Before :

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Robin Allen QC, Simon Taylor QC, Anthony Bradley & Thomas Coghlin (instructed by Sheridan’s Solicitors) for the Claimants

John Howell QC, Rhodri Thompson QC & Kieron Beal (instructed by Treasury Solicitor) for the Defendants

Hearing dates : 31 Oct, 1-15, 19, 21, 25, 27-29 Nov, 2-9, 11-20 Dec, 6-10 Jan.

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I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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The Honourable Mr Justice Ouseley

Mr Justice Ouseley:

Overview

1. The Chagos Archipelago lies in the middle of the Indian Ocean. It is approximately 2,200 miles east of Mombasa in Kenya and a little over 1,000 miles south by west of the southern tip of India, and so about 1,000 miles east of Mahe, the chief island in the Seychelles, and 800 miles north-east of Port Louis in Mauritius. The largest island in the group is Diego Garcia; its irregular u-shaped sides enclose a large, deep lagoon. The group includes the Salomon islands, the islands of Peros Banhos, as well as a number of smaller islands.
2. The Chagos islands, with Mauritius, were ceded by France to the Crown by the Treaty of Paris in 1814. They were administered by the Crown from Mauritius as its "Lesser Dependencies" along with St Brandon and Agalega, which was about 1,000 miles from the Chagos islands, half way between Mauritius and the Seychelles.
3. Their economy was based on the production of copra and its by-product, coconut oil, from the coconut plantations. During the 19^th century, the freeholds, as it is convenient to call them, passed into the private hands of the companies which ran the plantations, although there was an issue as to whether these private freeholds applied to the full extent of Diego Garcia, Peros Banhos and the Salomon Islands.
4. The companies ran the islands in a somewhat feudal manner. The vast distance from Mauritius left the plantation managers in day-to-day charge; visits by Mauritian officials were rare and the Magistrate was at best an annual visitor. Plantation managers had powers as Peace Officers to imprison insubordinate labourers for short periods, or to detain those threatening to breach the peace.
5. The plantation companies provided the sole source of employment on the islands, save for a meteorological station on Diego Garcia, though a few children, women and elderly people worked as servants for plantation company staff. They did this to earn their rations, although it does not appear to have been a universal requirement that the young and old should work. A few worked for the plantation companies in construction, administration or, perhaps, in fishing.
6. Company shops provided for simple purchases; wages were very low but the companies provided food rations, a small dispensary, very basic medical attention, limited educational facilities and a priest. Their agent, helped by a Mauritius Government subsidy, provided transportation by ship to and from Mauritius for departing or leave-taking workers or for those seeking more serious medical attention; often mothers-to-be went to Mauritius to give birth. The ship brought rations and other necessities or comforts.
7. The abolition of slavery in 1833, and the entitlement of slaves to remain in the colony in which they were freed, meant that many freed slaves had continued to work the plantations.
8. Although in theory from 1838, all Mauritian labourers were on contracts of one to two years’ duration, renewable annually, many plantation workers continued working without a written renewal of their contracts. The contracts could only be renewed in front of a Magistrate on his occasional, supposedly annual, visits but even that was not routinely done, at least in latter years. Contracts were sometimes renewed when a worker returned from Mauritius following leave or a trip for medical purposes.
9. Over time, the plantation workers, whether recruits from Mauritius who stayed on or the descendants of slaves who never left, had families. Some of the children would leave for Mauritius, where relatives might be and to which they looked for a more varied life; they might simply not return. Others would become, from an early age, and after at best the most rudimentary and brief education, plantation workers. They would inter-marry, or marry Mauritian recruited labourers and in turn have families. After the Second World War, Seychelles’ labourers were recruited as well, and some too inter-married, or married existing residents starting families on the islands.
10. The population, then, consisted of three strands, Mauritian and Seychelles contract workers and, to a degree intermingled with them, those who had been born on the islands and whose families had lived there for one or more generations. These latter were known as the Ilois, a term not always used with a precise or commonly agreed definition. Most of them lived on Diego Garcia, the largest island. They now, but again with no precise or commonly agreed definition, describe themselves as "Chagossians", a name which they prefer to "Ilois" because that has come to have pejorative connotations.
11. It is their existence, legal status and rights and what the United Kingdom Government and colonial administrations have believed about them, which lie at the heart of this case.
12. By the early 1960s, the islands’ population was in decline, as low wages, monotonous work, the lack of facilities and the great distance to Mauritius and the Seychelles discouraged recruitment or the retention of labour. The plantations suffered from a lack of investment.
13. In 1962, a company called Chagos Agalega Company Limited was formed in the Seychelles. One of its main shareholders was a Mr Paul Moulinie. The company acquired almost all of the plantation islands, of Diego Garcia, Peros Banhos, the Salomon Islands, and Agalega from the Mauritian companies which had owned them. The company intended to and did run the coconut plantations for the production of copra; it believed that they could be revived and run profitably, notwithstanding years of decline.
14. In 1964, discussions started in earnest between the United States and the United Kingdom Governments over the possible establishment of American defence facilities in the Chagos Archipelago, or other Indian Ocean islands which formed part of the dependant territory of the Seychelles. A joint UK/US memorandum agreed on a course of political action, including the need to separate the requisite dependencies from Mauritius and the Seychelles.
15. The independence of Mauritius was imminent and the independence of the Seychelles was at least anticipated. The United States did not wish its facilities to be dependant on the goodwill and stability of such newly independent countries, whose view of American defence facilities in the Indian Ocean might not have coincided with its own. It proposed that the islands be detached from Mauritius and the Seychelles and formed into another, separate dependant territory. It was recognised that the establishment of a new dependency or colony would attract criticism in the United Nations, even more so were it to be created to facilitate an American military presence in the Indian Ocean. From an early stage, the United Kingdom and United States Governments recognised that the transfer or resettlement of those on the islands would be necessary, both for the effective security and operation of the military facility and to avoid the prospect of the new dependency becoming subject to international obligations in Article 73 of the UN Charter to protect the population and to develop their constitutional rights, perhaps towards independence. Islands populated by contract workers or with an insignificant population which could be transferred or easily resettled were obviously attractive in those respects.
16. In 1964, in pursuit of this objective, a joint Anglo-American survey of the islands including their population was undertaken. Its purpose was not publicised. It found little trace of the once distinctive Diego Garcian community. In 1965, the United Kingdom decided to proceed with the detachment of the islands. Discussions were held between the UK Government and the Governments of Mauritius and of the Seychelles upon the terms of the detachment of the Chagos Archipelago from Mauritius and of Aldabra, Farquhar and Desroches from the Seychelles. Agreement was reached on the detachment of the islands subject to the payment of compensation to the governments, compensation to the landowners and the payment of resettlement costs. The Mauritius Government was to receive compensation of £3m plus the resettlement costs; the Seychelles Government was to be provided with a new civil airport on Mahe.
17. On 8^th November 1965, the British Indian Ocean Territory Order in Council, SI 1965/1920 was made. It established a new colony, the British Indian Ocean Territory. It comprised the Chagos Archipelago, Aldabra, Farquhar and Desroches. The Governor of the Seychelles became its Commissioner. The Order in Council provided its constitution, gave legislative powers to the Commissioner and provided for a general continuance in force of the existing laws applicable in the islands, either Seychellois or Mauritian.
18. On 30^th December 1966, in an Exchange of Notes, the UK and US Governments agreed that the islands should be available to meet their various defence needs for an initial period of 50 years, and thereafter for 20 years, unless either Government gave notice to terminate the agreement.
19. The next stage was for the UK Government to acquire the land interests held by Chagos Agalega Company Limited. At this point, however, the US proposals were neither public nor approved by Congress. It was only a general defence interest which, publicly, underlay the creation of BIOT. If the land interests were acquired, the UK Government still wanted the plantations to operate, to bring in an income to offset the acquisition costs, until the defence facility was definitely proceeding to a known timetable.
20. On 8^th February 1967, the BIOT Ordinance No 1, the Compulsory Acquisition of Land for Public Purposes Ordinance, was made; it empowered the Commissioner to acquire land compulsorily for a public purpose, notably and explicitly the defence purposes of the UK or Commonwealth or other foreign countries in agreement with the UK.
21. On 22^nd March 1967, the Commissioner made the BIOT Ordinance No 2, the Acquisition of Land for Public Purposes (Private Treaty) Ordinance, enabling him to acquire land by agreement for the same public purposes. It was under this power that, on 3^rd April 1967, Chagos Agalega Company Limited vested its lands in Diego Garcia, Peros Banhos, the Salomon Islands and others in the Crown, for £660,000. The Crown also acquired Farquhar and Desroches; it already owned Aldabra.
22. However, in order to maintain an income and to delay the need for resettlement of the population for as long as possible, the Commissioner granted a lease of the islands to Chagos Agalega Company Limited on 15^th April 1967. It was terminable on six months’ notice. The company gave notice in June 1967 for tax reasons, created by the compensation payment. Moulinie & Co (Seychelles) Limited, for which Paul Moulinie and his nephew Marcel Moulinie worked, took over the management of the plantations in January 1968. There was no signed management agreement, but the terms of an unsigned written agreement were put into operation.
23. On 12^th March 1968, Mauritius became independent. By its constitution, Mauritian citizenship was conferred on everyone born in Mauritius by that date, including those born in that part of BIOT which had previously been part of the colony of Mauritius. They would also remain citizens of the United Kingdom and Colonies. This dual citizenship was not publicised at the time. Before the creation of BIOT, and yet more so thereafter, it was becoming clearer than perhaps had been thought in 1964, following the survey report, that there were inhabitants of Chagos who had been born there and some were second or third generation Ilois. This was a problem, and the morality and lawfulness of their removal in principle, of its manner, of the way in which others who had left voluntarily were unable to return to the Chagos and of their subsequent treatment has been debated for more than 30 years.
