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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Kimathi & Ors v Foreign and Commonwealth Office [2015] EWHC 3432 (QB) (26 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/3432.html Cite as: [2015] EWHC 3432 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/11/2015

Mr Justice Stewart:

Preliminary

1. These are the reasons for my rulings in respect of the Defendant's application notices dated 18 June 2015 and 6 August 2015. The Defendant asks the Court to exclude:

(i) Witness statements by historians.

(ii) Witness statements by Claimants on the Group Register described as "corroborative" witness statements.

(iii) Hearsay statements which fall into two categories, namely:

(a) 25 extracts from an historian's book.

(b) Statements by deceased Claimants on the Group Register, these statements also being described as "corroborative".

2. Further, the Defendant seeks permission to cross-examine the makers of hearsay statements who are or may be alive today.
3. The witness evidence before me is as follows:

(i) Witness statements of Samantha Howard on behalf of the Defendant. These statements are dated 6 August 2015 and 16 October 2015.

(ii) A witness statement of Mr Frederick Cosgrove-Gibson dated 18 September 2015 on behalf of the Claimants.

The Historians

4. The Historians' statements which the Defendant seeks to exclude from evidence are from:

(i) Professor Caroline Elkins, dated 20 February 2011, 1 April 2011 and 25 May 2012.

(ii) Professor David Anderson, dated 23 December 2010, 1 April 2011 and 18 June 2011.

(iii) Dr Huw Bennett, dated 21 February 2011, 25 May 2012 and 11 July 2012 (plus an unsigned and undated statement).

5. The Historians' statements were prepared for the Mutua litigation. This was the previous claim brought by five Claimants against the FCO based on allegations of very serious physical mistreatment in Kenya between 1954 and 1959. The Mutua case resulted in two reported judgments of McCombe J (as he then was). These are to be found at [2011] EWHC 1913 (QB) and [2012] EWHC 2678 (QB). There had also been previous unreported judgments of Tugendhat J (18 October 2010) and Langstaff J (13 December 2010).
6. The first rule to consider is CPR 32.12. So far as material it provides:

"(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.

(2) Paragraph (1) does not apply if and to the extent that–

…….

(c) the witness statement has been put in evidence at a hearing held in public."

7. The statements were provided for the Mutua litigation. Therefore, so far as CPR 32.12 is concerned the only issue is whether they were "Put in evidence at a hearing held in public." This is disputed.
8. In summary the Defendant says that at the strike out hearing in 2011 the status and admissibility of the Historians' statements in the Mutua case had not been determined: see paragraph 36 of the 2011 decision. In particular McCombe J said:

"I am anxious at this stage to avoid any formal determination of the proper role for expert historians at any trial of this action. That issue has not been argued before me and seems to me to be a matter for later."

9. By the date of the 2012 limitation hearing in Mutua further statements from historians had been served and there had been no application that their evidence be admitted as experts. At paragraph 49 McCombe J said:

"As I observed in paragraph 36 of the previous judgment, it would be for the Court at the trial of the action to draw its own conclusion from the documents and other evidence presented. Equally, whilst the precise status of the Historians' statements as evidence in the case as a whole and at trial has yet to be decided, it was agreed between the parties at a directions hearing before me on 29 May 2012 that those statements should be treated for present purposes as "akin to published academic articles by learned authors": see paragraph 6 of the order made that day."

10. I accept from this and from the explanation given by Mr Mansfield QC as to the background to the hearings before McCombe J (not disputed by the Claimants), that the statements were not accepted by the Court in Mutua as admissible evidence of fact at final trial. However I do not accept the Defendant's submission that CPR 32.12(2)(c) has not been complied with. They were witness statements and they were put in evidence at the 2012 hearing which was held in public. That is all the rule requires. It does not require that the statements have the status of witness evidence for the purposes of any final trial. All that Rule 32.12(2) does is remove the prohibition on using statements made in previous proceedings. It does not make the statements admissible if they otherwise would not be.
11. A second objection was taken by the Defendant on the basis of CPR 32.8 which required "A witness statement must comply with the requirements set out in Practice Direction 32." Paragraph 17 of 32 PD is relied upon, namely that the witness statements should be headed with the title of the proceedings. It is said that this is not mere form since the makers have not adopted them and signed statements of truth in these proceedings. I do not uphold this objection. In my judgment this is a matter of form. The statements are being put in expressly under CPR32.12(1) and (2)(c), namely as witness statements put in evidence at a hearing in other proceedings. That is why the makers have not adopted them and signed statements of truth in these proceedings. As to the witness statements being headed with the title of the present proceedings, this is a matter of form and can (if the evidence is to be admitted) be dealt with by requirement on the Claimants' solicitors to do so within a very short period of time.
12. Next there is CPR 32.4 which provides: "(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally."
13. I am told that there were 10 witness statements from 3 historians together with a large volume of exhibits (12 lever arch files). I have not seen the statements because the Defendant objected to my reading them. It was said that it would be as damaging if I read them as if the Court read the books which the authors have written. This was an unusual position for a Court to be in. Normally either (a) the issues are such that the parties would have confidence that a judge would, if he ruled evidence inadmissible, be able to put the evidence out of his mind or (b) if there was no such confidence, then the application should be dealt with by another judge. The Defendant said that the copies of the indices to the documentary exhibits to the historians' statements demonstrate the documents referred to in the historians' evidence and which the historians analyse and comment upon as to their effect and the inferences to which they give rise. This, in conjunction with a description of the statements in the judgments of the judges in the Mutua litigation is, it was said, sufficient for me to understand and adjudicate fairly upon the objections to admissibility. The Court considered itself to be in a difficult position. The Claimants' stance was that the statements need to be read but since it was the Defendant's application to exclude, they met the case as presented. The problem with this is that I was being asked to determine whether the statements contained relevant admissible evidence. Having raised this matter it was accepted as fair to both sides that the Claimants could refer me to passages in the statements which they say demonstrated why the evidence was admissible. This they did.
14. There has been much correspondence about the nature and purpose of the historians' evidence. In particular what the Defendant has sought is the relevance of the evidence and whether the evidence is said to be opinion evidence or evidence as to fact. It is fair to say that there has been some confusion in the statements made previously in these proceedings by Counsel on behalf of the Claimants. However, rather than deal with what has or has not been said in the past, I seek to focus on how the Claimants put the case now.
15. The Claimants set out in correspondence and in their submissions that they said they rely on the historians as witnesses of fact. So for example in the letter of 31 July 2015, Tandem Law said:

