foreign & Commonwealth Office [2018] EWHC 2066 (QB)). We wrote about the earlier decision here.

The permission to appeal decision is available on BAILII under the heading Kimathi and Others v Foreign & Commonwealth Office [2018] EWCA Civ 2213. In summary:

  • The judge had concluded that there was no good reason for the delay in bringing the action. But he went on to find that, even if there had been a good reason, on balance the case still could not be fairly tried. His conclusion in that respect could not be impugned [9].
  • There was no need for the judge to identify a specific date by which the action should have been brought in order to deal with prejudice to the defendant. What was crucial was to ‘consider the position as it is now’ [14].
  • The judge was justified in finding that the loss of documents and potential witnesses over time inevitably and seriously affected the cogency of the evidence available [16].
  • The fact that the claim was brought against a background of allegations of abuse requiring scrutiny or investigation did not affect the core issue of prejudice [17].
  • A final allegation that the judge had not been even-handed was simply unjustified [18].

Ultimately, the court determined that the claimant ‘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 decision provides a harsh reminder of the difficulty of appealing exercises of a judge’s discretion under s. 33 Limitation Act 1980. The potentially significant implications of this decision for the viability of the remainder of the thousands of claims in the Kenya Emergency Group Litigation remain to be seen.

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