England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/04/2017

Mr Justice Stewart :

The Application

1. On 30 November 2016 (sealed 8 December 2016) Hugh James, Solicitors of Cardiff, issued the following application:

"An order seeking relief from sanctions on behalf of the Claimants and permitting the claims issued under claim number: HQ16X04046 to be added to the court register and joined with the main action…"

2. In support of the application was the first statement of Simon James Ellis, a partner with Hugh James. This statement is dated 30 November 2016.
3. Since then there have been further very substantial statements, namely:

(i) A second statement of Mr Ellis dated 3 February 2017.

(ii) A statement from Kathryn Elizabeth Smith dated 10 February 2017. Ms Smith is a solicitor at the Government Legal Department ("GLD").

(iii) A further statement from Mr Ellis dated 10 March 2017.

(iv) A further statement from Ms Smith dated 24 March 2017.

Outline Chronology of the Litigation

4. A Group Litigation Order ("GLO") was made on 4 November 2013. By paragraph 6, Tandem Law were appointed the Lead Solicitors for the Claimants. By paragraph 13, no claim was to be added to the register after 30 April 2014 without permission of the Court. This date was extended by Order of 14 March 2014 (paragraph 1) to 30 May 2014.
5. In May 2014 the Generic Particulars of Claim were served. In October 2014 the Generic Defence was served. In November/December 2014 the Individual Particulars of Claim were served. The major CMCs before me were on 12/13 March 2014, 10/11 December 2014, 18/19 March 2015 and 2/3 March 2016. Other notable dates were:

10.12.2014 Amended Generic Defence.

18.12.2015 First 10 Individual Defences served.

February 2016 Remaining Individual Defences served.

March 2016 Amended Individual Particulars of Claim, Amended Generic Reply and Individual Replies served.

6. The trial commenced in May 2016. During June and July 2016 the evidence from the 24 then living Test Claimants was heard. Various applications were dealt with in July/August and September 2016. October 2016 was set aside for (a) preparation for the remainder of the trial and (b) preparation of (other) preliminary issues to be heard in the weeks commencing 7 November 2016 and 14 November 2016. Thereafter the Claimants began to open their case based on the enormous amount of documentation. This was not completed by the end of the Michaelmas term. The Hilary term has been spent hearing expert medical witnesses and lay witnesses from both parties, hearing further applications and completing the Claimants' opening.
7. Trinity term will be spent hearing a number of the Defendant's witnesses and the Defendant's opening case on the relevant documents. It is not expected that the final submissions will finish before spring 2018, after which there will be a substantial period required for writing the judgment.

[I should add that there were 2 applications in 2014 to add Claimants to the Register after the cut off date. One was unopposed, the other I allowed. Neither has any relevance to this application]

The Nature of the Application

8. In summary, it is said that 33 Applicants were some of many Kenyans who instructed GT Law, solicitors, to claim in the GLO. 30 of them have never been on the register and 3 were on the register but were removed (not 2, as Hugh James had thought). In respect of one of the 33, Applicant 14, the application is not proceeded with. This is because the claim was to be one made by the fiancée of the late Michael Wanzuee. However, they never married and it has now become clear that she does not have any capacity in which to bring the claim. There are therefore 32 Applicants before the Court. The remainder of the former GT Law clients are on the register. GT Law went into Administration on 25 November 2015. The Administrator was Quantuma LLP and claims were transferred to IC Law, solicitors. The chronology attached to this judgment is that provided by counsel for the Applicants. Apart from the first two entries namely the date of GLO and the original cut off date for entry onto the register, it sets out the position in some detail from 25 November 2015 to the week commencing 26 February 2017.
9. The Defendant opposes the application. Tandem Law, the lead solicitors, have taken a neutral stance.

The Procedural Position

10. The Applicants accept that they have to make their application under CPR 3.9. This provides:

"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

(2) An application for relief must be supported by evidence."

11. The principles in the leading case of Denton v White Limited and De Laval and others [2014] EWCA Civ 906 are relevant. In paragraph 24 the Court of Appeal said this:

"…A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the "failure to comply with any rule, practice direction or court order" which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate "all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]"."

12. The Applicants state that the breach by GT Law was serious and significant. Therefore, according to paragraph 28 of Denton, "the second and third stages assume greater importance."
13. In paragraph 29 of Denton the Court of Appeal said:

"29. The second stage cannot be derived from the express wording of rule 3.9(1), but it is nonetheless important particularly where the breach is serious or significant. The court should consider why the failure or default occurred: this is what the court said in Mitchell at para 41.

30. It would be inappropriate to produce an encyclopaedia of good and bad reasons for a failure to comply with rules, practice directions or court orders. Para 41 of Mitchell gives some examples, but they are no more than examples."

14. Paragraph 41 of Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 was cited in paragraph 12 of Denton. In summary if there is a good reason for the default, the court will be likely to decide that relief should be granted. Examples given were if a document was not filed because a party or the solicitor was suffering from debilitating illness or was involved in an accident. On the contrary, overlooking a deadline whether on account of overwork or otherwise was said to be unlikely to be a good reason.
15. As to the third stage, the Court of Appeal in Denton emphasised that if:-

(i) there is a non trivial (now serious or significant) breach and

(ii) there is no good reason for the breach –

the application for relief from sanctions will not automatically fail. This is because rule 3.9(1) requires that, in every case, the court will consider "all the circumstances of the case, so as to enable it to deal justly with the application". The Court must in considering all the circumstances of the case so as to enable it to deal with the application justly give particular weight to the important factors (a) and (b) in CPR 3.9(1).

– see Denton paragraphs 33-35.

16. Finally, I set out some particular extracts from paragraphs 36-38:

"36. But it is always necessary to have regard to all the circumstances of the case. The factors that are relevant will vary from case to case. As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance.

37. …[rule 3.9(1)]…"Nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice. If that were the case then we would have, quite impermissibly, rendered compliance an end in itself and one superior to doing justice in any case".