"To assist you, and for the avoidance of doubt, the Claimants' position is that the facts stated in the historians' statements (including those describing circumstances in Kenya during the Emergency, events that occurred prior to and during the period of Emergency, and responsibility for those circumstances and events) provides (a) evidence of the context in which the claimants were mistreated, and (b) material from which the court is entitled to reach conclusions and/or draw inferences concerning:

- the role, and knowledge of the British Government

- the role, and knowledge of the British Army, and

- responsibility for the mistreatment of Claimants.

Furthermore, the Claimants contend that the evidence of the historians is relevant to explain the available documentation, to place it in context, and to identify the documentation that ought to be available but is not."

16. In conjunction with this is the extract from the judgment of Langstaff J [2010] EWHC 3609 (QB) at paragraph 10:

"Tugendhat J dealt with the position of evidence which the Claimant wished to call. That was the evidence of Professor Elkins. She had written one of the seminal texts in 2005. He accepted that her evidence was relevant in identifying documents or other material, but should not be admitted as expert evidence (that is, evidence of opinion) as to what was to be inferred from those documents taken as a whole. Because of her familiarity with documents, she is thus able to identify the documents which are likely to be of greatest use in the arguments of the respective parties. She has a greater facility for doing this than the parties themselves because of her great experience gained over some 10 years of looking through archives in the course of which she researched a text in which she has an interest. Plainly she makes efficient the process of identifying documents and material. It is important that I should remind myself that that is essentially her role. Her evidence has no particular value in this case, other than to identify relevant documents or to identify relevant witnesses who may be able to give effective and important testimony. Her position is very different from that of a witness who has directly seen something happen. It is also very different from the traditional role of an expert witness."

17. The Claimants say in their skeleton that the facts to which the witnesses testify derive from their examination of the historical records. They are not giving evidence of what they saw or what other people saw. They are giving evidence about what the historical record demonstrates by reference to the documents in the case. As I understood the skeleton argument, the Claimants go on to say that:

(a) How people express themselves in particular environments, the history of particular documents and the role played by particular groups and committees and the concerns of those whose views were being recorded are of relevance to the determination of the issues before me.

(b) That evidence is properly factual. It emerges from the documents themselves, from the wording used, comparison with other situations, and from tracing the history of particular events and individuals who were a part of them.

(c) The Claimants say that the witnesses speak to propositions that underpin the claim such as the system in (for example) paragraphs 9 – 10 of the Generic Particulars of Claim and specific issues set out therein, for example the Colonial Office's cover up of the resignation of the Commissioner of Police on the basis that police investigations were interfered with by the Governor amongst others.

