Permission to Appeal Refused: Kimathi & Ors v Foreign & Commonwealth Office [2018] EWCA Civ 2213

We previously reported on the Kenya Emergency Group Litigation proceedings in edition 242 of BC Disease News (here). In Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB), Mr Justice Stewart refused to exercise his discretion, afforded by s.33 of the Limitation Act 1980, to exclude the relevant limitation period. As a result, one of the test claims, ‘TC34’, was brought out of time and could no longer proceed.

Last week, the Court of Appeal refused permission to appeal the High Court ruling.

The appeal was dismissed, predominantly for the reason given in Lord Justice Longmore’s concluding remarks, at paragraph 19:

‘... this court will not interfere with that exercise of discretion unless the judge has misdirected himself in law, taken into account irrelevant matters, failed to take account of relevant matters or has made a decision which has exceeded the generous ambit within which reasonable disagreement is possible, see principle 13 in Carroll’.


The rationale behind only interfering when a judge has made an ‘error of principle’ is to avoid the risk of allowing an unfair claim to reach trial. Longmore LJ considered such an eventuality to be ‘the worst of all possible worlds’.

Sir Rupert Jackson agreed.

Full text judgment can be accessed here.