24. Thus, from 1964 onwards, the UK Government had been dealing with a number of aspects: the operation of the plantations, the ascertainment of the numbers and status of those working and living on the islands, the contemplation of their removal and resettlement somewhere, the means of achieving those ends, political relations with Mauritius, in particular over those matters, and suspicions or hostilities faced or risked in the UN.
25. To the plantation workers, little of this would have been known. They, and certainly the Ilois, were poorly educated, very largely illiterate, Creole speakers who lived a simple life with few modern facilities, dependent on their employer for their jobs and the necessities of life; they led no independent existence. The Moulinies were aware of more of the background. Marcel Moulinie gave evidence of telling them in January 1966 and of his uncle telling them in May 1967 that they might be asked to leave to make way for an American base.
26. In 1967 and 1968, on two voyages, the "Mauritius" brought plantation workers, including Ilois, to Port Louis in Mauritius. They came on leave, or on the expiry of their contract or for medical reasons. The "Mauritius" was operated by Rogers & Co, the Moulinie & Co agent in Port Louis; half the cost of it was met by the Mauritius Government, as it provided the means of transport between Mauritius and the various dependant islands. When those who had arrived in Mauritius in 1967 and 1968 eventually tried to return to the Chagos islands in 1968 and later, they were refused passage and were unable to return. The Mauritius Government made representations to the UK Government in September 1968 about the fate of some of those stranded in Mauritius. These Ilois are among the Claimants, asserting that the UK prevented their return by instructing Moulinie & Co or its shipping agent not to permit their return, and asserting that that was unlawful. In July 1968, the "Nordvaer", a 500-ton cargo ship, had been acquired by the BIOT Administration to connect the Seychelles, where it was based, and BIOT; the shipping link between Mauritius and Chagos largely ceased.
27. On 5^th July 1968, the UK Government was told that the US Government had decided to proceed with an "austere" communication and other facilities on Diego Garcia. Plans which hitherto had been uncertain in all respects were by now becoming more certain, but they were still not publicly known. It was an important decision.
28. Approval for the US proposal was sought from the Prime Minister in submissions from the Foreign Office and the Commonwealth Office, drawing upon the advice of officials including legal advisers and the BIOT Commissioner, among others, (paragraph A144). The submission said that some 128 or 34% of the inhabitants of Diego Garcia were second-generation inhabitants. Various possibilities for their resettlement and the resettlement of other workers were canvassed. Agalega, Peros Banhos and the Salomon Islands were seen as possibilities because of their coconut plantations, working in which was the only skill which the Ilois and many other contract workers possessed. But the US was still unable to say whether any other islands would be required or when; and even after acceptance of its request in September 1968, it did not want its proposals publicised. This, unsurprisingly, discouraged commercial investment in other island plantations. Even if no defence facilities were ultimately constructed, the UK Government considered that it would be useful to avoid there being any permanent inhabitants in BIOT, so as to preclude obligations arising under Article 73 of the UN Charter or any other costs if the plantations were to close for economic reasons.
29. A further important submission, vital for these proceedings and backed by extensive working papers, was made to the Prime Minister in April 1969 (paragraphs A226-239). It covered the relevant issues comprehensively and without deceit or excess zeal by any officials. It contemplated the complete evacuation of BIOT. It was approved by the Prime Minister, the Chancellor of the Exchequer and the Secretary of State for Defence.
30. Discussions about resettlement options continued through 1969 and 1970; a number of ideas were canvassed and assessed but no firm conclusion was reached. The uncertain future of the islands of Peros Banhos and the Salomon Islands, as possible defence facilities, inhibited investment in them; the question of who would provide investment in plantations in Agalega was long discussed and remained unresolved for years. Resettlement in Mauritius or the Seychelles were options also to be pursued. The need for immigration legislation to back up the Government’s stated position as to the absence of an indigenous population, as well as to prevent people entering BIOT after the islands had been evacuated came to the fore. The nature of the powers, statutory or private land ownership powers, which would be involved in ensuring the evacuation of the islands, was also considered.
31. In December 1970, Congressional approval for the construction of the defence facility was announced. The US Government had told the UK Government shortly beforehand that it wanted Diego Garcia evacuated by July 1971.
32. The BIOT Administrator, Mr Todd, visited the islands in January 1971. On 24^th January 1971, he told the assembled inhabitants of Diego Garcia that "we intended to close the island in July". He said that Peros Banhos and Salomon could run for some time. This was seen by him as a temporary solution to resettlement whilst longer term arrangements were put in place.
33. The longer term arrangements were seen as resettlement in the Seychelles of the contract workers, who were predominantly Seychellois, and in Mauritius, subject to Mauritius Government approval, or Agalega, of the families of Mauritian origin. Discussions between the UK and Mauritius Governments began in March 1971 when that approach was accepted, but a resettlement scheme remained to be determined and implemented.
34. On 16^th April 1971, the BIOT Commissioner enacted the Immigration Ordinance 1971, No 1 of 1971. It made it unlawful for someone to enter or remain in the territory without a permit; it provided for the Commissioner to make an order directing that person’s removal from the territory. It was given the minimum lawful publicity. There was an issue as to whether this provision was ever in fact relied on by the UK Government or the BIOT Commissioner in the evacuation of the islands.
35. Throughout the first half of 1971, internal discussions took place between the Foreign and Commonwealth Office, the Overseas Development Administration, the Treasury and externally with the High Commission of Mauritius, the Mauritius and Seychelles Governments and the US Embassy, seeking to establish work and resettlement opportunities and schemes. The potential of Agalega was raised.
36. In July 1971, the "Nordvaer" left Mahe to effect the evacuation of Diego Garcia, arriving on 25^th July 1971 with engine trouble. It took some Ilois to Salomon and Peros Banhos before limping to Mahe, on the Seychelles. The "Isle of Farquhar", a schooner belonging to Moulinie & Co, was chartered, arriving in Diego Garcia early in September and then sailing to Peros Banhos and Salomon with mainly Ilois families. The Ilois left behind their homes, their pets and domestic animals, their larger items of moveable property, taking only a small quantity of personal possessions. They regarded Diego Garcia, rather than the Chagos Archipelago, as home. There is no evidence of physical force being used, but most of their dogs were rounded up and gassed or burnt in the "calorifer" used in copra production. The sadness and bitterness was continuing and evident. The task of closing down Diego Garcia was handled on the island wholly or almost wholly by Moulinie & Co and not by the BIOT Administration.
37. In early September, the "Nordvaer" arrived in Diego Garcia to take some wild horses, which the BIOT Administration had organised a team to take to the Seychelles, copra, equipment and the remaining Seychelles workers and Ilois who did not want to go to Peros Banhos or Salomon.
38. The conditions of the voyage to Mahe were dreadful and engendered many bitter memories of the horses being better cared for than the passengers. The Ilois numbered 7 men, 6 women and 17 children, outnumbered by Seychellois. In Mahe, they were accommodated in the unused section of the prison, between arrival on 30^th September and departure on the "Mauritius" for Port Louis, Mauritius, on 8^th October 1971. Some Ilois, receiving medical treatment, were left behind.
39. The evacuation of Diego Garcia was completed by the "Isle of Farquhar" which arrived in Mahe on 31^st October 1971 with 9 Seychellois and one Ilois woman and child.
40. The population of Peros Banhos and Salomon was now 65 men, 70 women and 197 children, of whom 18 men, 18 women and 49 children had been transferred from Diego Garcia. In January 1971, the FCO thought that there had been 37 Ilois families on Diego Garcia.
41. About 100 Seychellois labourers had returned to the Seychelles. But the Mauritian authorities were estimating that there were about 1,000 Ilois already in Mauritius, evacuated, more recently stranded or looking to return after a longer absence, having arrived since the formation of BIOT in 1965.
42. Resettlement discussions continued meanwhile with the Mauritius Government; how much should be paid, to whom, and for what purpose remained unresolved. The focus at this stage was on resettlement of as many as possible on Agalega where Moulinie & Co operated coconut plantations, and on maintaining those on Peros Banhos and Salomon for as long as possible. Less complex discussions in respect of Seychelles contract workers were undertaken with the Seychelles Government. Mauritius and the Seychelles also faced internal difficulties with the receipt of funds which might appear to favour one group of residents over another and give them employment advantages over other poor inhabitants grappling with high unemployment. The cost of setting up BIOT and of constructing the new civil airport on Mahe had exceeded their financial allocations; the UK Government debated which Department should pay for any resettlement costs which had not been budgeted for.
43. It was not until 4^th September 1972 that a payment of £650,000 was agreed between the UK and Mauritius Governments in discharge of the obligation undertaken in 1965 to meet the cost of resettlement of those displaced from the Archipelago since 1965 and who were yet to come. It was paid in March 1973.
44. The Seychelles contract workers were simply paid the balance of the contract sums due to them.
45. Meanwhile, the operation of the coconut plantations and copra production on Peros Banhos and the Salomon Islands was becoming economically unsupportable and was running down. The prospect of further closures and moves was becoming clearer to the Ilois; they were becoming resigned and apathetic. Those on Salomon were told to move to Peros Banhos in May 1972, so as to concentrate population and production on one island, but they refused. In June 1972, the "Nordvaer" sailed to Mahe with 53 Ilois (15 men, 15 women and 23 children) from Peros Banhos and Salomon; they went on to Mauritius. They were warned that they might not be able to return.
46. In November 1972, the "Nordvaer" took a further 120 Ilois (73 adults and 55 children) from Peros Banhos and Salomon to Mauritius, arriving on 14^th November. By now, Salomon had closed down.
47. In October 1972, a UK/US Exchange of Notes agreed to the construction of a limited naval base at Diego Garcia. It was no longer economic for Moulinie & Co to run copra production on Peros Banhos; the management fee which they received from BIOT was too small. Paul Moulinie and the BIOT Administrator, Mr Todd, sought closure and an evacuation in March or April 1973.
48. On 27^th April 1973, the "Nordvaer" left Peros Banhos for Mauritius carrying 26 men, 27 women and 80 children, but on arrival at Port Louis, they refused to disembark: they had nowhere to go, no money and no employment. They received an offer of accommodation in the Dockers Flats area of Port Louis and a small sum of money.