38. It seems that some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief. This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach…A more nuanced approach is required as we have explained…But the two factors stated in the rule must always be given particular weight. Anything less will inevitably lead to the court slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate."

17. I was also referred to the judgment of Thirlwall J (as she then was) in the PIP Breast Implant Litigation [2014] EWHC 1641 (QB). In that GLO the learned judge refused the application to join claimants 9-10 months after the cut off date in circumstances where the default was due to the failings of the solicitors. I have to exercise caution in relation to that case because (a) it predated the clarification of Rule 3.9 applications give in Denton; (b) the circumstances of each case differ. Nevertheless, what she said in paragraph 17 about the purpose and effect of the GLO in that case has relevance in this case also.

The Factual Context – Mr Ellis' Evidence

18. The Applicants rely upon their chronology and other contextual matters in the statements of Mr Ellis. I will set out the principal points. This has to be a reasonably extensive exercise given the criticisms made of the Applicants' case in Ms Smith's witness statement.
19. Mr Ellis's first statement deals with chronology up until November 2016. His second statement updates matters to 3 February 2017. Ms Smith's statement of 10 February 2017 then comments upon those two statements. Finally there is Mr Ellis's third statement which updates the chronology to 10 March 2017 and responds to Ms Smith's points.
20. The Applicants are Kenyans, resident in Kenya. Mr Ellis says that they are elderly, in many cases infirm and often live in remote areas without access to good communication facilities. This accords with information from the Test Claimants who gave evidence before me last summer. Mr Ellis does not specifically say that they are illiterate but (a) the majority of claimants and witnesses from Kenya of that age whom I have heard give evidence have been illiterate or barely literate (b) it is noted that in relation to the retainers given to GT Law, at least some of the Applicants apparently "signed" by fingerprint.
21. All the Applicants are said to have entered into retainers instructing GT Law confirming that they wished GT Law to pursue a claim against the British Government resulting from the activities between 1952 and 1963.
22. On 9 October 2015 GT Law went into Administration. The claims were transferred to IC Law who are dealing with a number of former GT Law claims. It is not clear how this transfer took place; the Applicants were not apparently aware of it. In paragraph 14 of his first statement Mr Ellis says that despite repeated requests of both IC Law and the Administrator he is unable to confirm precise circumstances or terms of the transfer.
23. Each of the Applicants has confirmed individually to Hugh James (contrary to some earlier confusion and with one possible isolated exception) that from the date of signing or marking the retainer they heard nothing whatsoever from GT Law or IC Law. They were informed by GT Law during the initial visit that GT Law had accepted their instructions and would progress their claim against the British Government, and that the claim would be taken to court if this was required.
24. Eventually a number of the Applicants became concerned and contacted a non governmental organisation in Kenya known as the Justice and Environment Foundation ("JEF"). The JEF represents the interests of residents who are old, vulnerable etc. on matters such as Human Rights Advocacy and Legal Support. The JEF contacted Mr Ronald Onyango, a Kenyan National who resides in the UK and is a qualified solicitor in England. His brother, Godfrey Onyango, is secretary of the JEF. Mr Ronald Onyango is an officer of the JEF and is its board chairman. In that capacity he wrote to IC Law on 22 November 2015 asking about the lack of contact and seeking confirmation that claims had been included on the court register and, if not, why not. He also asked for details of the transfer of papers between IC Law and GT Law. He received no response.
25. Mr Onyango then contacted Hugh James and in December 2015 the JEF arranged a number of public meetings in Kenya. The Applicants attended one of the meetings and confirmed they wished to transfer instructions to Hugh James. They signed forms of authority which were then sent to Hugh James. The Applicants were not the only Claimants to sign and return forms of authority. In total some 341 were sent to them.
26. On 23 December 2015 Hugh James requested the transfer of 10 files from IC Law. The attached chronology shows that Hugh James chased IC Law by letter, email and telephone call until on 23 March 2016 five files were received. Three further files were received on 6 April 2016. The following day, 7 April 2016, IC Law emailed they had never received the two missing files. These have not been received to date.
27. On 15 April 2016 Hugh James requested all remaining files held by IC Law. IC Law responded by making a complaint about Hugh James to the Solicitors Regulatory Authority (SRA) regarding the way in which instructions from the former GT Law clients had been received by Hugh James. The SRA requested information from Hugh James on 14 June 2016 which was responded to within a couple of weeks. On 17 October 2016 the SRA confirmed that no action was being taken against Hugh James. IC Law refused to hand over any further files. Hugh James sent a letter to IC Law dated 25 October 2016 and eventually issued Part 8 proceedings for delivery up of 331 files. A date was fixed before the Master on 10 January 2017. On 3 January 2017 the Administrator agreed that IC Law would deliver up the files and the application was adjourned. From 13 January 2017 and over the week following all but 36 of the files were delivered up. Those 36 included the 32 relating to the Applicants. On 16 January 2017 IC Law said they had never been in possession of these files. Notwithstanding this, on 15 February 2017 Hugh James received eight files from IC Law in electronic format. Mr Ellis says that the files were badly organised and difficult to follow. After a considerable time spent working through each document Hugh James were able to link seven of the files to the Applicants. Two of them, Angelica Ngito Solomon (Claimant 32 in the application) and Kasikwa Kinamu Mbuvi (Claimant 33) were Claimants who had been on the register but removed from it. The other five had never been on the register. They are Claimants 7, 10, 11, 16 and 26 in the application.
28. On 16 March 2016 the first enquiries were made of Tandem Law, the lead solicitors. Hugh James asked them to confirm that the claims of the new Hugh James' clients were on the register. Tandem Law confirmed that they were for the vast majority but that 31 of the Applicants had never been registered and two had been removed. There is no suggestion of any delay by Tandem Law in responding to Hugh James' letters. Hugh James checked with IC Law and the Administrator. The Administrator said that as far as it was aware all claims dealt with by IC Law should be on the register.
29. As far as contact between Hugh James and the Applicants and other Claimants is concerned:

(i) In May 2016 four partners of Hugh James attended public meetings in Kenya arranged by the JEF. The meetings were held in Meru and Maiella.

