Kimathi & Ors v Foreign & Commonwealth Office [2018] EWCA Civ 2213 (09 October 2018)

Kimathi & Ors v Foreign & Commonwealth Office [2018] EWCA Civ 2213 (09 October 2018)

The judge exercised his discretion correctly under section 33 of the Limitation Act 1980, finding that the prejudice to the defendant from the delay and loss of evidence made a fair trial impossible, and this outweighed any prejudice to the claimant. No error of law or approach justified appellate interference.

Citation
[2018] EWCA Civ 2213
Parties
Appellants: Kimathi & Ors; Respondent: Foreign & Commonwealth Office
Jurisdiction
England and Wales
Judgment Date
09 October 2018
Procedural Posture
Civil Appeal / Application for Permission to Appeal From High Court Judgment
Outcome
Application for permission to appeal dismissed
Legal Topics
Limitation of Actions, Discretion to Disapply Limitation, Trespass to the Person, Fair Trial, Prejudice From Delay
Civil Procedure Tort Law Human Rights Limitation of Actions Discretion to Disapply Limitation Trespass to the Person Fair Trial Prejudice From Delay

Case Brief

Summary, issues, holding and outcome

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Parties

Kimathi & Ors

Appellants

Foreign & Commonwealth Office

Respondent

Procedural Posture

Civil Appeal / Application for Permission to Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the judge erred in refusing to disapply the Limitation Act 1980 under section 33 for claims of trespass to the person arising from alleged torture and rape during the Kenyan Emergency.
  2. 2 Whether the judge failed to properly consider reasons for delay, the date the action should have been brought, the cogency of evidence, and even-handedness in assessing prejudice.

Ratio Decidendi

The judge exercised his discretion correctly under section 33 of the Limitation Act 1980, finding that the prejudice to the defendant from the delay and loss of evidence made a fair trial impossible, and this outweighed any prejudice to the claimant. No error of law or approach justified appellate interference.

Court Disposition

Application for permission to appeal dismissed

Orders

  • The application for permission to appeal by TC34 against the judgment handed down on 2 August 2018 is dismissed.