49. On 26^th May 1973, the "Nordvaer" left Peros Banhos for Mauritius via the Seychelles; it arrived on 13^th June 1973 carrying 8 men, 9 women and 47 children or infants, according to the shipping list. This was the last of the population; the plantations closed.
50. The Ilois were experienced in working on coconut plantations but lacked other employment experience. They were largely illiterate and spoke only Creole. Some had relatives with whom they could stay for a while; some had savings from their wages; some received social security, but extreme poverty routinely marked their lives. Mauritius already itself experienced high unemployment and considerable poverty. Jobs, including very low paid domestic service, were hard to find. The Ilois were marked by their poverty and background for insults and discrimination. Their diet, when they could eat, was very different from what they were used to. They were unused to having to fend for themselves in finding jobs and accommodation and they had little enough with which to do either. The contrast with the simple island life which they had left behind could scarcely have been more marked.
51. There was no resettlement scheme when they arrived. Various schemes, including pig breeding, of improbable viability and in which the Ilois had no experience, were debated over time before being abandoned as unworkable. Rampant inflation between 1973 and 1978 substantially reduced the value of the payment of £650,000. Nothing concrete was done with it for years despite the pressing housing needs of the Ilois. The £650,000 paid to the Mauritius Government in 1973 was eventually expended, with accrued interest, in 1977 and 1978, not just to the 426 families who had been identified as having left the Chagos since 1965, but also to a further 169 families who had returned earlier, making 595 in all. It was paid in the form of a cash distribution. There was nothing for Ilois on the Seychelles.
52. The Ilois had, however, begun to organise themselves early on to improve their conditions and some Mauritian and Seychellois politicians became interested in their plight, whether to obtain votes, or out of genuine concern or as a means of criticising the Government of the day.
53. From an early stage, in 1974, Ilois were petitioning the UK Government for permission to return to Diego Garcia to tend their forefathers’ graves; the Government said that it would consider this. But it refused to intervene with the Mauritius Government in relation to their resettlement.
54. In February 1975, Michel Vencatessen issued a writ in the High Court in London against the Attorney General, for the Secretaries of State for Defence and for Foreign and Commonwealth Affairs. Michel Vencatessen had left Diego Garcia on the "Nordvaer’s" last voyage. Legal advice had been taken from Sheridans, solicitors, who, in turn, had consulted notable English barristers. He received legal aid. He had been put in touch with Sheridans through Gaetan Duval, an important Mauritius lawyer-politician. It was not in form a representative, let alone a group, action although in its inception and conduct it had a number of those features.
55. The writ claimed damages, aggravated and exemplary, for intimidation, deprivation of liberty and assault in the BIOT, Seychelles and Mauritius in connection with his departure from Diego Garcia, the voyage and subsequent events.
56. The action proceeded through the 1970s with a range of distinguished advocates on both sides. Discovery was to be particularly complex. By 1978, however, it was clear on both sides that the litigation, in practice, had to be regarded as a form of group litigation. The UK Government made an open offer to settle all the claims of all the Ilois for £500,000 plus costs in February 1978.
57. By mid-1978, Sheridans, following a visit to Mauritius, had obtained instructions on a wider basis, "on behalf of all the Ilois", they said. But the issues of whom Sheridans represented and what their status was as Ilois in relation to any offer, together with the mechanics of how all the potential claims of the Ilois other than Mr Vencatessen could be resolved, remained thorny ones.
58. Legal aid was not available in this action for Sheridans to advise all the Ilois. The Treasury Solicitor agreed to pay Bernard Sheridan’s costs of going to Mauritius to represent the Ilois. Bernard Sheridan went to Mauritius in October 1979, taking with him the offer from the UK Government which had been raised to £1.25m, and 1,000 copies in English, of a form of quittance for the Ilois’ claims, together with a French translation, (A480). He had received advice from Louis Blom-Cooper QC that the settlement was fair in view of the difficulties in the litigation, and that a trust fund should be set up to oversee its distribution.
59. Publicity was given to his visit; he held a number of meetings with the Ilois; over 1,200 quittances were signed. But there was considerable hostility from some Ilois who objected to any renunciation of their right to return to Diego Garcia. He was unable to conclude his work and he returned to London to report.
60. Various committees of Ilois now joined together to become the Joint Ilois Committee, which comprised the older committee of Christian Ramdass with which Mr Vencatessen had been associated, the Beau Bassin Committee which had led the rejection of the quittances brought by Mr Sheridan, and the Ilois Support Committee of Kishore Mundil, a Mauritian politician.
61. Mauritian politicians had a particular interest in the renunciation by the Ilois of any right to return, as well as in using the fact, manner and purpose of the excision of the Chagos from Mauritius as a means of attacking the Government of Sir Seewoosegar Ramgoolam, which was in power from 1961 through independence until 1982. This interest was in the way in which the continued right of Mauritian citizens to return to the Chagos islands could be used as a means of asserting Mauritius’ entitlement to the islands when the defence interests ceased.
62. The Joint Ilois Committee wished to continue negotiations. On the oral evidence given to me by those involved, it was said that most of the documents of this era did not represent accurately what they wished to say and had been written without their authority and indeed deceitfully by those whom they now realised had taken advantage of them, acting only as politicians pursuing their own political ends. However, they were taken at face value by Sheridans and the Treasury Solicitor.
63. In March 1980, a petition with 800 thumbprints or signatures of Ilois was sent by the JIC to Sheridans with a detailed letter of instruction. The renunciation of the right to return to Diego Garcia in exchange for a proper amount of compensation was proposed by the Ilois, at least on paper.
64. In July 1980, the Ilois who had led the rejection of the offer in 1979 set up a new committee, the Committee Ilois Organisation Fraternelle, CIOF (sometimes CIF). They would not renounce their right to return. The Front National de Soutien aux Ilois was formed from a number of groups including the JIC.
65. The formation, splitting, reformation of Ilois committees at this time reflected not just the differing locations of groups of Ilois in Port Louis and Mauritius, but also differing views as to the extent to which renunciation of the right to return should be resisted at the price of delaying a settlement or whether an enhanced sum would justify renunciation. Political protest and hunger strikes by women became a feature of the campaign by the Ilois for what they saw as their rights. The various Ilois committees made claims for £8m in compensation from the UK Government in the spring of 1981. In April 1981, the Mauritian Government agreed with Ilois representatives to send a Government delegation of three Ilois representatives and three representatives from the Mauritian Government to negotiate with the UK Government.
66. Meanwhile, the Vencatessen litigation and the looming contests over the disclosure of documents provided a continuous spur to the London end of the negotiations over a wider settlement. In April 1981, an Ilois delegation had met a visiting UK Minister in Mauritius and had discussed with her compensation, the Vencatessen case and nationality issues. Negotiations were to continue in London in June 1981; the Mauritius Government agreed that Christian Ramdass should join the delegation as the representative of Mr Vencatessen. But before the delegation arrived in London, the CIOF decided to instruct Bindmans, solicitors.
67. The Mauritian delegation met with the UK Government in London at the end of June and the beginning of July, over four days. The Government increased its £1.25m offer with aid of £300,000, but this was not accepted. Negotiations broke down amidst powerful criticism of the stance taken by the UK Government towards the plight of the Ilois. Bindmans took the advice in consultation of John Macdonald QC. Mr Vencatessen wanted to press forward with his claim. This was the only non-political lever which the Ilois had. But Ilois demonstrations and rallies continued in Mauritius.
68. In November 1981, the CIOF said that it would be prepared to accept £1.25m now as a part payment towards the £8m still claimed. By early December, the CIOF, recognising that any settlement would have to be supported by the whole Ilois community, nonetheless put forward a figure of £6m as further and final compensation, without abandoning its contention that £8m was fully justified. Various Ilois groups met the High Commissioner to Mauritius to press their urgent cause; he made the same point: any settlement had to have the support of the whole community. No-one wanted a repeat of the events in 1979 when an agreement appeared to have been reached with many Ilois, but not on terms which were acceptable to all shades of opinion. As at other times, the definition of an Ilois and an assessment of their numbers were problematic for both sides, because that had a crucial effect on the calculation of compensation on a per capita basis as well as reflecting on the numbers whose agreement had to be obtained once they had been identified. Bindmans, advising the CIOF, were investigating the rights which the Ilois had over land, in contrast to the Vencatessen case which focused on tortious aspects. Sheridans pressed on with the case which was seen as capable of having a beneficial effect on the Ilois as a whole.
69. The UK Government recognised that further talks had to take place. Their resumption in Mauritius was announced and they restarted on 22^nd March 1982. The Mauritian Government delegation again included representatives of the Ilois. Stephen Grosz, a solicitor with Bindmans, and John Macdonald QC were present to advise the CIOF, to which the majority of Ilois delegates belonged, but they saw themselves as advising the Ilois generally because of the extent to which the CIOF represented their interests; they were paid for by the Mauritius Government. Mr Ramdass was again a delegate because of the Vencatessen case. The UK Government’s opening offer was £2.5m based on 426 families or 1,150 people who had left Chagos for Mauritius after the creation of BIOT. The sum was calculated by reference to the cost of a plot of land, the building of a house, and a capital sum for the establishment of a business. The disbursing of the fund was to be managed by a trust fund.
70. During the negotiations, one of the issues had been the way in which the language of the agreement and the settlement of claims might affect the right to return asserted by the Ilois and the assertion of Mauritian sovereignty over the Chagos islands. A second issue was as to how the UK Government could be satisfied that, if it were to pay over the settlement sum, there would be no further claims. The nature and effectiveness of those provisions was at issue in this case. But it was clearly understood by the UK and Mauritius Governments, if by no others, that the Vencatessen litigation had to be withdrawn, if a settlement with the Ilois as a whole were to be reached.