(ii) Five Hugh James partners attended a number of further meetings in Maiella and Kasikeu between 24 and 26 January 2017. This was after a number of files had been received from IC Law. The partners met collectively with 24 of the 33 Applicants. Statements were taken from them and their claims were discussed. Mr Ellis says that in all cases they confirmed they had been the subject of unlawful detention and/or physical mistreatment including beatings, had instructed GT Law to bring a claim on their behalf and had placed their fingerprints on GT Law retainers in place of a signature, but had not heard from GT Law since that date.

(iii) Partners from Hugh James visited Kenya again in the week commencing 26 February 2017. They met 94 Claimants, including the remaining 9 Applicants not already seen in January 2017. These 9 Applicants confirmed the same position in relation to GT Law as the 24 had done – see (ii) above.

30. Additionally Mr Ellis says that he has seen copies of GT Law retainers handed over by 30 of the Applicants at JEF meetings which took place prior to the first Hugh James meetings in Kenya in May 2016. He confirms that in all cases the date on the retainers pre-dates 30 April 2014. More recently he obtained instructions from some Applicants to waive privilege and redacted copies of 6 retainers are exhibited to his third statement. After the Defendant's skeleton was filed, Hugh James wrote to the Defendant on 3 April 2017. In that letter Hugh James said they remained of the view that GT Law's terms of business and retainers were privileged but they were keen that the Court dealt with the merits of the application. They therefore have taken instructions from a number of clients to disclose full un-redacted copies of those terms of business and retainers. They enclosed un-redacted copies of the six previously redacted retainers adding:

"Whilst we currently only have instructions from a small number of Claimants we can advise that, other than the Claimants personal details, the GT Law ToBs and retainers are identical in all cases."

The Nature of the Applicants' Claims and their Categorisation

31. Mr Ellis has exhibited Schedules dealing with the nature and categorisation of the claims. As to the nature of the personal claims for physical injury they broadly reflect the claims evidenced by the Test Claimants. The mistreatments include beatings, rape, torture and detention. They are therefore serious allegations.
32. Taking the cohort of 32 as a whole the claims fall into three categories, namely:

(i) Claims brought by the Applicants in their personal capacity.

(ii) Claims brought by the Applicants in their capacity as personal representative of the estate of a deceased relative.

(iii) Claims brought by the Applicants both in a personal capacity and in their capacity as personal representative of the estate of a deceased family member.

I attach to this judgment a short and simplified Schedule analysing the claims. The Schedule also contains footnotes of reasons in some of the cases why GT Law may well not have included the claims in the Register. (See later).

Claims Brought as Personal Representative

33. It has only recently become apparent that a number of the remaining 32 Applicants are claiming either wholly or in part as personal representative of the estate of a deceased relative. 13 are estate only claims and 5 are in part estate claims. This, says Mr Ellis, is because the files of papers had not been delivered up and the information was therefore only obtained during meetings in January and February 2017.
34. Mr Ellis says that the Applicants told Hugh James in the recent meetings that they had instructed GT Law to bring the claims on behalf of the estate of their deceased relative or, where applicable, on their own behalf and also on behalf of the estate.
35. Because the application was sealed on 8 December 2016, the application was made to join the claims to the register on behalf of the Applicants in their personal capacity only. Permission is now sought to register a claim on behalf of the estates.
36. As a result of the information recently received Mr Ellis says that he is seeking copies of the death certificate and will, or grant of representation, in respect of the estates. He has instructed a firm of lawyers based in Nairobi to obtain copies of the relevant documents as a matter of urgency.
37. On 24 November 2016, very shortly before the present application was issued, I handed down judgment in respect of Test Claimant 11. The judgment is at [2016] EWHC 3005 (QB). I struck out that claim as a nullity. The essentials of that decision were:

(i) TC11 died on 23 August 2013, some seven months before his name was entered on the Group Register on 24 March 2014.

(ii) The claim was brought in the name of TC11's name and not that of his estate.

(iii) At the time when TC11's name was added to the register no valid estate claim could have been brought as the grant of administration in Kenya was made on 28 January 2015 and re-sealed in England on 22 March 2016. An administrator cannot sue unless a grant of letters of administration has been obtained and, in respect of a grant of administration in another jurisdiction, proceedings cannot be validly instituted prior to the re-sealing of the grant in England.

38. As matters stand there is no information before the Court as to:

The date of death of the relevant deceased persons in this application.

Whether a grant of letters of administration has been obtained in Kenya.

Further, it appears that even if letters of administration have been granted in Kenya they have not been re-sealed in England. In those circumstances the application must fail in respect of those claims on behalf of estates.

39. Further and in any event in respect of those claims Ms Smith's witness statement of 24 March 2017 gives important history of which the Applicants' solicitors may not have been aware, not having been solicitors involved in this GLO until recently. That history in outline is:

(i) In this GLO a distinction has been made by the Lead solicitors between claims brought by Claimants in their personal capacity and claims brought on behalf of a deceased family member. The former are within the GLO, the latter outwith the GLO. The only estate claims which are proceeding are where personal claims were made and entered on the register and that person has since died.

(ii) In this regard, the Lead solicitors made it clear in a witness statement from Mr Cosgrove-Gibson dated 11 March 2014 that claims brought on behalf of a family member who was deceased were not to be within the GLO. This was in the context that another firm of solicitors were proposing to introduce such claims.

