Permission to Appeal refused in Kenya Emergency Group Litigation

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.

Asbestos Exposure and Choice of Law – Docherty Revisited

This blog post is by James Beeton of 12 King’s Bench Walk.

In May we considered the decision of the Outer House of Scotland’s Court of Session in Docherty v Secretary of State for Business, Innovation and Skills [2018] CSOH 25 in this blog post. The question for the court to consider may be summarised as follows:

‘Where an individual, while working in Scotland, inhales asbestos fibres that cause him injury after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death?’

In the Outer House, Lord Tyre had held that the case fell outside the temporal scope of Rome II and the Private International Law (Miscellaneous Provisions) Act 1995. The result was that the applicable law depended on the locus delicti (i.e. the place of the wrong) pursuant to the common law. Lord Tyre considered that the locus delicti was the place where the injury developed and not where the negligent act or omission occurred. This meant that English law applied to the claims for damages (with significant consequences for some of the claimants, as discussed in the previous blog).

That decision has now been overturned by the Inner House on appeal ([2018] CSIH 57). The locus delicti is the place of exposure to asbestos – not the place where the eventual injury develops. Continue reading Asbestos Exposure and Choice of Law – Docherty Revisited

Montreal Convention Claims: Fixed Costs Do Not Apply

Two recent County Court decisions (Mead v British Airways Plc (Unreported) Manchester County Court, 15 January 2018 and McKendry v British Airways Plc (Unreported) Liverpool County Court, 7 June 2018) have come to identical conclusions that personal injury claims under the Montreal Convention do not engage the EL/PL Pre-action Protocol. The result is that these claims were deemed to fall outside the fixed costs provisions of CPR Part 45.

In summary, DJ Moss and DJ Baldwin (the latter sitting as a Regional Costs Judge) considered that Convention claims were ‘sui generis’ such that they did not arise out of ‘a breach of a statutory or common law duty of care’ for the purposes of the Protocol threshold criteria in para. 1.1(18).

DJ Baldwin also noted that the new Package Travel Protocol (considered in detail here) specifically excluded Athens and Montreal Convention claims, which supported the proposition that such claims were properly excluded from the low value fixed costs regime.

Copies of the judgments can be found on Gordon Exall’s Civil Litigation Brief blog.

First Judgment on the Merits in the Kenya Emergency Group Litigation (TC34)

An interesting aspect of Kimathi and Others v Foreign & Commonwealth Office [2018] EWHC 2066 (QB) is how thoroughly it confirms that the past is a foreign country. Britain’s past comprises many foreign countries, once part of its Empire. The Kimathi litigation (also known as the ‘Mau Mau litigation’, after the Mau Mau rebellion that was instrumental in Kenya’s independence movement) has come probably at the only time it could come in these postcolonial days, but it has come too late to be suitable for the forensic process that is civil litigation.

Members of 12 King’s Bench Walk’s International & Travel team have been instructed at various points throughout the course of this litigation by the Claimants, the FCO, and Intervening Parties. This post considers the implications of Stewart J’s first judgment on the merits and assesses the suitability of the civil litigation process for determination of the issues raised. Continue reading First Judgment on the Merits in the Kenya Emergency Group Litigation (TC34)

Committeri v Club Mediterranée SA and Anor [2018] EWCA Civ 1889 – Package Travel, Rome I and II

In this blog, James Beeton of 12 King’s Bench Walk considers the decision in Committeri v Club Mediterranée SA [2018] EWCA Civ 1889, which was handed down yesterday. The case involved an appeal against the decision of Dingemans J ([2016] EWHC 1510 (QB) – considered in an earlier blog post here).

It provides guidance on (i) the characterisation of claims as contractual or non-contractual for the purposes of Rome I and Rome II and (ii) the circumstances in which it is acceptable to challenge the agreed evidence of foreign law experts. Continue reading Committeri v Club Mediterranée SA and Anor [2018] EWCA Civ 1889 – Package Travel, Rome I and II

The Norwegian Jade – Athens Convention, “Carriage”

In this blog, David Green of 12 King’s Bench Walk considers the recently-reported application for permission to hearing of Lawrence v NCL (Bahamas) Ltd, the Norwegian Jade [2017] EWCA Civ 2222. The case deals with a novel point of construction of the Athens Convention 1974, concerning the liability of a sea carrier for injuries sustained when their passenger is in a tender vessel being taken from ship to shore. Continue reading The Norwegian Jade – Athens Convention, “Carriage”

Brexit and the Government White Paper: Are the Civil Judicial Cooperation plans Realistic?

In this blog, which follows on from Philip Mead’s recent post explaining the legal implications the Government’s recent White Paper (Cm 9593), Patrick Vincent suggests that the Lugano Convention has been wrongly worded and wrongly translated – but that even if corrected it will not help the UK achieve post-Brexit civil judicial cooperation with the EU. Continue reading Brexit and the Government White Paper: Are the Civil Judicial Cooperation plans Realistic?