71. In the course of negotiations, the offer was raised twice, ultimately to £4m in addition to the £650,000 previously paid to the Mauritius Government. The Mauritius Government also agreed to put in land to the value of £1m. The English lawyers advising the Ilois recommended acceptance of the offer as a fair settlement. A trust fund was to be set up to disburse the monies.
72. On 27^th March 1982, the agreement between the two Governments was initialled; it was also initialled by Ilois representatives. Between the initialling of the agreement and its formal signing, the CIOF pressed the view of its English legal advisers that the agreement provided for compensation, but did not affect Mauritian sovereignty. It became a formal agreement signed by the two Governments on 7^th July 1982 in the presence of Ilois representatives. It contained provision for Ilois to sign individual renunciation forms, for the retention of some money against further action and for a Mauritius Government indemnity, (paragraph A580).
73. Varying degrees of satisfaction were expressed at the agreement; as a compromise, not everything that everyone had wanted had been achieved. Widespread publicity was given to the agreement and to the formal signing ceremony.
74. On 30^th July 1982, the Ilois Trust Fund Act 1982 was enacted by the Mauritius Parliament. The Trust Fund was to be managed by a Board of Trustees which included five representatives of the Ilois, initially appointed and subsequently subject to elections. The purpose of the Fund was to disburse the UK and Mauritius Government monies, together with a sum provided by the Indian Government, in promoting the economic and social welfare of the Ilois and of the Ilois community in Mauritius. The Seychelles workers, Ilois and Government were not involved in these discussions. The Seychelles islands within BIOT, Aldabra, Farquhar and Desroches were never evacuated and they were returned to the Seychelles on its independence in 1976.
75. There was then a delay in the withdrawal of the Vencatessen litigation for reasons connected with his personal view of what was his due as the person who had initiated the litigation which had led to this settlement. But, meanwhile, no money was paid over by the UK Government. Public and intense pressure was brought to bear on Mr Vencatessen by the Ilois and eventually he agreed to give instructions to Sheridans that the action was to be withdrawn. Proceedings were stayed by agreement on 8^th October 1982.
76. On 22^nd October 1982, a cheque for £4m was handed over at a ceremony at which Ilois representatives were present.
77. By December 1982, the Ilois Trust Fund Board had decided to whom the money would be disbursed. 1,260 Ilois adults and 80 minors were recorded as receiving an initial tranche of Rs 10,000 (£556 at the then prevailing exchange rate), although 250 or so more were registered (1,419 adults and 160 minors).
78. Elections took place in December 1982 for the Ilois representatives to the ITFB; Mr Michel Vencatessen’s two sons and a nephew were elected. The ITFB began to discuss whether it was responsible for obtaining "renunciation forms" from those who received compensation. These forms renounced claims against the UK Government, as set out in the 1982 Agreement and the Mauritius Government had agreed to use its best endeavours to obtain one from every Ilois. This question would be discussed through 1983.
79. On 1^st January 1983, the British Nationality Act 1981 made British Dependant Territories citizens of those Ilois who had been citizens of the United Kingdom and Colonies. During June 1983, a further Rs 36,000 per adult and Rs 23,000 per child were disbursed to Ilois for the purchase of a plot of land. Many families and individuals clubbed together to do so. But a number of Ilois were discontented with the ITFB decisions and two Ilois representatives resigned, including Simon Vencatessen. A new group, the Groupe Refugies de Chagos, or CRG, came into being.
80. Between 5^th and 22^nd September 1983, the final tranche of compensation, Rs 8,000 was made. Some Rs 75m, or just over £4m, was disbursed during 1983 to 1984 to 1,344 Ilois by the ITFB. When the Ilois went to the Social Security Office to collect this final sum, they were presented with a renunciation form to sign, or far more commonly, to put their thumbprint to. This form was a one-page legal document, written in legal English, without a Creole translation, (A647). Ilois members of the ITFB were on hand to witness the thumbprint or to identify the individual, but on the Claimants’ case, they did not, and were in no position to, translate or explain the purport of the document. Only 12 refused to sign, including Simon Vencatessen; he did not receive this last tranche of money, although his wife did. He understood the purport of the renunciation form.
81. Simon Vencatessen later brought proceedings against the ITFB in the Supreme Court in Mauritius, claiming that it had no power to impose on him a requirement to sign a renunciation form as a condition of obtaining this last sum of money. He lost on the grounds that the 1982 Agreement and the ITFB provided a statutory remedy for the Ilois as an alternative to proceeding by an action in the UK or BIOT Courts. In 1989, the Supreme Court of Mauritius dismissed his claim. This decision was based on its decision in 1984 in Permal v ITFB to that same effect, (A698 and A749).
82. In January 1984, Ilois members of the ITFB wrote to the US President seeking an additional £4m compensation because the £4m paid by the UK Government was a full and final settlement. These endeavours were pursued sporadically over subsequent years. The £4m was already being seen as inadequate by at least some Ilois.
83. Over £250,000 remained in the ITF at the beginning of 1984. It was being withheld from distribution as part of the means of protecting the UK Government from any further litigation by those Ilois who had not signed renunciation forms. Should such an action be commenced, the UK Government could look to that £250,000 to meet the cost of the action. But the Ilois, short of money and needing every penny, were seeking its release in view of the large number of renunciation forms, at least 1,332 and later 1,339, which had been signed. It appears from the Claimants’ case that at least 1,344 Ilois had received compensation. But the money was still retained by the ITFB because it had claims outstanding from 238 workers who had established an entitlement, before the ITF Act was amended in 1984.
84. By mid 1985, the Chagos Refugee Group, amongst the leaders of which was Olivier Bancoult, were contending that the Ilois had been exiled through coercion, in violation of their human rights; they continued to claim that the compensation was inadequate. In 1986, certain Ilois sought the advice of US lawyers as to whether or not a claim existed. They wished to press for their return to the Chagos Islands. These matters rumbled on through the late 1980s. The ITFB in 1989 noted that an Ilois demonstration, seeking another delegation from the Mauritius Government to negotiate further compensation from the UK Government, was told by the President that the 1982 Agreement meant that compensation could now only be sought on a humanitarian basis. There was a further distribution of about £250,000 in 1987.
85. In May 1992, Bindmans were again approached for advice by Ilois representatives; among other issues being considered in September and October were land rights, nationality and citizenship. In October, Professor Anthony Bradley was instructed. In April 1993, he advised that any arguable claim against the UK Government was time barred (A756). In October 1993, he gave advice on constitutional rights, including the right to return (A759). A Mauritian lawyer suggested investigating the constitutionality of BIOT laws. The citizenship and nationality of Ilois were to be pursued.
86. In order to press the issue of the right to return, Bindmans advised that Ilois make applications to visit the Chagos Islands; applications were made in December 1993. The BIOT Commissioner sought details of who wanted to go and why.
87. The Principal Immigration Officer for BIOT through the BIOT Commissioner informed Bindmans that permission had been refused. The Commissioner provided details of the BIOT Court Registrar so that the decision could be appealed. Bindmans’ advice was that the appeal should precede any Judicial Review of the constitutionality of BIOT laws.
88. Mr Wenban-Smith was given delegated powers by the BIOT Commissioner to determine the appeal, because of the risk of apparent bias, and on 12^th May 1995, he allowed the appeals subject to various conditions. A debate ensued over timing and the presence of a television crew on the trip. It never took place. The fissiparousness of Chagossian groups continued, but Bindmans still dealt with the CIOF. A BIOT Social Committee was set up in October 1995 by other Chagossians.
89. In December 1996, a group of Seychelles Ilois petitioned the UN, the Queen and Prime Minister and the USA for fair compensation. Till then, very little had been done by the Seychelles Ilois; they had not been involved in the 1982 Agreement and although some were aware of the ITFB, no payments were made to them or intended for them. Seychelles politicians, in what had become, by a coup, essentially a one-party state, had not persisted with the Ilois cause; they now saw them as Seychellois and not as a special category. In January 1997, the FCO wrote to the Ilois Group of Seychelles denying any obligation to pay compensation.
90. In October 1997, the Chagos Social Committee (Seychelles) Association was registered to establish the rights of the Ilois in the Seychelles as British citizens and passport holders, who would seek compensation. They were said to number 200. On 24^th November 1997, the British High Commission in the Seychelles rejected the claims: those who returned to the Seychelles were mostly contract labourers, the conditions and the scale of the economic problems in Mauritius, which the compensation addressed, did not exist in the Seychelles; there was no scope for a return to the islands.
91. Sheridans became involved again in 1998. They took up the validity of the 1971 BIOT Immigration Ordinance. Olivier Bancoult instructed them to proceed with Judicial Review proceedings in the High Court in England in August 1998. In March 1999, leave was granted by Scott-Baker J. On 3^rd November 2000, the Divisional Court (Laws LJ, Gibbs J) held that section 4 of the Immigration Ordinance was ultra vires the BIOT constitution. A constitutional power to make legislation for "peace, order and good government" was held not to permit legislation which excluded the population from the territory. There was no appeal against this decision although, before me, the Defendants took issue with some of the facts stated in the judgment and at least questioned, "reserving their position", the correctness of the decision.
92. Subsequently, the Immigration Ordinance was amended, in effect to permit the return of Chagossians to Peros Banhos and Salomon. There were no defence reasons why islanders could not return to Peros Banhos and the Salomon Islands. But none have taken advantage of that possibility.
93. Through 1999 and 2000, Sheridans pressed the case for compensation for the Ilois and for the provision of infrastructure on the islands to permit a return by the Ilois.
94. The very fact of the success of the Bancoult Judicial Review, together with the conclusion from the judgment that the Ilois had been excluded under an unlawful Ordinance, gave them hope and confidence to organise and pursue other litigation. Documents hitherto withheld under the 30-year rule could now be examined at the Public Record Office. A lawyer in Mauritius, Mr Mardemootoo, in whom the various groups all felt able to repose their confidence, was found.
95. This litigation commenced in April 2002.
96. I have endeavoured to provide a brief introduction to the complex and long-evolving circumstances in which this litigation was brought; the detail is contained in the Appendix to this judgment. I have considered in more detail later in the main body of the judgment certain relevant topics: employment, property, the nature of the Vencatessen litigation as seen by the Ilois, and the organisation of the Chagossians. I describe and assess the evidence, but more detail is provided in the Appendix.