18. The purposes of this evidence and the purposes set out in Tandem Law's letter of 31 July 2015 appeared to me to go substantially further than that which was referred to by Tugendhat J and Langstaff J. The extracts I have cited from Langstaff J emphasises that the only value of Professor Elkins' evidence was to identify relevant documents or relevant witnesses who may be able to give effective and important testimony. Tugendhat J had earlier said that Professor Elkins "Will be an expert in the sense that in many different cases only an expert can identify relevant factual evidence and obtain access to it in a form that can be put before the Court. For example in the present case, what documents once did exist and what documents still do exist is a matter of fact but only somebody with relevant historical expertise and skills would be able to identify the facts."
19. In oral argument Mr Myerson QC for the Claimants disavowed any intention of using the historians' evidence for any purpose other than that referred to in paragraph 10 of Mr Justice Langstaff's judgment. He only left open the possibility that if an historian was cross-examined then that may lead the witness into a different area. He also disavowed any intention of the historians giving opinion evidence, saying that when that was included in the statements it could either be excised or, if not capable of excision because otherwise the sense would be lost, the Court would be invited to disregard it. The way he put the case was that there are many thousands of documents. The historians could navigate the Court through the documents so as to assist the Court.^[1] In collating and presenting the documentation it will be necessary to put the documents together. Sometimes this is not straightforward. He gave an example that the Kenyan government reported to the Colonial Office and the British Army reported to the War Office. How to present the strands of documentation to demonstrate that the Cabinet was responsible for decisions made in Kenya may be complex. Indeed there may be disputes as to how the documents should be presented together. As an example he referred to the fact that McCombe J in the 2012 Mutua judgment (paragraphs 123 – 124) set out the resignation of Sir Arthur Young as Commissioner of Police in January 1955 and the enquiry conducted by Sir Vincent Glenday in December 1954. This was based on Professor Elkins' statements. This he said demonstrated the point, namely that allowing the historians' evidence facilitates the relevant documents being brought together by somebody with long experience and familiarity of those documents. If a witness gave evidence and there was disagreement about how the documents should be put together then the Defendant could cross-examine.
20. Ultimately Mr Myerson QC said there were two possible methods of presentation; one would be to allow the historians to facilitate the presentation of documentation, the second would be that the parties themselves did it.
21. I remind myself of paragraphs 11 and 12 of Tugendhat J's judgment in Mutua. He had not seen a draft report from Professor Elkins and, at that stage, he was deciding the usage of Professor Elkins in relation to a section 33 application. Things have moved on substantially since then. There are more documents and the process is in train for full trial of this action in 2016. In the ordinary way, to the extent that the parties cooperate, then the documents should be presented in an agreed manner; to the extent that the parties disagree the Claimants should present their case on the documents, subject to any objections from the Defendant which I would hear and decide on the merits.
22. Mr Myerson QC said that adducing the historians' evidence is a question of how best to assist the Court in this very complex litigation. I am not at all persuaded (a) that the evidence is admissible since it is not factual evidence but historians' evidence facilitating the presentation of the Claimants' case. There is no reason why, subject to arguments about costs, the Claimants cannot utilise that expertise of the historians in presenting their case without the historians giving evidence; (b) I do not consider that overall such evidence would assist the Court. It is more likely to give rise to further dispute, arguments about admissibility and problems as to whether the Court was being potentially unduly influenced by three eminent historians whose statements do contain opinion evidence which may not be capable of excision, and who have formed views which are seen to be of assistance to the Claimants.
23. I cannot see what evidence of fact the historians give so as to make their evidence relevant and admissible. In this regard:

(i) I note what Langstaff J said in relation to the evidence then before him and the very limited role of Professor Elkins.

(ii) I have looked at the indices. If I take for example the documents referred to and exhibited to the witness statements of Professor Elkins, they are divided into 24 headings. The first few of these are:

1. Knowledge of and reaction of the CA and CO to abuses 1953 – 1955.

2. CA and CO's reaction to the allegations of abuses 1953 – 1955.

3. Judicial records 1953 – 1955.

4. Chief Secretary's Complaints Coordinating Committee January 15 1954.

5. Arthur Young and Duncan McPherson allegations of abuse 1954 – 1955.

Under these five headings are over 29 documents. On the face of these indices I cannot see what may be added by way of admissible evidence. Samantha Howard's second witness statement at paragraph 22 says:

"The statements are essentially historical commentary, akin to their books. They produce and exhibit documents and express personal conclusions drawn from those documents as to the history of events and what they consider to have been the knowledge, attitudes and roles of different entities and individuals. …"

This was substantially borne out by the two main examples of evidence which Mr Myerson cited to me.^[2] I do not consider such evidence to be relevant and therefore admissible. If I consider the reasons given in Tandem Law's letter of 31 July 2015 set out above, what factual evidence can historians give which is not apparent from the documents themselves? I notice in this regard that the Defendant said to the court as long ago as 10 December 2014 that it foresaw an agreed chronology of relevant events.

24. In the Claimants' skeleton there was detailed reference to Rogers v Hoyle [2014] EWCA Civ 257. In that case the Court was dealing with the admissibility of an accident investigation branch report in relation to damages claimed arising out of an aircraft accident. The Court of Appeal noted that the report was a mixture of statements of fact and statements of opinion (paragraph 27). Further, there was no realistic possibility of the report being slanted (paragraph 29) and insofar as the report consisted of statements of fact or reported statements of fact it was prima facie admissible, it being immaterial that it constituted hearsay whether primary or secondary (paragraph 31). The remainder of the case deals with the admissibility of the findings of fact by the investigator and evidence of expert opinion. It is not the function of an expert to express opinions on disputed issues of fact which do not require any expert knowledge to evaluate (paragraph 52) and insofar as an expert's report does no more than opine on facts which require no expertise of his to evaluate, it is inadmissible and should be given no weight on that account. Where there is a mixture of inadmissible and admissible opinion evidence, the Court simply ignores that which is inadmissible. (Paragraph 53).
25. In my judgment Rogers v Hoyle does not take the matter any further since the Claimants wish to adduce the evidence as factual, not expert evidence. The essential question for me is that posed by paragraph 31, namely to what extent does the historians' evidence consist of statements or purported statements of fact? The Claimants accept that although the witnesses express their opinion, this should be discounted if it is not genuinely expert evidence or trespasses upon the Court's fact finding function.
26. The central reason to reject the historians' evidence is therefore that there is no relevant or admissible evidence which they can give as factual witnesses: (i) they were clearly not involved in the relevant events; (ii) evidence of opinion as to what the documents show or what may be inferred from them is inadmissible and, in any event, is not the basis of the Claimants' submission for the admissibility of this evidence; (iii) it certainly should not be the case, as the Claimants submitted, that if the 3 historians gave evidence that certain documents were the ones relevant to a particular issue and the Defendant disagreed, then if the Defendant did not cross-examine on this point, then they would be barred from disputing it.
27. I should record that the Claimants were prepared to call the historians for cross-examination if required. I was not persuaded on the argument I heard that, had there been relevant admissible evidence from the historians, it should have been excluded. In this regard the Defendant submitted that it should be for the following reasons:

(i) It would be grossly inefficient and unfair to the Defendant to cross-examine so as to explore the validity of statements made by reference to large quantities of documents. It is interesting that in the Claimants' skeleton argument at paragraph 20, Mr Myerson QC says that the complaint about voluminous witness statements and exhibits is unfounded. The witness statements amount to 320 pages. He then continues "The exhibits comprise the evidence the Court will examine in any event." This reinforces my judgment that the documents should speak for themselves and not be commented upon by historians' evidence; therefore the Defendant's objection on this basis does not arise.

(ii) The Defendant submits that the evidence is out of date because there has been new material since the Mutua litigation; also that the allegations are different. This is not in my judgment a reason for excluding any evidence which would otherwise be relevant and admissible. Nor is the fact that four potential witnesses of significance on behalf of the Defendant died in the Autumn of 2012 or shortly thereafter.

28. Finally I deal with the Claimants' point in their skeleton that the Defendant is seeking to define the only way in which the Claimants can present their case relying on the proposition in Dombo Beheer v The Netherlands [1993] 18 EHRR 213. In that case Dombo Beheer had sued the bank which objected to a witness being heard on the basis that a party to the proceedings could not himself be heard as a witness (paragraphs 15 and 16). The determination by the ECHR that there was a breach of Article 6 was in the context of one of the two key persons who could prove that there was an oral agreement between Dombo Beheer and the bank to extend certain credit facilities was not allowed to give evidence (paragraphs 34 and 35). This has no relevance to my finding that the historians can give no factual evidence of relevance which should therefore be admitted.

Corroborative Witness Statements

29. In this GLO there are over 40,000 claimants. The order is that 25 should be test claimants. The Claimants' lawyers wish to call 50 other claimants to give factual evidence. They have provided witness statements which have been served. The Defendant objects to 48 of these witnesses. All these 48 are claimants on the Group Register. The four statements which are not objected to comprise:

(i) Three statements which are directly corroborative of individual test cases. These are statements from Jane Wambui Zakariah, Rebeca Wanjira Mwaura and Eliaph Mutugi.

(ii) Professor Rotberg who gives direct evidence as to document destruction, this being one of the generic issues.

30. Paragraph 12 of the order of 14 March 2014 provided that the generic issues would be tried in the course of the test cases. Thus the 25 test cases are to be used so as to give judgment in those individual cases on their specific complaints but also to make legal and factual findings on the generic issues; see also Schedule 2 to the order of 14 March 2014.
31. This proposed evidence could be seen as similar fact evidence in relation to the test Claimants' evidence. On that basis, the two issues I have to decide are:

(i) Whether the evidence is admissible as being relevant.

(ii) Whether there are good grounds to decline to admit it in the course of the Court's case management powers.

(This is the approach to the admission of similar fact evidence: see O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534).

32. As to admissibility the Defendant says that none of the additional witnesses objected to gives direct evidence of the offence alleged in any of the test cases and there is no example of the same individual perpetrator being identified as in any test case. Nor is there any identified similarity of location or timing as in the test cases. The Defendant adds that the statements potentially prove only:

(i) Elementary facts concerning the Emergency which the Defendant will not contest, these including the fact that people were detained by the Colonial Government at various locations pursuant to the Emergency legislation and ordinary criminal law, people were required by the Colonial Government not to reside in prohibited areas pursuant to the Emergency legislation and there were incidents of violence on both sides including by persons engaged or purportedly engaged by the Colonial Government.

(ii) Details of detention/residence location and in some cases associated activity similar to that alleged by certain test Claimants (e.g. detention at Embakasi Prison associated with work on construction of the airport there), though with no clarity about timing.

(iii) Isolated incidents of misconduct similar to that alleged by certain test Claimants within Kenya and during the Emergency though with no commonality as to perpetrators' locations or time periods.

