We have already looked at the decision in Kimathi -v- Foreign & Commonwealth Office EWHC 3432 (QB) in relation to the issue of historians being called as witnesses. Here we look at the judgment in relation to corroborative/”similar fact” evidence.
- The witness statements of individuals who stated they had suffered the same experiences as the test claimants were not excluded.
- It was not possible for the court, at this stage, to determine the probative value of the supporting witnesses. Therefore it was not appropriate to exclude the evidence.
Corroborative Witness Statements
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.
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.
(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  2 AC 534).
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.
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.
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”).
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).
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.
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.
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).
(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  EWCA Civ 1450 at paragraph 22).
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.
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.
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.
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.
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  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  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.
- Similar fact evidence in clinical negligence cases.
- Mitchell … Similar Fact Evidence and the Editing of Witness Statements.
- Similar fact evidence in civil proceedings: a review of the cases
- Going on a fishing expedition? Don’t bank on an order for similar fact evidence.