97. This litigation commenced with a Claim Form and Group Particulars of Claim dated 25^th and 23^rd April 2002 respectively. Sheridans again are the solicitors. Anthony Bradley, who had advised the CIOF in the 1990s, is second junior Counsel. A Group Litigation Order was made with the consent of the Lord Chief Justice on 11^th April and sealed on 3^rd July 2002.
98. The Claimants, the Chagos Islanders, are those born in the Chagos islands and their children. The claim form seeks: (i) compensation and restoration of their property rights, in respect of their unlawful removal or exclusion from the Chagos islands by the Defendants; and, (ii) declarations of their entitlement to return to all Chagos islands and to measures facilitating their return. The Group Particulars of Claim also seek declarations as to their property rights and restitution of property.
99. The Group Particulars of Claim identify two sub-groups: Claimants resident in Mauritius and Agalega represented by the Chagos Refugees Group, chaired by Olivier Bancoult, and Claimants resident in the Seychelles, represented by the Chagos Social Committee (Seychelles), chaired by Jeanette Alexis. There were 5,023 (4,959) Claimants; the Particulars of Claim provide a breakdown; all but 631 (570) were related to Mauritius; only 58 (24) related to Agalega; the rest, 573 (546), related to the Seychelles. Only 1,075 (1,072) of the 5,023 (4,959) were born on the islands; 557 (542) were deceased natives claiming through their heirs. The rest were the children of natives, alive or dead; of those 475 (461) were under 12. They are all listed by name in Schedule 2 to the Group Litigation Order. I should add at this stage that in the course of closing submissions, the Claimants handed in revised figures which total 4,959, though the accompanying note suggests 4,466 Claimants. I have put the breakdown of the figures totalling 4,959 in brackets above. Nothing much turns on the differences, but it illustrates the difficulties of testing individual claims.
100. The GLO was advertised in Mauritius and the Seychelles. The GLO required that the Group Particulars of Claim "contain general allegations relating to all the claims", and be verified. Questionnaires completed by each Claimant, supposedly explaining the basis upon which they fall within the group were made part of the Particulars of Claim, (paragraph 14 of the GLO). There were complaints from the Defendants about the absence or incompleteness of questionnaires for a number of Claimants. The questionnaires do not permit it to be seen how the large number of Claimants, particularly those who were not displaced from the islands at any time, relate to the multifarious claims. Some questions are irrelevant; relevant questions are omitted.