33. The Defendant took me to the statement of one witness which they said was typical of the witness statements. It is from a Mr Ndua and is dated 8 May 2015. Apart from the preliminaries and introduction, paragraphs 5 – 11 of his statement deal with his being physically assaulted during the state of Emergency before he was moved to a concentration village. He describes an assault by Home Guards which took place at his house. He then says he was released and ordered to report to Gitaro camp on a daily basis and had to work there by way of forced labour for three months without food or drink. In paragraphs 12 – 21 he then described being detained at Githunguri concentration village from the age of about 17. He describes what went on at that village in terms of forced labour. Finally from paragraphs 22 onwards he says that in about 1955 he was moved to Nairobi and thereafter was not subjected to mistreatment. He says he did not receive medical treatment. Under the heading Other Losses (paragraph 25) he says he was forced out of his education because of the state of Emergency.
34. At Exhibit SH2/3 to Samantha Howard's second witness statement is a Schedule of the additional witnesses. The penultimate and ultimate columns of this Schedule are formed as a result of Tandem Law's response in respect of each witness as to whether the witness corroborates a specific test Claimant, and then the Defendant's comments on the information so provided. As far as Mr Ndua is concerned it is said that his evidence corroborates the evidence of Mr Munyoike (test Claimant 21) whose place of detention was also Githunguri camp. Ms Howard comments that Mr Ndua was not a direct witness to test case events and that he and the test Claimant described the allegedly common location differently ("camp"/"concentration village").
35. The Defendant cannot say that the additional witnesses do not give relevant similar fact evidence. For the reasons I have already set out they submit that the statements provide at best limited corroborative evidence of the evidence of test claimants.
36. I was taken to the entry in relation to witness number 2 on Exhibit SH2/3. This is a Mr Muchiri. The Schedule shows that he was in detention at Embakasi camp/prison, as were four named test claimants. He alleges forced labour in constructing Embakasi Airport, which three of the test claimants allege. (Apart from this his statement alleges detention and abuse at a number of other venues).
37. The Defendant emphasises that these witnesses do not describe anything above and beyond what happened "on the ground". However, to take Mr Muchiri's statement, it may well be in issue that there was no forced detention and forced labour at Embakasi camp. I do not know. On the face of it that part of Mr Muchiri's statement (and similarly the part of Mr Ndua's statement which deals with Githunguri camp) is relevant evidence in support of those allegations. How probative it is depends on what is in dispute and the significance of it. That is very difficult for me to determine at this stage. Potentially it may be highly probative, potentially not. If for example the Defendant's case was that test claimant, Mr Munyoike was a single example of forced labour at Githunguri camp then Mr Ndua's would be highly significant. This is in the absence of it being direct evidence as to Mr Munyoike's forced labour; further, to the extent that the Defendant may deny any knowledge "higher up the line" then testimony from additional witnesses of similar experiences in the same camps could be highly probative. It could well support systematic longstanding wrongdoing. I note in this regard that I was told in answer to a question which I raised that the Defendant will have factual witness evidence in relation to what happened "on the ground". This may be limited but an example apparently is that there is evidence of a medical officer who visited the camps. I do not know what he is going to say. Nevertheless, it maybe that the evidence of some of the additional witnesses would be highly material to undermine his evidence.
38. Therefore as witnesses, irrespective of their status as claimants on the Group Register, the evidence which I have identified above may be of substantial probative value. I am not in a position to say at this stage.
39. The Defendant submits that even if the evidence is admissible the Court should consider whether there are good grounds to decline to admit it in the exercise of the Court's case management powers. They rely on three matters referred to by Lord Bingham in the O'Brien case and a further matter referred to by Lord Phillips. These can be distilled as follows:

(i) It is likely to be said that the admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided.

(ii) (Particularly when there is a trial by jury), it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded.

(iii) Stress will be laid on the burden which admission would lay on the resisting party in terms of time, cost and personnel resources, the lengthening of the trial with the increased cost and stress, the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections.

(iv) Whether the evidence is likely to be relatively uncontroversial or whether its admission is likely to create side issues which will unbalance the trial and make it harder to see the wood from the trees.

40. Lord Phillips says at paragraphs 53 – 54 the test of relevance is the test of admissibility of similar fact evidence in a civil suit. The policy considerations which have given rise to the complex rules of criminal evidence are considerations which the judge in civil litigation should keep in mind having regard to the Overriding Objective which requires the Court to deal with cases justly and in a way which is proportionate, expeditious and fair. In this context Rule 32.1 gives the Court the power to control evidence and to exclude evidence that would otherwise be admissible (see above in relation to the historians' evidence issue).
41. Finally in terms of authority I refer to:

(i) What Lord Bingham said at paragraph 5 of O'Brien:

"…the importance of doing justice in the particular case is a factor the Court will always respect. The strength of the argument for admitting the evidence will always depend primarily on the judge's assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole."

(ii) Evidence of extraneous matters should be confined to cases of similar fact for the traditional reason that unless the evidence is similar fact evidence it is not probative of the issue to be determined (Laughton v Shalaby [2014] EWCA Civ 1450 at paragraph 22).