(iii) Exhibit FCG1 to Mr Cosgrove-Gibson's witness statement is a radio script of an advertisement which had been published in Kenya between the date of the making of the GLO on 22 October 2013 and the date of Mr Cosgrove-Gibson's witness statement; in other words at least some two months before the then cut off date of the register, namely 30 April 2014. It is emphasised that the criteria which had to be met was that a Claimant "personally must have a claim for compensation", it being stressed "you must have suffered some form of mistreatment…". GT Law are mentioned as one of two other firms progressing claims at that stage.

(iv) A case management conference took place on 12 March 2014. GT Law were represented at that CMC. Mr Myerson QC representing the Lead solicitors referred to a protocol which the Lead solicitors' Claimants adopted. He said that GT Law and the other firm, Knights Law, were adopting the protocol also. The protocol sets out conditions for entry onto the register. Condition 22 of the 30 January 2014 version exhibited to Ms Smith's fourth witness statement is:

"Certification that at the time of entering the claim on the register that they are not deceased."

(v) There is also a witness statement from Mr Peter Wangaki Wena dated 5 March 2014. He represented agents of the Lead solicitors in Kenya. In paragraph 23 of his statement he said:

"Once it is explained that the only Claimants who should come forward are those that can give evidence on their behalf about ill treatment to them personally, the numbers reduced drastically."

Therefore in respect of claims on behalf of the estate where the deceased died before the cut off date of the register, these are impermissible because there are no letters of administration before the Court and/or the grants of letters of administration have not been sealed in England. Further it would not be right for me to exercise my discretion under rule 3.9 because:

Looking at Denton stage two there may have been no failure or no default by GT Law. Given GT Law's involvement of at that stage and the history which I have briefly set out above, it may well be inferred that GT Law deliberately did not put these claims on the register. This is also relevant to the Denton stage three.

To add this new type of claim nearly three years after the cut off date would be wholly wrong in all the circumstances of the case. All solicitors involved during this litigation prior to cut off have apparently abided by the decision that such claims will not be litigated. The Test Claimants were selected after a thorough and lengthy process. No Test Claimant is in this category. There would have to be the selection and pleading out of (a) further Test Claimant(s) to deal with evidential arguments and/or further matters relevant to s33 of the Limitation Act 1980.

40. Therefore the application in respect of claims on behalf of the estates of persons who had died prior to the cut off date must be rejected as hopeless.

Stage 2

41. Of the 18 Applicants remaining there are 17 with a claim for personal injury, and one whose claim would only be for false imprisonment. I have ruled in a very recent application to amend the Generic and Individual Particulars of Claim that false imprisonment is not to be pleaded as a cause of action. Therefore the application for Applicant number 25 must fail on that basis. The basic proposition of the Applicants is that GT Law were in default. This is on the basis that the Applicants have individually confirmed to Mr Ellis that they instructed GT Law before the cut off date and they were entitled to assume that their claim would be entered timeously on the register. In his first statement (paragraph 43) Mr Ellis says "It is still unclear how or why this step was never taken."
42. It is instructive to look at the very limited information provided on the few GT Law electronic files which have been received. These show the following:

(i) Angelica Ngito Solomon – Applicant 32

The file states:

"Tony has confirmed that this client's information is correct but the client was not a victim…this file needs to be closed because the client did not suffer from any injuries."

As recorded above the Applicant did not suffer physical injuries. On the schedule her claim is an estate claim only. Her claim is one which was removed from the register. Seen in the context of the history of people who suffered no physical injury, it is difficult to infer that the removal of this Applicant's name from the register was unjustified. This is particularly so given the formality of the step of entering somebody on the register in the first place.

(ii) Kasikwa Kinamu Mbuvi – Applicant 33.

The file states:

"Tony has confirmed this Claimant did not suffer – claim relates to husband only – will remove from register…Tony has provided us with further information on this client. The client is claiming on behalf of her husband and not herself. The client is not a victim. This file needs to be closed….Review: file will be getting closed shortly. I am currently in the process of typing up a limitation letter to send out to the client."

Similar comments apply to this applicant as do the previous applicant. According to the Hugh James's schedule, this Applicant's husband died in the 1960s.

Although it is possible that Applicants number 32 and 33 were removed because of the nature of their claim, this is not clear. Ms Smith's statement of 10 February 2017 at paragraphs 38-44 raises other possibilities. Both Applicants were on the group register served by the Lead solicitors on 30 June 2014. They are referred to as being added to the register on 30 May 2014 and removed on 30 June 2014. The same details are on the register served on 27 May 2015. Ms Smith says (paragraph 41) that on the next update to the register received by the Defendant on 19 May 2016 neither Applicant's details are included. The register no longer contains any reference to GT Law clients and has been amended to reflect the change of solicitors to IC Law and Hugh James. Two other points are made:

a. In support of the second application in 2014 to add Claimants to the register after the cut-off date (see paragraph 7 above) there was a statement from Patrick White, a senior manager of GT Law who asked to re-add 22 Claimants previously removed from the group register. He said that this was because after adding them to the register on 30 May 2014 it became apparent their ID number had been recorded incorrectly on the register. After consultation with the Lead solicitors, GT Law realised that the Defendant had taken the stance that all clients with incorrect IDs must be removed from the register and an application made for late entry. GT Law did this, removed any clients from the register with an incorrect ID number and then made application to re-add them. This application was allowed by the Court in December 2014. None of the 22 includes the three remaining Applicants removed from the Register.

b. In support of the December 2014 application was a witness statement from Tracey Greatorex, a solicitor with the Lead solicitors. This statement is dated 1 December 2014. She refers to an amnesty period agreed between the Lead solicitors and Defendant whereby, if within a month of 30 May 2014 somebody put their name on the register and wanted to come off they could do so without being ordered to pay any costs. She says that 28 GT Law clients were removed pursuant to the amnesty but there is no breakdown in terms of their names. In total 1886 Claimants were removed from the Register.