 

101. The Group Particulars are unhelpful: a partial selection of quotes from documents, and two sample life histories, from Olivier Bancoult and Therese Mein, with a lack of focus on the categories of Claimants making which claims, and how their circumstances relate to the two examples given. But its drafting invites those individuals’ circumstances to be taken as typifying the Claimants. I leave aside at this stage justifiable criticisms of the way in which the relevant ingredients of the torts are related to the facts relied on, but the particulars are most notable for the range of significant events from the mid-1970s onwards which are simply ignored, particularly any reference to the receipt of any compensation or the 1982 Agreement, and the role of the ITFB.
102. The Group Particulars rely on six separate wrongs: misfeasance in public office, a new tort to be called "unlawful exile", negligence, infringement of property rights, infringement of rights under the Mauritian constitution and deceit. The Claimants’ Reply to the Defendants’ contentions in the Defence as to abuse of process and limitation periods said that the claim also included damages for personal injury created by diseases linked to poor living conditions and mental illnesses. It is far from easy to find that pleaded in the original or amended Group Particulars of Claim, but that is a remediable pleading deficiency.
103. The Group Particulars specifically assert in paragraph 4: "This action does not address or seek to interfere with matters of foreign policy, national security or defence policy decisions, but merely seeks redress for the Defendant’s tortious conduct against the Claimants". The Claimants’ subsequent submissions, when pressed, did not sustain that seemingly simple dividing line.
104. Schedule 1 to the GLO contains the list of common or related issues of fact or law to which the GLO applies: 11 of fact, 21 of law. They appear to cover comprehensively the issues in the case.
105. The misfeasance case originally simply contended that the removals or exclusions of the Ilois were unlawful, whether or not they were carried out pursuant to the 1971 Immigration Ordinance.
106. By Amended Group Particulars of 3^rd October 2002, this allegation was considerably elaborated. It was pleaded that the Defendants, their servants or agents as before, knew that the 1971 Immigration Ordinance was unlawful, or were reckless as to its lawfulness, knowing or being reckless as to its purpose in giving effect to an "unlawful or wrongful" policy, based on a conscious disregard of the Claimants’ interests. The judgment in R v Secretary of State for the Foreign and Commonwealth Office ex p Bancoult was relied on.
107. Insofar as evictions and prevention of return were not based on that Ordinance, the Claimants relied on other illegal acts made up of (i) the Defendants’ knowledge of a significant permanent population, (ii) the births, deaths and marriages of which the state possessed records, and whose homes and possessions were there to be seen, the nature and extent of which could have been surveyed but was not, (iii) the concealment from the UN, the Commonwealth Governments and Parliament of the true position, because the existence of a permanent population would impede the UK/US agreement and give rise to obligations on the UK Government under the UN Charter, and (iv) the related pretence that there was no such permanent population and taking of policy and administrative measures to ensure that there was no permanent population.
108. Such measures included (i) instructing Rogers & Co, the shipping agents for Moulinie & Co, not to allow Chagossians who had left voluntarily to return, (ii) failing to warn those who left voluntarily that they would be unable to return, (iii) in effect coercing islanders to leave without lawful authority, (iv) failing to balance their interests against the UK Government’s interests through a failure to tell them what was happening and what their true position was, (v) failing to provide any adequate system for compensation before the islanders were displaced, and (vi) continuing to refuse to allow the islanders to return. In proposed Re-Amended Group Particulars, the Claimants also alleged (vii) that there had been no consultation with the Chagossians about their future or the future of the islands, and (viii) that the acquisition of land had been done in such a way that those in apparent occupation of land had no recourse to a judicial tribunal.
109. Further acts of illegality pleaded were that it was at the Defendants’ behest that the plantations were run down and closed, and that the Defendants could not lawfully either exclude the entire population of BIOT from "the one part of the territory that, in 1971, had an assured economic future (because of the planned US base)" compounded by the running down of the plantations knowing that this would remove the economic support for the entire population of the territory.
110. It was also pleaded that it was illegal for the Defendants in 1970 and subsequently to have adopted a policy of concealing the Claimants’ status as citizens of the United Kingdom and Colonies from the Mauritius Government, the Chagossians and others. Deceiving citizens as to their citizenship, which deceit continued towards the Ilois after 1972 was itself an illegal act.
111. It was specifically and controversially pleaded, by way of pre-emptive strike, that the disclosed documents showed the Defendants’ liability but that "it is not necessary as a matter of law for the Claimants to be able to identify bad faith on the part of a single officer for the Defendants to be liable". This was not so much a point as to evidence but a point as to the substantive law as to the requirements of the tort of misfeasance in public office.
112. The Defendants acted dishonestly, it was alleged, for the purposes of this tort because they acted in bad faith, knowing that what they said was untrue and that what they did was unlawful, or being reckless as to the truthfulness or lawfulness of what they said or did. No individual is named.
113. The dishonest statements were (i) that there were no permanent inhabitants of the Chagos islands when they knew that there were, (ii) that they failed to report to the UN on BIOT when they knew that they should have done, (iii) that they failed to inform Chagossians as to their rights as "belongers" and as British citizens, (iv) withheld information from the Mauritius Government as to their status, and (v) minimised publicity over the BIOT Immigration Ordinance.
114. It was pleaded that the Defendants knew that what they did illegally would injure the Claimants or were recklessly indifferent to that consequence because they knew or ought to have known of the Chagossians’ property rights, their family and community connections in the islands, of their distinctive cultural identity which "could not readily survive intact" transplantation to Mauritius or the Seychelles and that their skills working the coconut plantations could not avail them elsewhere. They were removed under duress, without consultation and without proper facilities on their arrival in Mauritius or the Seychelles.
115. The misfeasance case relates to the period commencing with the lead up to the 1964 UK/US agreement and the creation of BIOT, and its principal aspects conclude with the arrival in 1973 of the last of the Chagossians in Mauritius and the Seychelles, although some later acts are relied on.
116. The initial contentions of the Defence as to the inadequacy of the pleaded allegations in constituting the tort of misfeasance were removed by the Amended Group Particulars. The real issues raised by the Defence were first as to the existence of any real prospects of the Claimants showing knowledge or recklessness as to any of the allegedly unlawful acts or the likelihood of harm to the Claimants from them; the Defence was not amended in response to the new allegations of knowledge and unlawfulness in the Amended Particulars of Claim but that response continued to be made in respect of them. Summary judgment was sought, in any event, in respect of the claims of those who were not in BIOT or who were unborn at the relevant times.
117. The misfeasance claim is closely related to the new tort of "unlawful exile" asserted by the Claimants. The ingredients of this tort, not on an exhaustive basis however, were set out by the Claimants in a note of 18^th October 2002. The Crown cannot remove from or prevent the return to British Territory of a British citizen or "belonger" without statutory authority or the "free, voluntary and informed consent" of that person. The rights derived from Magna Carta, and from common, constitutional and international law. If the rights existed, there was a tortious remedy for their breach. This tort covered not just the events surrounding the evacuation of the islands but also the refusal to allow those from Diego Garcia and their descendants to return there; it is said to be a continuing tort.
118. The negligence case, as often stated, relates to the period which starts with the arrival in Mauritius and the Seychelles of those displaced from the Chagos. It does not assert that the decision to remove the inhabitants was itself negligent nor does it cover the immediate manner of their removal. It does not therefore appear to cover those who were not removed from the islands but were prevented from returning. I am not sure that that is the Claimants’ intention. It too is said to be a continuing tort. The duty of care was said to arise from the Defendants’ decision to close the islands; that led to a duty to make adequate provision for those whom closure had displaced, by way of funds and facilities which would provide a "roughly comparable lifestyle" to that which they had enjoyed on the islands. This duty was breached because not even their most basic needs were met, leading to great deprivation: adequate provision had never been made.
119. The Claimants’ property rights were said to have been acquired by prescription or succession. Mauritius property law, including the Civil Code in force from 1805, applied and granted rights to those in unequivocal possession of non-Crown lands with an intention to own it. Those rights were protected by the Mauritius Constitution.
120. The Claimants’ contention that the Mauritius Constitution also provided rights in respect of inhuman treatment was not further particularised.
121. The deceit case was that false statements of existing facts had been made in documents, or even impliedly through inaction, to the Chagossians, the UN, the UK Parliament, the press and the Government of Mauritius. The false statements were that the Chagossians were not permanent residents of, and had no rights to remain in, the Chagos islands, had no rights under the UN Charter and were not British citizens. The Claimants relied on the same facts as to dishonesty as they relied on in relation to misfeasance in public office. The purpose of the deceit was to procure the quiescent removal of the islanders, without their asserting any of their rights and to prevent other persons assisting them to assert those rights. The Claimants and others relied on those representations, as was said to be demonstrated by the unhindered and unopposed evacuations, and the lack of public dissent. The Defendants had wilfully taken advantage of the poverty, ignorance, illiteracy and isolation of the Claimants.
122. This tort appears to cover the period from the inception of the proposal to create BIOT until the Bancoult Judicial Review proceedings.
123. The various torts and wrongful acts are said to have caused the islanders first, broadly, to have been deprived of the right to reside in the Chagos, enjoying the lifestyle, grants and assistance to which they would have been entitled as a permanent population, and second, to suffer individual losses of real and moveable property, jobs, income and "security, dignity and a sense of identity". They suffered instead a minority status, characterised by discrimination and poverty in many manifestations. Damages, aggravated and exemplary, are sought. Also sought are declarations (i) that the continued refusal of the Defendants to allow the Chagossians to return is unlawful, and (ii) as to the steps necessary to make that right of return, to live in each of the previously inhabited Chagos islands, practicable.

 

124. The Group Defence of 28^th June 2002 stated that the Defendants would seek to strike out the Particulars of Claim and seek summary judgment on the grounds that there were no reasonable grounds disclosed for bringing the claim and the Claimants had no real prospect of succeeding. The claims either did not satisfy the requirements of the pleaded causes of action, or were unknown to English law, or, if the laws of Mauritius were relied on, were irrelevant to BIOT, and were in any event statute barred or an abuse of process. A detailed response followed but it did not purport to be the full factual response.
125. The jurisdiction of the High Court was not challenged for the purposes of this action, although the BIOT Commissioner did not abandon his contention that the BIOT Courts were the proper forum. The nature and whereabouts of the BIOT Courts make a curious footnote in colonial legal history.
126. The essence of the Defendants’ pleaded case in response was that those present on the islands at the point of closure, were present as licensees at will of the owners of the islands, initially Chagos Agalega Company Limited, and subsequently the Crown. It was Chagos Agalega Company Limited and the subsequent management company, Moulinie & Co, which was responsible for reducing the number of workers, for recruitment and organising the transport of the workers and their dependants to Mauritius, Agalega and the Seychelles upon closure of the islands. BIOT was created to enable the United Kingdom to enter into an agreement with the United States of America for the advancement of their mutual defence and security interests. It was admitted that the plantations were run down and closed as a result of the UK/US Agreements and the subsequent decisions of the United States in respect of Diego Garcia. The plantations on Peros Banhos and Salomon closed because they were not economic after the closure of the Diego Garcia plantations. The Defendants said that they had made adequate provision for resettlement through the agreement with Mauritius and the arrangement for the transfer of people to Peros Banhos and the Salomon Islands.
127. It was denied that the Defendants removed individuals against their will or did so dishonestly or in bad faith; instead, they co-operated to minimise the disruption to those engaged on the plantations by seeking to give a degree of choice as to where those displaced from Diego Garcia and the other islands were subsequently settled, by providing financial support to the Government of Mauritius and obtaining their agreement to a sum of money in discharge of the resettlement obligation which the United Kingdom Government had undertaken.
128. It was said that it was only after the creation of BIOT that the Defendants were aware that there were individuals who had been living on the islands for at least one generation. It was arranged that they should have the status of Mauritian citizens on the independence of Mauritius in 1968. It was denied that they had any right personally or by virtue of property to remain on the islands or that they were permanent inhabitants or "belongers" of BIOT. It was disputed that the Defendants knew of or were reckless as to the possible legality of section 4 of the Immigration Ordinance 1971. As to the allegation that the Defendants knew or were reckless as to the probability of their action injuring the Claimants, the Defendants contended in the Defence that they were concerned to ensure their proper treatment and entered into a commitment to the Mauritius Government to meet the resettlement costs, protected their rights of citizenship and thereafter sought to maintain plantation working where possible, to obtain employment for them on the islands, and examined development and investment.
129. The Defendants asserted that they recognised the need to make appropriate financial and administration arrangements for the resettlement of individuals but they believed that it was only a small number of those working on the plantations who had substantial personal links to the Chagos islands and that there would be no real difficulties in making appropriate arrangements of them which they did. It was denied that the Defendants knew or ought to have known that the compensation arrangements might prove unacceptable or inadequate or that they were aware that any losses would be caused for which they would not be compensated by their departure from the islands in terms of real or moveable property.
130. Once the state of Mauritius became independent, it was not for the Defendants to control the way in which the independent Government carried out the arrangements for resettling the Ilois. The two commercial operators of the copra plantations exercised their own judgment in respect of recruitment and operation in the circumstances prevailing after the 1965 UK/US Agreement; the Defendants were not obliged to provide a subsidy to copra production and the copra plantation operators did not act as agents of the Defendants. The Defendants did not have control either over the implementation of the UK/US Agreement and the policy decisions under that Agreement made by the US.
131. Much of the Defendants’ pleading in relation of the alleged tort of unlawful exile drew upon the defence in relation to misfeasance. It was said in those circumstances that there had been no breach of any common law or international law. It was denied that the Defendants removed any individuals from the islands or that if they did so, they did so pursuant to the 1971 Immigration Ordinance, but rather asserted that they did so in the exercise of the private rights which they had as operators of the plantation. In respect of Diego Garcia, it was said that it was not practical in view of the importance of Diego Garcia to defence interests for any Claimants to return to Diego Garcia, and that in respect of the other islands, the practicalities of the American attitude in 1969 onwards for a number of years made investment in those islands impracticable. Although the Immigration Ordinance 2000 permitted Chagossians to return to BIOT except for Diego Garcia, the Defendants were not obliged to undertake the investment required for a viable resettlement of those islands.
132. The Defendants asserted that the pleading of negligence was wholly inadequate and that insofar as there was a duty of care owed, that duty had been discharged by the agreement with the Government of Mauritius in 1972, the payment of the resettlement costs in 1973 and the further payment of £4m in 1982. No admissions were made as to loss or damage or causation.
133. The Defendants denied that the Chagossians had acquired any ownership of real property within the islands, denied the relevance of Mauritian law to any claim and any breach of Mauritian law, and asserted that these claims as with the others was statute barred.
134. The Defendants asserted that the pleadings on deceit were wholly inadequate and should be struck out as frivolous, vexatious and embarrassing. This was because of the very generalised allegations as to what was said to have been said to a very wide and heterogeneous group of individuals, businesses and organisations.
135. It was specifically pleaded that the Claimants must have known of their rights before the Bancoult litigation because of the pleadings in the Vencatessen action. Various allegations about abuse of process were made.
136. The Reply of the Claimants on abuse of process and limitation contended in summary:

1. that the Limitation Act 1980 had no application because for all or the vast majority of the Claimants, the Defendants’ acts had denied them any real and substantive access to justice, and in any event, it would be unconscionable to permit the Defendants to rely on the Act;
2. that the Foreign Limitation Periods Acts 1984 excluded or modified the operation of the Limitation Act 1980;
3. that Article 3 of the BIOT Courts Ordinance 1983 required the time limits in the Limitation Act 1980 to be adjusted to meet the particular circumstances of these Claimants;
4. that the Limitation Periods were not applicable to the continuing torts of unlawful exile and deceit which latter had only ended with the Bancoult litigation;
5. that the Claimants were disabled within the meaning of the Limitation Act because they had been outside the jurisdiction of the BIOT Courts and of the High Court of England and Wales as a result of the Defendants’ actions, which had also caused them to be impoverished, ignorant, illiterate and physically separated from those Courts;
6. that the action was based upon the fraud of the Defendants and deliberate concealment of relevant facts, in particular in concealing their citizenship removing the islanders, preventing their return and infringing other rights of theirs and failing to make adequate provision for them, accordingly section 32 of the Limitation Act 1980 meant that the actions were not statute barred; and
7. that the actions were also actions for personal injury and it would be equitable pursuant to Section 33 of the Limitation Act 1980 to allow the actions to proceed. The injuries included diseases linked to poverty, poor living conditions, malnutrition and included such illnesses as malaria, gastro-intestinal infections, drug addictions and mental illnesses.

137. The Claimants were unable to discover with reasonable diligence that the Defendants had behaved fraudulently and unconscionably at an earlier stage because they were uneducated, trusting, without access to pre-legal advice and effectively under the control of the Defendants who had misled the islanders at all stages as to their rights and status.
138. It was said that there was no abuse of process rising out of the Bancoult litigation; there was no duty to test the validity of the 2000 Ordinance by applying for permission to return to Diego Garcia and it was not necessary for the validity of the 2000 Ordinance to be challenged in Judicial Review because of the factual relationship between a decision as to its validity and the material relied on for the rest of the Claimants’ claim. This was not a case of Henderson v Henderson abuse.
139. The Reply also denied that the renunciation forms could found an allegation that the Claimants were abusing the process of the courts in these proceedings because they would not have been aware of the content or purport of those documents and so there was no clear and unequivocal waiver of rights by persons fully informed as to them. Indeed, it was said to have been unlawful for a Government with governing responsibilities to treat its citizens in that way.
140. A Case Management Conference was held before Master Turner on 16^th July 2002, who ordered a trial of a number of preliminary issues.
141. The preliminary issues were (i) "whether the Claimants were unlawfully removed from or prevented from returning to the Chagos Islands as pleaded" and (ii) a long list of scheduled issues, the detail of which the parties were to agree, including whether the action was statute barred, whether the pleaded case constituted the tort of misfeasance in public office, and whether they could establish its ingredients, in respect of which a variety of aspects were raised. The existence of a tort of unlawful exile, the justiciability of the national security and international obligation issues raised by the asserted right to return to Diego Garcia, the inadequacy of the pleading of the negligence and deceit case, and the applicability of Mauritius law and the Mauritius Constitution were also issues raised in the Schedule.
142. Master Turner also made orders for disclosure and the exchange of witness statements for the purposes of that trial. The time estimate was 7-10 days. It was not then thought by either side that there would be much more disclosure of documents. There had been a debate as to whether the issues should be dealt with on the pleaded facts or whether, as the Claimants wished, live evidence at least on their side should be called. Master Turner, plainly encouraged by the Claimants’ submission that the evidence of comparatively few witnesses for the Claimants would suffice to provide the factual matrix necessary for the determination of the Defendants’ preliminary issues, ruled that live evidence should be called. The Defendants did not appeal that decision.
143. The basis for Master Turner’s decision was common sense case management and justice. The pleadings were vague or incomplete as to many factual assertions; yet filling in those gaps, the full extent or implications of which could lead to further facts becoming relevant, through the taking of instructions over long distances from largely illiterate people dealing with events long ago via interpreters and then rendering the answers into pleadings, would be very expensive, time consuming and of debateable completeness or accuracy; live witnesses would be able to deal with those issues immediately, and the true scope of what they wished to say ascertained, clarified and checked or tested. As the aim of the Defendants was to defeat the whole or large parts of the case without a full trial, in circumstances where the Claimants were elderly, at least in their eyes had suffered at the hands of the very colonial power from which they were seeking justice, and were suspicious that as illiterate Creole citizens they were discriminated against in comparison with other colonial citizens, it was only just that the Claimants should have their opportunity to have their say, and should not feel as though the lawyers had dealt with it behind their backs.
144. Although not all of those aspects were explicitly part of Master Turner’s thinking, it became increasingly clear to me as the case was prepared for trial and being tried, that he was right to have ordered as he did and the considerations to which I have referred weighed heavily in favour of the process undertaken, very prolonged though it turned out to be.
145. Unfortunately, the nature of the issues thus to be dealt with was not altogether clear and the parties could not agree. Part of the problem related to the question of which witnesses were necessary for which issues and, more importantly, what factual issues if any were to be finally decided at the preliminary stage. I held two pre-trial reviews, on 26^th September and 11^th October 2002. The list of issues was refined and the questions for the Court became generally expressed in terms of whether there was a reasonable prospect of the Claimants establishing the facts necessary for their claim or for defeating the Defendants’ contention that the claims were statute barred. In general, binding findings of fact would not be made except in relation to abuse of process and so far as was necessarily implicit in the formulation of the limitation issue. The Defendants did not therefore have to provide oral evidence lest binding findings of fact were made against them at this preliminary stage. There were issues of law to be resolved. In summary, the fifteen issues covered:

1. the factual evidence of compulsory removal of Claimants or the prevention of their return to the Chagos Archipelago and the lawfulness of such acts;
2. in relation to the tort of misfeasance in public office, the prospects of it being shown that the Defendants acted unlawfully or if they did so, whether they knew or were reckless as to that unlawfulness;
3. the existence of and legal requirements of the alleged tort of unlawful exile;
4. whether the alleged duty of care arose;
5. the prospects of Claimants showing that they had any real property rights, in particular in the light of the acquisitions by the Crown, and the possible applicability of Mauritian law;
6. the relevance of the Mauritian Constitution;
7. the ingredients of the tort of deceit and the Claimants’ prospects of showing that the tort had been committed;
8. the prospects of any cause of action not being statute barred or property right not being extinguished;
9. abuse of process in the light of the settlement of the Michel Vencatessen litigation and the later Bancoult litigation.