42. The evidence of unfairness is contained in Ms Howard's first statement, paragraphs 29 – 34. Ms Howard says that the test case process was designed to produce a fair cross section of randomly selected test cases and that the Claimants' methodology subverts the test case process. It is common ground that the random selection did not mean that there should be no other evidence supportive of the test claimants. So far I have been dealing with the case on the basis that the additional evidence is that which is similar fact evidence to that of the test claimants. If such evidence is of substantial probative value (which I cannot determine at this stage) then it cannot be excluded on the basis that the additional witnesses were not randomly selected as test claimants. Indeed the Defendant said that had the additional witnesses not been claimants then their submission would essentially have been the same.
43. Next, Ms Howard says that the additional witnesses' evidence would be adduced without the Defendant having the advantage of pleadings etc and specific medical evidence. Absent properly pleaded cases it will not be possible for the Defendant to investigate the evidence advanced in the way it should bearing in mind those witnesses' position as claimants on the Group Register. As to this the Defendant says that they have not had the advantage of Part 18 questions. The Claimants' response to this was that they would consent to Part 18 questions being put so long as they did not go to issues such as causation and quantum which are entirely specific to the individuals. As regards medical evidence, it may be that when a Claimant is examined some fruitful source of cross-examination arises during the taking of the history. The Defendant gave an example of one test claimant who apparently says that he or she was injured by the Mau Mau. However that is not the purpose of a medical report. Medical reports are there to assess condition, prognosis and causation of injuries. Their primary purpose is not to test veracity.
44. Thirdly, Ms Howard says that the amount of work involved would be grossly disproportionate. She says that the Defendant is presently investigating 36 test cases with a view to having individual defences filed in December 2015 (there is some slippage on this – this is to be subject to a further application shortly) and trial in 2016. It is said that the Defendant is having to commit extraordinary resources to the task and the work involved is dictated to a large extent by the material provided by the Claimants, notably the Part 18 responses and witness statements from the test claimants received in May and June. She says that the lack of particularity in the material has made the exercise of attempting to research and meet the test allegations extremely onerous, and that for the Defendant to have a fair opportunity to assess and test the evidence of the 48 additional witnesses it would have to investigate them in the same way and this would place "an impossible burden" upon the Defendant. These are matters of some significance. They must be taken into account in giving proper consideration to the overriding objective. Had I been persuaded that the additional witnesses could not give evidence of any real probative value then these issues of proportionate costs would assume substantial importance. However, I must deal with the case justly as well as at proportionate cost. In this regard it would, in my judgment, be wholly wrong to exclude the evidence to which I have referred at this stage. Looking at the four O'Brien factors briefly:

(i) I do not consider that the admission of the evidence will distort the trial or distract my attention by focusing on collateral issues.

(ii) I cannot properly weigh the potential probative value of the evidence in the balance, save to say that it may well be significant.

(iii) There will be a substantial burden in time, cost and personnel resources. As to the potential prejudice to witnesses recalling matters long closed or thought to be closed and the loss of documentation and fading recollections – the evidence of these witnesses is no different from that of the evidence in the case as a whole.

(iv) The evidence is likely to be highly controversial (that in itself possibly an indicator that it may be of real probative value); I do not consider it will unbalance the trial or make it harder to see the wood from the trees.

45. As regards timing, this will have to be discussed; it may be that the witnesses can be factored into the hearing towards the end of 2016.
46. So far I have dealt with this application on the basis of the extent to which the witnesses corroborate the evidence of the test claimants. This was not the primary basis upon which the Claimants sought to adduce it. They said that the relevance of the evidence was that the Defendant did not admit that during the state of Emergency large numbers of Kenyans were mistreated contrary to law and, if they were, then the Defendant is not liable for them. The Claimants wish to call the additional witnesses who they say suffered at the hands of (in particular) British Forces but also others for whom they say the Defendant is liable. They say the evidence goes to:

•    The conditions in which claimants were kept.

•    Their day to day experiences.

•    The involvement of the British Army directly in the abuse that took place.

•    The scale of the enterprise that the Claimants say marked the conduct of the UK Government throughout the Emergency so that the Court should draw the conclusion that on the balance of probabilities the likelihood is that claimants were subjected to that activity.

•    A view from the ground about which the documents also speak.

47. Given my findings in relation to the parts of the witness statements which are corroborative of the test Claimants' evidence, I do not need to deal with the rest of their evidence. This is because I asked the Defendant about the possibility of excising evidence other than that which was corroborative. They replied that they did not seek any redactions at this stage and both sides reserved their position. Either the evidence should be admitted or it should not. They made reference to the case of JP Morgan Chase Bank and others v Springwell Navigation Corporation [2005] EWCA Civ 1602 where limiting the similar fact evidence was not accepted by the Court of Appeal (see paragraphs 77 – 81). I was not persuaded necessarily that the Defendant would be at any disadvantage if there was excision but, given that it did not seek it, the argument proceeded no further. What I do say is that the potential probative value of the similar fact evidence is such that I am clear that in my discretion I should not exclude this witness evidence. The Defendant's application therefore fails. Having regard to the provisions of Rule 32 CPR and the Overriding Objective it would not be right to exclude the evidence of those witnesses. I take into account what was said by Arden LJ about using the power under Rule 32.1 "With great circumspection for the purpose of achieving the Overriding Objective" – see Great Future International v Sealand Housing Corporation [2002] EWCA Civ 1183 paragraphs 23 and 24.

