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Is this the end of limitation periods in human rights and torture cases

Daniel Leader article published on Lexis PSL

Posted on 18 October 2012

Mutua and others v Foreign and Commonwealth Office

[2012]  EWHC 2678 (QB), [2012} All ER (D) 48 (Oct)

England; Wales

[2012] EWHC 2678 (QB), [2012] All ER (D) 48 (Oct)

Decision Date
5 October 2012

Queens Bench Division

McCombe J

Judgment for the claimants

Richard Hermer QC, Phillippa Kaufmann QC, Alex Gask and Henry Witcomb (instructed by Leigh Day & Co) for the claimants; Guy Mansfield QC, Alex Ruck Keene and Jack Holborn (instructed by the Treasury Solicitor) for the defendant; Elizabeth-Ann Gumbel QC (instructed by Redress) as the intervener

Related Legislation
Limitation Act 1980

Related Cases

KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] All ER (D) 162 (Feb); Cain v Francis; McKay v Hamlani [2008] All ER (D) 201 (Dec); AB v Nugent Care Society; R v Wirral Metropolitan Borough Council [2009] All ER (D) 308 (Jul); McDonnell v Walker [2009] All ER (D) 259 (Nov); Various claimants v Catholic Child Welfare Society [2010] All ER (D) 241 (Oct) applied; JGE v Trustees of the Portsmouth Roman Catholic Diocesan [2012] All ER (D) 119 (Jul).

Limitation of action - Court's power to override time limit in personal injury or fatal accident claim - Exercise of discretion - General guidance as to exercise of judicial discretion Claimants tortured by British Colonial authorities seeking to bring personal injury claim out of time - Claimants applying to disapply the normal limitation period - Whether court should exercise discretion and disapply limitation - Limitation Act 1980, s 33 

In recent years the court has been less reluctant to exercise its discretion under the Limitation Act 1980. Daniel Loader, partner at Leigh Day & Co discusses the current trend in the light of the High Court's decision in the Mutua case.

The Queen's Bench Division allowed the Mutua and others, who were tortured by British colonial authorities, to proceed with their legal claims against the UK government following the exercise of discretion under s 33 of the Limitation Act 1980.

What are the key features of this case?

This decision is relevant on two fronts.

It is now clear the British government is potentially liable for colonial era abuses. It cannot, as it has claimed in the past, pass on liability to the new colonies themselves.

In limitation terms, it is highly relevant the judge said the central allegations of these cases could be determined on the basis of the extensive documentary trail and the considerable amount of existing witness evidence. The court was also unconvinced the government had looked closely enough at the evidence of the potential witnesses who were available.

In light of the judge's detailed appreciation of the evidence, which was considered over two two-week hearings, the government will find it difficult to successfully appeal. The idea the Court of Appeal will second-guess his appreciation of the totality of the evidence and what it amounts to is very doubtful.

How did the court address the issues surrounding  limitation?

It is interesting to note, as there was such a significant  amount of evidence in this case pointing to human rights abuses,  the government conceded the claimants had been tortured by the  colonial authorities. Thus a lot of the fact-finding that would  normally be difficult to establish in a case such as this was  already dealt with.

The government also admitted the time delay was excusable due to the particular factors in this case--Mau Mau victim support groups and associations were banned from meeting in Kenya and the topic was a taboo subject until 2003.

The only issue the judge had to determine was whether a fair trial was possible. The government argued a fair trial was impossible, as so much time had elapsed and key decision-makers from the colonial era were no longer alive to give evidence. The judge, however, was satisfied there were sufficient witnesses and the documentary trail was so extensive, the issues could still be determined.

What impact will this judgment have on lawyers approaching  cases outside of limitation?

We are seeing a trend in limitation cases post A v Hoare and other appeals [2008] UKHL 6, [2008] 2 All ER

1. If there is strong evidence to support allegations of assault or torture and there is enough surrounding documentary evidence, the courts will think very hard about shutting claimants out from pursuing their claims. This judgment is not an aberration. This comes on the back of a number of lengthy time extensions in historic sexual abuse cases dating back a considerable time that have been allowed to proceed by the courts.

Are we likely to see a floodgate of claims opening for  damages from other victims of human rights abuses at the hands of  former colonial authorities?

Looking at the details of these cases it is difficult to see  how they could be taken forward.

The amount of people affected by colonial abuses in Kenya was exceptional--it is by far the most detailed case documented by historians. Cases brought by other former colonial subjects will be much harder to prove by comparison. The government conceded, in this Kenyan case, the delay in bringing the claims was excusable as it involved illiterate victims. With regards to Aden, Palestine and Cyprus, for example, the courts would be dealing with relatively better-educated and literate individuals. Judges will inevitably ask the question why it has taken them so long to speak out.

As time cannot be extended beyond June 1954 under the  Limitation Act 1980, any abuses before this date are barred.  Claims brought against the British government for abuses which  occurred in Malaya prior to 1952, for example, would be shut out  automatically.

I would not rule out such claims being brought, but fears such  actions could bankrupt Britain are not realistic.

What should lawyers take from this case?

Where there is clear evidence torture and human rights abuses  have taken place, the courts will bend over backwards to allow  those claims to proceed, even when those abuses took place many  years ago.

This article was first published on Lexis PSL on 18/10/2012.