(iii) Loise Wairimu Kimuthia (Applicant 7)

The file states:

"Paddy has given me permission to close this file as the client ID and first paragraph of her statement says she was born in 1968, but her statement says that she was arrested in 1954? Tony has tried to call this lady but did not get any response, he also chased with the area chief and no one knows who this client is."

It is said that this Applicant sustained personal injury. She was seen on behalf of Hugh James on 26 January 2017 and said that the date of birth on her ID card was incorrect. She said that she was unaware that her claim had not been registered and had never been contacted by GT Law or IC Law. Mr Ellis comments that it is surprising that GT Law had apparent difficulty contacting the Applicant as his firm was able to meet with her without difficulty.

(iv) M'arimi M'kiriinya (Applicant 10)

The file states:

"Closing file as we do not have the information required to proceed with this claim – Paddy authorised."

Hugh James says this Applicant tells them he suffered personal injury. He was not aware that his claim had not been taken forward by GT Law and confirmed he had not received any contact from either GT Law or IC Law.

(v) Martha Muthaga Atanacio (Applicant 11)

The file states: "closing file as we not have (sic) the relevant information to proceed with the claim – Paddy authorised"

This Applicant alleges personal injury and seeks to bring an estate claim on behalf of her deceased husband. She says she did not receive any contact from GT Law or IC Law.

(vi) M'munyua M'twamwari (Applicant 16)

The file states:

"Closing file as there is not enough info to proceed with the claim – Pad authorised."

This Applicant says he was physically injured. He was never contacted by GT Law or IC Law to ask for further information in relation to his claim and says that he was never informed his file had been closed.

(vii) Paskwalina Kanyore M'Mugambi (Applicant 26)

The file states:

"This client has been selected as a Test Case"

(It is assumed that she was in the original large cohort of possible test cases as she is not actually a Test Claimant).

"Tony has confirmed this client was not a victim!! Removing from register…the client did not suffer and has been removed from the register. This file needs to be closed."

According to the Hugh James information this Applicant was the subject of serious physical abuse. She says she did not receive any contact from GT Law or IC Law and was never informed that they were not proceeding with her claim. In fact this Applicant was the third who was added to the register on 30 May 2014 and removed on 30 June 2014; the comments in (i) and (ii) above re Applicants 32 and 33 apply to her.

[It may be that the reference to "Pad" or "Paddy" in some files is a reference to Patrick White who made the statements in support of re-adding claimants to the register in December 2014.]

43. Therefore in some cases there appears, in the light of the full history, to be a possible justification why those claims are not on the register. Indeed that is the only source of any evidence, apart from the suggested inference of default by GT Law. In others there is, on the very limited information available, a conflict between GT Law's note and what the Applicants have recently told Hugh James. Finally, a number of the Applicants apparently have a date of birth which does not match their Identity Card. These are numbers 5, 7, 17, 19, 27 and 30. This of itself is not fatal to putting a Claimant on the Register, though it may have undermined GT Law's confidence in the case.
44. The following further matters need to be taken into account:

(i) All Applicants complain of a lack of contact from GT Law/IC Law.

(ii) The client care letters (see below) contain the following statement:

"Alternatively if we decide that your case does not have reasonable prospects of success we will advise you of this and close your file…"

(iii) GT Law did enter on the register some 300 claimants whose files have been passed to Hugh James.

(iv) By reference to the Applicants in the schedule to this judgment there could well have been a good reason in claims not being registered if they were claims on behalf of estates only. That disposes of all but 18 of the Applicants, which is reduced to 17 because Applicant 25 did not apparently suffer personal injury.

(v) There is evidence in the papers of many reasons why potential claimants were not entered on the register. In Mr Wena's witness statement (paragraphs 17 and 18) he says that as at the 3 March 2014 agents for the Lead Solicitors had seen a total of 7130 potential claimants. From this number 1095 were rejected and told that they did not meet the criteria or appeared to have been schooled in what to say during interview process. Further, in proposing the amnesty removing people from the register Tandem Law's letter of 15 May 2014 gave as reasons "Examples may be those who have died, when it comes to light they have received Leigh Day compensation [a reference to the previous Mutua case], they are represented by other solicitors (and neither firm wishes to proceed with them) or perhaps allegations are less severe than first thought." It is of note that these are examples given and, further, that the same sort of reasoning could well have applied to not putting people on the register in the first place.

(vi) There is no evidence that Hugh James have attempted to contact anybody who was at GT Law at the material time in order to assist. As to Mr Onyango, he set up the department for the Kenyan claims at GT Law. He was an employee of GT Law from October 2012 and then became a consultant in April 2013. On the 6 retainers disclosed he is stated to be the then point of contact at GT Law. He finished with them in September 2013 and then moved to Knights Law. Mr Onyango is now employed as a consultant with Hugh James. There is no information from Mr Onyango explaining, in relation to his involvement with GT Law before September 2013, how GT Law operated in terms of obtaining information and keeping in touch with clients etc. Indeed, having regard to the dates when the Applicants may have become clients of GT Law, it is not clear whether Mr Onyango had any dealings with them at that stage. It should be noted that there is substantial evidence that Mr Onyango was intimately involved from the outset with this litigation. He appears to have been responsible for the original idea and to have introduced clients to GT Law, Knights Law and now Hugh James. He also appears to have had a strong financial interest in the litigation.

45. Drawing all these strands together and having regard to paragraph 41 of the Mitchell case (cited in paragraph 12 of Denton) it is not possible for the Court to assume, as the Applicants assert, that it is "clear that the default is entirely that of GT Law and not the Claimants personally." The above information leads to the conclusion that GT Law may well have been justified in de-registering claims or not entering claims on the register. Further, in the context of some 300 claims properly registered, it is not easy to infer purely on the basis of what the Applicants have told Hugh James in relatively recent times that there was default by GT Law. There may have been, but the evidence is unclear. If GT Law did not keep their clients informed or failed properly to terminate the retainer, that does not mean that they were wrong in not registering them.