This ruling does not prevent the Defendant from making a further application should it seek to argue that circumstances have changed such that for example it can demonstrate that there is little, if any, probative value in the evidence.

Hearsay Statements

48. The statements to which objection is taken are set out in full at section C of Exhibit SH1 to Samantha Howard's first witness statement. The Claimants have served 30 Civil Evidence Act notices. 25 of these statements are extracts from a book by Professor Elkins, the relevant dates being between 1998 and 2003. In respect of 24 of these the evidence from Mr Cosgrove-Gibson at paragraph 15 is that Tandem Law have approached this matter proportionately, the database has been examined with a view to establishing if any of the witnesses in respect of whom hearsay notices have been served appear on the database. There were three witnesses who it was thought may be on the database. Attempts were made to contact these individuals using information in Tandem Law's possession. One was too ill to speak to their representative and one had no recollection of speaking to a white woman many years ago. Tandem Law therefore says that further steps would be disproportionate. The Defendant criticises this stance and says that insufficient steps have been taken by Tandem Law. As regards the other witness, Mr Fitz De Souza, the Defendant accepts that he is unable to attend court due to the fact he is too elderly and frail.
49. The other five witness statements include four dated between 2013 and 2014. These are from Claimants on the Group Register said to be deceased. The Claimants no longer seek to rely upon one of those, the statement by Mr Kaigiri Kuruga dated 27 September 2013. The fifth witness statement is from a Mr Nottingham. It is dated 10 November 2010 and was a witness statement from the Mutua litigation. The Defendant does not object to the admission in evidence of that statement and accepts that Mr Nottingham is unable to attend court.
50. Before I address the central issue of relevance and Rule 32.1, I deal with the objections that the witnesses in Professor Elkins' book (assuming she does not give evidence)^[3] will not be first-hand hearsay and secondly the Defendant's application to cross-examine the makers of hearsay statements who are or may still be living (save for Mr De Souza and Mr Nottingham). In support of this the Defendant's solicitors criticise Tandem Law for the fact that they have merely consulted their own clients' database. They also rely upon the extract from Phipson on Evidence, paragraph 29 – 16 which emphasises the importance of oral evidence and that the admission of hearsay evidence should be the exception to the rule.
51. Any objection as to admissibility merely on the basis of the degree of hearsay is misplaced. The scheme provided by the Civil Evidence Act 1995 is as follows:

(i) In civil proceedings evidence shall not be excluded on the ground that it is hearsay of whatever degree (section 1(1) and 1(2)).

(ii) The safeguards introduced in relation to hearsay evidence under section 2 of the Act and Rules of court in relation to hearsay notices etc, for failure to comply with section 2 of the rules does not affect the admissibility of the evidence. The Court may take the failure to comply into account in considering the exercise of its powers with respect to the course of proceedings and costs and as matters adversely affecting the weight to be given in accordance with section 4 of the 1995 Act (section 2(4)).

52. Under section 3 of the 1995 Act and Rule 33.4 CPR the Court may, on the application of the Defendant in this case, permit the Defendant to call the maker of the statement to be cross-examined. There can be no objection to this. However it is up to the Defendant then to call the maker of the statement. The matter is out of the Claimants' hands. There is no requirement in the CPR for the Claimant to call the witness or to make efforts to call the witness.
53. I return however to the more fundamental issues. As with the application in respect of the additional witnesses the question is whether the Court should exercise its power to exclude evidence that would otherwise be admissible under Rule 32.1(2) CPR. Insofar as the three statements which are those of deceased claimants on the Group Register, their evidence will not be excluded essentially for the same reasons as those of the additional witnesses. They are in the same category save that on the one hand the Defendant cannot cross-examine them (relevant to prejudice), and on the other their evidence will not cause quite the same effect in terms of time/resources. Overall, their evidence should be similarly not excluded.
54. As regards the witnesses named in Professor Elkins' book, nothing apparently identifies any of the individual Claimants or individual claims. These witnesses are clearly not on the Group Register and therefore some of the factors I have set out above for excluding such Claimants do not apply. Further if the Defendant does not get them to Court in order to cross-examine them then the trial will not be lengthened.
55. I have read a number of the witness statements. I attach as Appendix A to this judgment an example to which I was specifically taken, namely that of Muthoni Waciuma. It will be seen that the introductory context in italics is that provided by Professor Elkins in her book. The Claimants say that save as to preserve the absolutely necessary context this can be edited/redacted. The section in bold is what is quoted by Professor Elkins as having been told to her by Mr Waciuma. The Defendant says that there is no real record or details of the interviews by Professor Elkins and there is nothing for it to go on nor (probably) any real opportunity to cross-examine.
56. In my judgment the probative value of the evidence in the hearsay witness statements is extremely limited. I say this for the following reasons:

(i) So far as one can tell the evidence is not clearly focused on incidents which substantiate in any real way the cases put forward by the 25 test claimants or even the other witnesses whose evidence I have permitted.

