The question of whether the Court should exercise its discretion to allow a statute-barred claim to continue was considered by the High Court in its recent judgment in Kimanthi & Others v Foreign & Commonweath Office (2018).

The Claimant, a test Claimant in group litigation, sought to persuade the Court to exercise its discretion, provided by s.33 of the Limitation Act 1980, to allow her claim to continue.

The claim dated back to the time of the Mau Mau Emergency in Kenya. The Claimant alleged that she had been assaulted and beaten by British soldiers and the police whilst being villagised, i.e. moved from her home village and forced to live in another, then move on from that village to two others. The incidents were alleged to have taken place in the 1950s and proceedings were commenced 54 – 57 years after expiry of the limitation period.

In considering whether to allow the claim to continue, the Court considered in detail the test set out in s.33 of the Limitation Act 1980, including the steps taken by the Claimant to obtain legal advice, the impact of delay on the cogency of the evidence, the prejudice to the Claimant if discretion was not exercised and the prejudice to the Defendant if it was.

Whilst not highly educated, the Claimant's lack of sophistication was not a good reason for her delay in seeking legal advice.

Although she had given two statements, the cogency of the Claimant's evidence, which contained a number of inconsistencies, had deteriorated over the passage of time. In contrast, despite attempts to trace relevant documents and a large number of witnesses, the Defendant was not only unable to produce evidence, but was also unable to ascertain the evidence which would have been available had the claim been presented within the limitation period.

The Court's refusing to exercise its discretion would prevent the Claimant from pursuing her claim, but the level of prejudice caused to the Defendant by the delay was such that it would have been unjust and inequitable to allow the claim to proceed.

The judgment is a reminder that the burden of persuading the Court to exercise its discretion rests with the Claimant, but the Defendant has the burden of proving the level by which the cogency of evidence has been affected and it has been caused prejudice by the delay. The Defendant needs to show this by way of a 'Limitation Statement' – a witness statement from an appropriately involved person, detailing the steps taken to locate documents and evidence. In this case, the Defendant's legal team had taken steps to trace over 50 potential witnesses and had evidence that a number of them had died over recent years; the level of investigation assisted the Defendant in proving the prejudice it had suffered and persuading the Court not to exercise its discretion.