The Court does not have any of the information originally provided by the Applicants to GT Law in 2012/13 or any further information. I note that in some of the few files disclosed it seems that somebody called "Tony" was receiving and providing information from Applicants in 2014. It is not known if any other of the Applicants communicated with him in that period, or what any Applicant said to him.

In relation to the retainers there are the following points to be made:

(a) The printed information:

"From the initial information you have supplied it would appear that you have reasonable prospects of success"

"It is vital that we are able to contact you at all times until your case is settled…"

Once we receive your signed document pack we….will contact you to discuss your claim in more detail. Following any contact we will then assess the merits of your claim and decide whether or not you have reasonable prospects of success…if we decide that your case does not have reasonable prospects of success we will advise you of this and close your file."

"Based on your instructions I believe you have good prospects of success…if, however any information should be discovered that changes my initial opinion, I would advise you accordingly."

"Further instructions" are said to have been invited. There is no relevant factual information in the retainers.

(b) The signing of the retainer was the beginning of the process. An Applicant had to complete a questionnaire, provide an identity card and deal with follow up questions and remain in contact.

(c) It is not known what information was given to GT Law. From the piecemeal information available, including the few files, it appears that GT Law may well have had proper reasons for not including/removing applicants from the register. On the face of the 7 files we have there is evidence of potential good reason, for 14 other Applicants there is (at least on present knowledge) good reason. This leaves 10 where there is no documentary or other information save from the Applicant, except that in 4 of these there are identity card issues.

Further it appears that there are three Applicants (numbers 3, 5 and 16) where Hugh James have not seen a GT Law retainer. Apart from those provided, the Court does not know the identity of those others for whom a copy retainer is held and those for whom a copy retainer is not held.

46. I have done my best to set out in some detail on the information available why the default occurred. In summary, I cannot find, even if the Hugh James' assertions are correct, that there is good reason for the default. Moreover, I am not convinced that the default is due to failings by GT Law. That is a possibility, or a possibility in the case of some of the Applicants, but the evidence is unclear.
47. What can be said therefore is there was no good reason for the default, whether or not it was caused by solicitors and/or Applicants.

The Third Stage

48. Having reached this point, Denton mandates that the application for relief from sanctions will not automatically fail because the Court will consider "all the circumstances of the case, so as to enable it to deal justly with the application." I have to give particular weight to the need (a) for litigation to be conducted efficiently and at proportionate cost and (b) to enforce compliance with rules, practice directions and orders. Also (c) the promptness of the application is a relevant circumstance to be weighed in the balance along with all the circumstances. Finally, (d) I have to take into account the seriousness and significance of the breach (stage 1) and any explanation (stage 2). The more serious or significant the breach, the less likely it is that relief will be granted unless there is a good reason for it.
49. I deal first with (a) and (b):

(a) The Applicants' submission is that the breach does not prevent the litigation from being conducted efficiently and at proportionate cost and that the addition of the claims will not affect the trial timetable or prejudice the ongoing trial. This is correct in respect of the claims for personal injury by the Applicants. It is not correct in respect of estate claims. If they were permitted, they would require selection of Test Claimant(s) and that would impact substantially on the litigation. Since those applications are not being permitted in any event, I do not deal with them further.

(b) The Court must bear in mind the need for compliance with orders as, to quote Denton "The old lax culture of non-compliance is no longer tolerated." In this GLO, the comments by Thirlwall J (as she then was) in para 17 of her judgment in the PIP Breast Implant Litigation case have particular force.

50. I now consider (c):

50.1 The promptness of the application. First, and importantly, the application is far from prompt. The register closed 2½ years before the application was issued. In that period there were numerous CMCs and hearings and the trial was underway for 6 months.

50.2 The Applicants allege that the reasons for the lack of promptness are due to their personal circumstances which are far divorced from the conditions in the UK and due to lack of information from GT Law and IC Law. Even assuming everything in their favour in this regard (which is far from made out) the fact remains that the application is incredibly late. Further, there is some dispute as to whether all the delay could be justified on that basis. The Defendant criticises Hugh James for delay between their first involvement in November 2015, the date of forms of authority instructing Hugh James in December 2015 and the date of issue of this application which was sealed on the 8 December 2016. As can be seen from the Applicants' chronology attached to this judgment the predominant justification for this was lack of communication from IC Law and the complaint made by IC Law to the SRA which was not resolved until 17 October 2016. In relation to this period of some 12 months, I make the following comments:

a. Hugh James requested the transfer of ten files from IC Law by letter dated 23 December 2015. Eight of these were received between 24 March 2016 and 6 April 2016. On 7 April 2016 IC Law told Hugh James that they did not appear to have received the files for two of the Applicants (Applicants numbers 4 and 30). Therefore it was known that these two files probably would not be forthcoming. A request for remaining files held by IC Law was sent by Hugh James on 15 April 2016. It was then that IC Law made a complaint to the SRA. Mr Ellis says (first statement, paragraph 34) that initially it was anticipated that IC Law would provide the files of the various Claimants in order that these could be fully reviewed before an application to the Court was made. However, by 7 April 2016 Hugh James knew that IC Law did not have two of 10 files they requested. It is also of note that the Lead solicitors were not approached until 16 March 2016. This was in respect of ten clients only. Tandem Law replied the same day saying that eight of them were on the group register but two were not (again Applicants numbers 4 and 30). Mr Cosgrove-Gibson of Tandem Law stated: "The two of these are not on the register you would need to make special application and give reasons why they should be put on the register." On 21 April 2016 Hugh James provided a further list of 291 names to Tandem Law and a further 49 on 17 May 2016. Tandem Law responded quickly and told Hugh James that there were a total of 69 names which could not be matched with entries on the group register. Mr Ellis says that he considers it reasonable for Hugh James to seek the files of papers and to review the contents as it was reasonable to assume that the file of papers may have explained reasons for the claim not being placed on the register at all or being removed once it had been on the register. Also he says he believes it is reasonable for Hugh James to have awaited the outcome of the SRA investigation.

b. On analysis:

(i) It took some three months before contact was first made with the Lead solicitors

(ii) As at April 2016 Hugh James had been told by IC Law that they did not have files for two of the Applicants; also Hugh James had been told that the Applicants were not on the Register.