(ii) Such weight as the evidence may have is in any event substantially diminished by reference to the considerations in section 4 of the Civil Evidence Act 1995. Subsection 4(2) gives a list of particular examples to which regard may be had. Following that list:

(a) It is unknown whether it would be reasonable and practicable for the Claimants to produce the author of the original statement as a witness. What I do know is that the Claimants consider it is not a proportionate expenditure of their resources.

(b) The original statements were not made contemporaneously with the occurrence or existence of the matters stated. They were made decades later.

(c) The evidence does involve multiple hearsay.

(d) Potentially the people involved do have motives to conceal or misrepresent matters. This can be said to be a real possibility though no more than that.

(e) It also appears that the original statement was an edited account and was made in collaboration with the historian for the particular purpose of research.

(f) It cannot be said that the circumstances in which the evidence is adduced as hearsay is such as to suggest an attempt to prevent proper evaluation as to its weight.

(iii) The evidence as presented is accompanied by substantial commentary so as to contextualise it. It is not clear how and to what extent that can be successfully redacted and leave the evidence making any real sense.

57. In order to exercise my discretion under Rule 32.1 and to take into account the factors in the overriding objective whilst reminding myself of the comments of Arden LJ in the Great Future International case, I have regard to the following matters:

(i) The task for the Defendant of researching the test Claimants' evidence and the further witnesses whose evidence I have allowed is already very substantial. To add potentially to that very significant burden such that the Defendant would have to try to explore, research and have a reasonable opportunity to respond to the evidence in the hearsay statements (given the nature and quality of the evidence as described above) requires the Court to be circumspect in the context of proper, fair and proportionate case management of this litigation.

(ii) In this context I note again that the Claimants' solicitors do not consider it proportionate to do anything other than search their database in order to see if the witnesses are still available. If it is not so proportionate then (a) that perhaps indicates that the probative value of the evidence is indeed low and/or in any event (b) entails that the Defendant will not be able to cross-examine any of the witnesses unless it first spends very substantial resources trying to trace them.

(iii) Even if the Defendant did trace the witnesses it could not compel them to attend. There will be no powers of subpoena which would have any effect in Kenya.

58. Overall therefore I have come to the clear conclusion that, given the very low probative value of this evidence, there are real risks that the admission of it will distort the trial, focus on issues collateral to the main issues to be decided and cause prejudice to the Defendant as well as increased time and costs, the consequences of which are not proportionate to the value of the evidence.
59. In summary this evidence will be refused under my powers under Rule 32.1.

Appendix A

Filed on behalf of: Claimants

Witness statement: Hearsay Evidence

Statement no: 1

Date: 4 June 2015

IN THE HIGH COURT OF JUSTICE CLAIM NO: HQ13XO2162

QUEENS BENCH DIVISION

KENYAN EMERGENCY GROUP LITIGATION

ELOISE MUKAMI KIMATHI AND JAMES KARANJA NYORO AND OTHERS

Claimants

-And- THE FOREIGN AND COMMONWEALTH OFFICE

Defendant

STATEMENT OF HEARSAY EVIDENCE MUTHONI WACIUMA (As recounted to PROFESSOR CAROLINE MACY ELKINS)

The Claimants will rely on the following account of Muthoni Waciuma. Professor Elkins interviewed Muthoni on 10 August 2003 in Limuru, Kenya. Muthoni Waciuma's evidence, as recounted to Professor Elkins, is as follows (the introductory context is provided by Professor Elkins in italics):

'In the early years of the Emergency two men working for the British government in Fort Hall were renowned for enforcing colonial control. The first was Sam Githu, better known as Sam Speaker… he was a loyalist from Chomo in Fort Hall who had risen through the ranks of the local colonial government. At the start of the Emergency, Speaker was an assistant district officer… Working alongside him was a young British settler nicknamed YY by the local Kikuyu… YY joined the Kenya Police Reserve when the war began… In 1953 Speaker and YY moved through Fort Hall, helping direct massive screening parades and individual interrogation sessions… On one occasion in early 1953 they brought two suspects to the Kandara police station'^[4].

"We were standing right next to our fireplace, resting our chins on the bricks and looking directly at the police station; it was just a few feet away. We then saw Kamiraru [YY] pull up with two men. They took the first man and hooked him up to the engine of the Land Rover while it was still running and his body just shook all over. But they weren't finished with him… Kamiraru and some other Kikuyu Home Guard took him over to the generator that was in the back of the police station's garage. They then hooked him up to this generator and electrocuted him. After that, Kamiraru and Speaker turned to the other man, who was still standing there. They tied him to the back of the Land Rover and made him run behind them as they drove off. He was running, and of course he falls. They drove him until he died in pieces. That was being done to really show people that if they didn't confess and give up Mau Mau that that would be their fate. I have never seen anything so cruel. And we were scared stiff, so we did everything we could not to have something like that done to ourselves. You just kept quiet. It was really a traumatic time… There was so much suffering. People will not believe that we have survived such things. A lot of atrocities like this one were done." ^[5]

Served this day of June 2015