Kimathi & ors v Foreign & Commonwealth Office [2018] EWHC 1169 (QB) – Section 32 of the Limitation Act 1980

Neil Block QC and Jack Holborn successfully represented the Defendant in the High Court, which considered whether facts relevant to the Claimants' cause of action had been deliberately concealed so as to prevent time under the Limitation Act 1980 running.

The claimants allege assault, negligence, and damage to property that is said to have occurred during the State of Emergency in Kenya in the 1950s, and that the FCO is vicariously liable and/or is jointly liable for the relevant torts. They further alleged that the FCO had deliberately destroyed documents at the end of colonial rule to conceal facts relevant to the Claimants' causes of action, and that it had concealed further documents at Hanslope Park in Buckinghamshire until 2011. They claimed that until the Hanslope documents were disclosed in previous litigation, it had been impossible to assess the relevance of what had been destroyed. Accordingly, pursuant to s32(1)(b) of the Limitation Act 1980, time for bringing the action ran from 2011, meaning the claims, brought in 2013, were in time.

The Court found that the Limitation Act 1939 s.26 had governed postponement of limitation at the time of the events. The court had to determine whether the actions were, prior to the 1980 Act's entry into force in 1980, barred under s.26; if so, nothing in the 1980 Act would lift the bar. If the claims were not barred before 1980, s.32 would be applied. However, there was no difference between s.26 and s.32 material to the instant case.

The Court further found that "Any fact relevant to the plaintiff's right of action" under section 32(1)(b) was to be interpreted narrowly: new facts had to be relevant to the right of action and if a right of action was already complete, new facts were not relevant to it. The FCO had therefore not concealed relevant facts as the claimants could have pleaded prima facie cases on all alleged torts at the time they occurred or shortly after.

As to whether facts were "Deliberately concealed", the claimants had to prove on the balance of probabilities that some fact relevant to their right of action had been concealed from them with the intention of concealing that fact. The FCO had been under no obligation to disclose any of the documents. Nor was there evidence that any claimant would have considered taking proceedings before they had in fact done so. There was no evidence that examination of the Hanslope documents had revealed any fact that enabled them to plead any previously unavailable cause of action, and unconscionable behaviour had been proven in relation to the treatment of any document.

Further, the claimants had had knowledge, for the purposes of s.11 and s.14 of the Limitation Act 1980, regarding their personal injury claims at the time of the events. Accordingly, even if concealment had been proven, it was not concealment of any fact relevant to their right of action.

Finally, as a matter of fact, the Court found that it had not been shown on the balance of probabilities that documents had been destroyed, nor that there had been deliberate concealment of the Hanslope documents. In any event, the documents did not contain any fact relevant to the rights of action which had been allegedly concealed from the claimants. The documents were not facts within s.32 but evidence. The documents merely provided potential evidential support to that which was available elsewhere.

Judgment on the issue was given for the Defendant. The ruling canvassed the jurisprudence on s.32, reaffirming a number of principles and confirming the narrow circumstances in which s32 of the Limitation Act may affect limitation periods.

To read the full judgment, please click here.