(iii) As a result of a dispute between the Applicants' former solicitors, IC Law and Hugh James at least eight months was lost (April-November 2016 inclusive) before this application was made, including six weeks after the conclusion of the SRA proceedings.

(iv) The Defendant was wholly unaware of what was going on and indeed was not given any notice of this application. Nor was the Court given any notice.

Therefore, some 12 months were lost for reasons which can be categorised as the responsibility of either former or current representatives of the Applicants.

50.3 In the PIP Breast Implant Litigation (paragraph 26) Thirlwall J stated the fact that if the applicants were to suffer loss as a result of the failure to join the group then they would have a strong claim against their solicitors. For reasons which I have mentioned above I am not satisfied that GT Law were in default here. If they were then the Applicants would have a claim over against them. If GT Law were not negligent then reasons for this may well be that the Applicants did not have a good case and/or were themselves responsible for not being on the register. Assuming, for the purposes of this judgment, that GT Law were in default, the Applicants submit that GT Law is in Administration and there is no evidence it has a valid policy of insurance in place. However no enquiries have apparently been made and the expectation is that solicitors who were validly practising would have professional indemnity insurance, something which Leading Counsel accepted in argument. Insurers are named in the 2013 retainer documents. Further, the Applicants say that there would be inevitable prejudice proceeding against those previously acting for them and that any claims would be for loss of a chance which inevitably would result in reduced recovery for the Claimants. Also there would be significant delay for the Applicants, many of whom are elderly. These would not be claims against GT Law for personal injury but rather for professional negligence and would not attract the protection of QOCS. They would be obliged to obtain insurance cover. There is of course some merit in these points, which have for the most part often been argued in respect of claims over against solicitors. I take them into account, but they cannot wholly undermine the argument that, on the Applicants' contention, there would be a valid claim against GT Law. Therefore the Applicants' prejudice is not totally answered by this point but it is partially answered.

50.4 In terms of prejudice to the parties, if the GLO claims fail there will be no prejudice to either party whatever the outcome of the application. If the GLO claims succeed, the Applicants may well lose their right of action and be left only with their less favourable potential claim against GT Law. I do not underestimate this prejudice. As far as the Defendant is concerned, Ms Smith says that there will need to be a process of considering which issues in the test cases were successful and mapping those to the other 40,000+ Claimants. She says this would be a considerable exercise in both time and costs for the Defendant. The costs of 33 additional claims against the cost of the cohort as a whole is likely to be a small percentage of the work, but will result in additional costs and time for the Defendant which is likely to run into a not insignificant sum which she puts at "tens of thousands of pounds". The Applicants point out that no attempt is made to show how this figure is arrived at. Nevertheless, if the Test Claimants are successful, particularly if they are successful only on some issues, there will be a not inconsiderable amount of extra work and cost incurred by the Defendant.

50.5 An additional point is that in respect of 4 of the 17 personal injury Applicants there are very substantial discrepancies as to their age. This point having been raised by Ms Smith, Mr Ellis said (para 88, 3^rd statement) that the relevant Applicants have confirmed their dates of birth to him as follows:

- Applicant 7: d.o.b. 1943 (ID card states 1968)

- Applicant 19: d.o.b. 1932 (ID card states 1951)

- Applicant 27: d.o.b. 1933 (ID card states 1960)

- Applicant 30: d.o.b. 1930-1935 (ID card states 1957)

It is true to say that, on the evidence heard by the Court from the Test Claimants and their witnesses, there have been some inconsistencies as to the ID cards, though they are usually of only a few years and not such that the date of birth given on the ID card was during or after the Emergency. A reason given has been that ID cards stated a date a few years after the actual date of birth so as to avoid paying a specific tax prior to Independence. No explanation is provided by Mr Ellis as to the reasons for the discrepancies in these four Applicants' cases. Apart from being a possible reason why GT Law did not put these claims in the register, the important unexplained discrepancies are, for these four Applicants, a yet further factor which militate against the grant of relief.

50.6 The uncertainty over whether there was valid reason for GT Law not putting the Applicants' claims on the register is material, particularly because the claims on proper analysis may be weak or impermissible, as some of them have been demonstrated to be. It may well be that GT Law subjected them to greater scrutiny than has been practicable in all the circumstances by solicitors such as Hugh James, who are late arrivals on the scene of this GLO, and therefore may not be aware of many of its wider aspects. An obvious example of this was the estate claims issue.  This uncertainty is therefore a factor in the reasoning not to accede to the applications. It also goes to potential prejudice to the Defendant who, if the GLO succeeds may spend resources weeding out individual claims which should fail.

51. I now turn to factor (d) set out in paragraph 54 above. I repeat that the breach was serious and significant. That makes it less likely that relief will be granted unless there is a good reason for the breach. I have dealt with that second stage in some detail and have found there is no good reason. I have considered above the circumstances of the case and especially those to which I need to give particular weight. All these circumstances have been considered, in accordance with CPR rule 3.9(1) so as to enable the Court "to deal justly with the application". I have come to the clear conclusion that relief from sanctions should not be granted. There are many factors as set out above which militate against the granting of relief. I add that, while the cut off date in this litigation has not been regarded as a trip wire, as can be seen from the two earlier grants of relief in respect of allowing applications, nevertheless, to quote paragraph 30 of Thirlwall J's judgment in the PIP Breast Implant Litigation, to grant these applications "would undermine the discipline of this litigation. The cut off date would be rendered meaningless."
52. For those reasons the applications are dismissed.
APPLICANTS' CHRONOLOGY

 

         

