High Court dismisses negligence claim over failed group action

Garnham: Outcome would have been the same even if there was more evidence

The High Court has struck out a negligence claim against the law firm and eight barristers who acted on a failed group action on behalf of more than 40,000 Kenyans against the Foreign Office.

Mr Justice Garnham ruled that there was no evidence that the lawyers could have put before the High Court in 2018 to have prevented it falling foul of the Limitation Act.

The so-called Mau Mau case was group litigation was brought against the Foreign Office by Kenyan nationals who claimed they were subjected to torture and rape by British soldiers and members of the Colonial Administration in Kenya in the 1950s.

Though the government settled with a group of claimants advised by Leigh Day, the action that followed led by what was originally Tandem Law, and taken over by AVH Legal, part of Manchester firm Antony Hodari.

In November 2018, Mr Justice Stewart dismissed the case after declining to disapply the Limitation Act. It followed six years of work by the lawyers under a conditional fee agreement.

Stewart J decided that the prejudice to the Foreign Office was such that there could not be a fair trial and that this prejudice outweighed the prejudice to the claimant.

Over the course of a trial spanning 232 hearing days, the judge heard oral evidence from more than 60 witnesses. He was taken to more than 3,500 documents by the parties from a pool of more than 40,000.

He handed down 16 reserved judgments on significant issues, including two test case rulings.

AVH acted on behalf of 20,000 claimants with a number of other firms also involved, most notably Welsh firm Hugh James, which represented the 14 lead claimants in the negligence action, some of whom it acted for in the original litigation.

They argued that AVH and the barristers – including KCs Simon Myerson, Bryan Cox and Andrew Haslam – failed to adduce the necessary evidence to support disapplication of the primary limitation period and failed to put together the right cohort of test claimants.

Garnham J agreed there was “a properly, if not strongly, arguable case” that the lawyers did not adduce any, or any, adequate evidence to explain the length and reasons for the delay in the test claimants commencing their actions.

However, such evidence did not seem to exist, he went on. Further, even if did, the outcome would have been the same.

Garnham J said: “In essence, it was the judge’s view that whatever the reasons for the delay, its effect on the [Foreign Office’s] ability to defend itself was so profound that no fair trial was possible and that comfortably outweighed the prejudice to the test claimants.”

That was enough to meet the test for summary judgment but the judge also considered the lawyers’ strike-out argument, which was that the claim mounted an attack on Stewart J’s approach and reasoning.

“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.”

Garnham J also found “no realistic prospect” of the claimants establishing that the cohort of test cases was not one to which “a reasonably competent solicitor or barrister, exercising reasonable skill and care, could have agreed”.

He issued summary judgment for the defendants and further, or in the alternative, struck the case out too.

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