4/11/13              Group Litigation Order

            30/4/14              Cut-Off date for entry on the register

09/10/14             GT Law into Administration ? Administrator = Quantuma LLP ?    Claims transferred to IC Law

December 2015             Series of public meetings in Kenya/copies of 30 GT Law        retainers provided/Claimants indicate wish to transfer instructions to Hugh James

23/12/15             Letter Hugh James to IC Law requesting transfer of 10 files (unanswered)

            12/1/16              Further letter from Hugh James to IC Law requesting files

                                       (unanswered)

            12/2/16               Phone call Hugh James to IC Law 

12/2/16              E-mail from Hugh James to IC law requesting files (unanswered)

            16/2/16              Phone call form High James to IC Law -- informed relevant

  fee-earners not available

            16/2/16              E-mail from Hugh James to IC law requesting files

24/2/16               IC Law indicate they are going to report Hugh James to the    SRA

17/3/16               IC Law confirm by telephone that the 10 files requested will now be delivered

            23/3/16               5 files received

            6/4/16                3 further files received from original 10 files

7/4/16                 E-mail from IC Law indicating that they have never received files for the 2 missing clients from the 10 requested

7/4/16                 Hugh James ask Administrator to confirm what has become of the 2 missing files

7/4/16                 Administrator confirms that all GT Law files relating to Kenyan Emergency Litigation were assigned to IC Law

            15/4/16              Request for all remaining files held by IC Law

            27/4/16              Letter from IC Law ? they are notifying the SRA

            May 2016          4 Partners from Hugh James attend public meetings in Kenya

18/5/16               Tandem Law confirm that 69 names on 2 lists provided by Hugh James could not be matched with entries on the Group Register

            14/6/16               Letter from SRA to Hugh James requesting information

29/6/16               Response from Hugh James to SRA providing requested   information

7/9/16                 Hugh James write to SRA requesting an update on the investigation as Hugh James unhappy to take further steps until SRA have concluded investigation

17/10/16             E-mail from SRA confirming no action being taken against Hugh James

            25/10/16            Hugh James letter to IC law requesting release of client files

17/11/16             Hugh James letter to IC Law stating that proceedings for    delivery up would be commenced if files not provided

22/11/16             Part 8 Proceedings for delivery up lodged with Senior Courts Office ? 331 files

            30/11/16            Current Application issued

2/12/16               Part 8 Claim Form Issued ? listed for hearing on 10/1/17   before Master Gordon-Saker

3/1/17                 E-mail form Hugh James to IC Law requesting the files be delivered up

            3/1/17                Administrator agrees that IC Law will deliver up the files the

                                      files the subject of the Part 8 claim ? hearing on 10/1/17

                                      adjourned to 1^st open date after 14 days by consent

13/1/17               289 files delivered to Hugh James ? late afternoon.  Number of additional files received over following week ? 36 files not received ? including the 33 files the subject of this application

            14/1/17              Hugh James commence review of files delivered

16/1/17               IC Law suggest that they have never been in possession of the 33 files the subject of this application

            17/1/17              Hugh James conclude review of the files

22/1/17 - 27/1/17         5 Partners from Hugh James travel to Kenya & meet 200 clients for whom files have now been now received ? statements taken ? including from 24 of the 33 claimants forming the subject matter of this application

16/2/17               Hugh James receive 8 files from IC Law in electronic format ? 7 of which are linked to the 33 claimants forming the subject matter of this application.

w/c 26/2/17        Partners from Hugh James travel to Kenya & meet the remaining 9 claimants of the 33 who form the subject matter of this application. 




SCHEDULE
Personal Claims for Physical Injury

Applicant Number	Applicant Name
1	Esther Mwihaki Mwangi
4	Juma Makanga
5	Kaome Njara (1)
7	Loise Wairimu Kinuthia  (1), (2)
9	Makovu Kilelo
12	Masyuko Nyenze
13	Mbeneka Kasyuki
15	Michael Ndenderu Waithaka
16	M'munyua M'twamwari (2)
17	Mungania Kanampiu (1)
19	Musyimi Mulwa (1)
26	Paskwalina Kanyore M'mugambi (2)
31	Ziphorah Nkunu Samson
Total 13




Personal Claims for Physical Injury together with a Separate Estate Claim




Applicant Number	Applicant Name	Relative and Date of Death
8	Madalina Muthoni Francis	Husband, date of death unknown
10	M'arimi M'kiriinya	Father, died 1954 (2)
11	Martha Muthaga Atanacio	Husband, date of death unknown (2)
27	Priscilla Wayua Mutiso	Husband, date of death unknown (1)
30	Waviti Kituto	Husband, died 2010 (1)
Total 5




Estate Claims Only




Applicant Number	Applicant Name	Relative and Date of Death
2	Esther Ndunguti Makanga	Husband, died 1964
3	John Njuguna Mugo	Mother, died 9 June 2014
6	Kinuu Mbevi Nzyoka	Husband, died in Emergency
18	Timothy Kitili Munywoki	Father, died 2013
20	Mary David Musyoki	Mother, died 2000
21	Paul Kyard Ndisya	Father, died 2015
22	Ndundu Kyengo	Husband, date of death unknown
23	Ndunge Ngwili	Husband, died soon after released from detention during the Emergency
24	Ngene Kamende	Husband, died 1979-1989
28	Salome Wanjiru Kamau	Husband, died during Emergency
29	Syukwaa Kimuyu	Husband, date of death unknown
32	Angelica Ngito Solomon	Siblings and Parents, died during the Emergency (2)
33	Kasikwa Kinamu Mbuvi	Husband, died 1960s  (2)
Total 13




(1): Date of birth does not match ID card.
(2): File obtained from GT Law where evidence of reasons for not proceeding with claim.
NOTE: Applicant No 25, Nzioka Ndambuki James says he was arrested and taken to prison in Moshi where he was detained for five months. He was not beaten. There is no allegation of physical injury.