146. Various other orders were made in an endeavour to clarify what the pleadings were actually contending for; the Particulars of Claim were amended. The Claimants’ Reply on Limitation and Abuse of Process went through a number of editions, the last one accompanying their closing submissions.
147. The hearing in the end lasted 37 days, not without some gaps. Many more witnesses were called by the Claimants than had been anticipated. They were called to deal with concerns which I raised during the hearing, with particular reference to the limitation and abuse arguments. Those concerns revolved around what the Claimants knew generally about the 1982 settlement, the Vencatessen litigation, the distribution of the £4m by the ITFB and, as it transpired, subsequent occasions when legal advice was sought by the Ilois. I felt that there were many significant witnesses who had not been called, the absence of whom was very surprising in the light of the contentions. The disclosure of documents from both the Defendants’ and Claimants’ files continued through the hearing and while written closing submissions were being prepared. Both sides complained about the inadequacy of the others disclosure. Some relevant documents were not in the control of either party.
148. The giving of evidence was slowed not just by the need for almost all the Claimants who gave evidence to do so through an interpreter. Documents had to be translated orally, and even if written in Creole, read to witnesses and at least in part translated for the Court. I am grateful to the many who acted as interpreters, for a language with few interpreters, many of whom, including a former President of Mauritius, came at short notice, at some disruption to their own lives.
149. Written closing submissions with a brief flurry of rebuttals and counter-rebuttals were provided for those submissions not concluded by 10^th January 2003. The process ended towards the end of March.

150. Mr Allen QC for the Claimants submitted that the Defendants’ applications were unjust as a matter of intuition or perception. It was unjust that they should have no personal adjudication on the wrongs which they had suffered and the claims which they brought. His clients had been treated unjustly; it was unthinkable that a British Government could so treat the Chagossians. They had been displaced as a people by the Government of the United Kingdom which had eschewed any governmental obligation to them and was now seeking to prevent adjudication on the wrongs done to them. They had never had "any independent comprehensive high level review" of their rights or of the wrongs done to them. They had been treated in a way which it was inconceivable that, eg the Scots would be treated.
151. Paradoxically, however, it was the creation of BIOT in 1965, in advance of the removals which, as Mr Allen accepted, provided the opportunity for some of the Chagossians’ grievances to be raised. Had they been removed by the UK from the Archipelago to Mauritius while the islands were still part of Mauritius before independence, or had they been removed by Mauritius after independence from islands which had remained constitutionally part of Mauritius, the removal itself would not have generated claims about exile or a removal which was in principle one which no Government could inflict on its citizens. They would have been removed from one part of Mauritius to another part in the public interest, whether for defence purposes or because the islands’ economy could no longer sustain them. Of course, the politics involved in such a route would have been completely different; it would not have been sufficiently certain for the UK or US Governments and the internal politics of Mauritius never contemplated such a course.
152. As Mr Allen reminded me, the fact that this application has lasted so long and has involved so many witnesses and bundles of documents (some newly arriving during the hearing), does not alter the purpose of the hearing: it is not a mini-trial. But it is to deal with the issues ordered to be dealt with, as to an extent they evolved during the hearing; it includes strike-out proceedings but it is also an application for summary judgment. Still less, however, would any trial of the action be a form of public inquiry into the overall actions or omissions of the UK Government towards the Chagossians over three decades and more, notwithstanding many comments and arguments from him which were more addressed to heaping moral opprobrium on the Defendants than to dealing with the issues to which the applications give rise. Neither the applications nor any trial of the action would constitute a high level, independent and comprehensive review of the rights of the Chagossians, the absence of which Mr Allen complained about. Nor could any trial constitute an inquiry at a general level into governmental wrongdoing or incompetence.
153. If, as Mr Howell QC said, the actions or parts of it should be struck out or summary judgment entered in whole or in part, that is the application of the system of law to the case. It would be the proper form of personal adjudication. Justice does not require an obviously unmeritorious case to be allowed to proceed. Ill-treatment does not require a hopeless case to be allowed to continue. Indeed, to raise false hopes would not be fair. There is every good reason to avoid the waste of public money and court resources which the continuation of hopeless claims or contentions would otherwise create.
154. In saying that, I am acutely conscious of the position of at least some of the Claimants. I have not heard oral evidence from the Defendants on any issues of real significance, although I have had a great deal of material in the form of documentary evidence about what happened over the years, upon which the Defendants rely. It does appear that, in the absence of unexpectedly compelling evidence to the contrary, at least some Claimant Chagossians could show that they were treated shamefully by successive UK Governments. Whatever view might be taken of the importance of the strategic defence aims underlying the creation of BIOT, the evacuation of the islands and the establishment of the base on Diego Garcia, some who had lived there for generations were uprooted from the only way of life which they knew and were taken to Mauritius and the Seychelles where little or no provision for their reception, accommodation, future employment and well-being had been made. Ill-suited to their surroundings, poverty and misery became their common lot for years. The Chagossians alone were made to pay a personal price for the defence establishment on Diego Garcia, which was regarded by the UK and US Governments as necessary for the defence of the West and its values. Many were given nothing for years but a callous separation from their homes, belongings and way of life and a terrible journey to privation and hardship. Such arrangements as were made in the early 1970s did not take effect for several years and came too little and too late to alleviate their problems. An eventual accord in 1982, driven by litigation, produced an offer which was intended to improve their sad conditions but which was not evidently generous. Their poverty, sadness and sense of loss and displacement impel their continuing desire to return to the islands which were their home.

155. It was the Claimants who wanted to provide some oral evidence for the purpose of these applications. Initially, this evidence was to show the way of life which they had led on the Chagos, the manner in which they had been compelled to leave the islands or prevented from returning to them, the harsh conditions of their voyages to Seychelles and Mauritius and the destitution in which they had been left there for so long, without assistance or compensation from the UK Government. It was to re-assert their entitlement to return, and their strong attachment to the Chagos, indeed to particular islands within the Archipelago. But it became clear to me during the cross-examination of the witnesses whom the Claimants had initially decided to call, that there was much relevant evidence on other issues in respect of which obvious witnesses were not being called. Those issues related to the series of negotiations leading to the 1982 Agreement, the Agreement itself, the signing or thumbing of renunciation forms, the way in which the ITFB had dealt with those forms, the withdrawal of the Vencatessen litigation and the nature and extent of the legal advice which, over the years, the Ilois, or some of them at any rate, had received and to which publicity had been given. Those issues were directly relevant to the Claimants’ case on limitation.
156. The evidence of the individual Chagossians was given through interpreters of varying experience. Some of the Chagossians were elderly; some had been very young when they left the Chagos and arrived in Mauritius and the Seychelles. Inevitably, for all, the events surrounding the 1982 Agreement were twenty years past. The individuals were mostly illiterate in any language, spoke only Creole, and lacked significant education. Documents had to be translated in the witness box, and could not be read by them to assist understanding or recollection. Legal concepts were, not surprisingly, poorly understood, at least at any level of complexity, though the witnesses all had and expressed a strong sense of their rights as they perceived them and what rights they would or would not give up. Some legal ideas, notably the making of a claim or bringing proceedings, lacked a clear or consistent Creole translation. Witnesses were also often troubled by ideas of time, how long ago something had happened, and whether something had happened at the same time as something else. Witnesses would sometimes lose the thread of the questions, and could not be brought back to it, and when reminded of what they had recently said, would deny it or give a very different answer as that earlier question was then put again. Accordingly, their evidence requires a careful appraisal.
157. But certain observations are apposite at this stage. It was plain that the written witness statements, which for the most part the witnesses were prepared to adopt as true, could not be regarded as accurate or reliable or as the witnesses’ testimony on many aspects. The language of many of the witness statements was far too advanced and detailed to be the true recollection of the actual witness in anything approaching their own words. It appears that one of the problems with the way in which the statements were taken in Mauritius is that the person preparing the statement provided information in it which may be true, for example exchange rates, but which is not within the knowledge of the deponent. This leads to a false impression of the witness’ knowledge. It is impossible to tell the extent to which the written statement has been influenced by the statement taker, no doubt acting in good faith, or the extent to which the statement has been affected by the way in which the story has been taken down in Creole and translated into English and then back again.
158. But, even making those allowances, there are some surprising errors in the witness statements and some surprising omissions. There was a surprising lack of material in the witness statements on issues of real importance including the relevant material for the claim to property rights by prescription, as to their beliefs about the nature and purpose of the 1982 Agreement, the existence of the renunciation forms and what they and the Chagossian community more generally had known or believed about the availability of legal advice, and about certain of the wrongs said to have been done, such as the alleged denial of British citizenship. This is not a criticism that each document upon which the witnesses were cross-examined should have been previously considered, but there was often scarcely a reference to important aspects.
159. The witnesses, quite properly in this case, gave evidence in chief at some length; this evidence was often at variance, in matters large or small, with their statements. The oral evidence itself was frequently self-contradictory; what was said in cross-examination being at variance with evidence in chief, or with earlier answers in cross-examination.
160. The lack of reliability may, in part, be attributed to a lack of understanding of the questions and a loss of the thread, but it also reflected an unreliable memory. Some answers would be given to questions about events which they at other times would deny happened or deny that they remembered. The frequency with which witnesses were unable to remember events or simply did not know about them itself suggested that they had unreliable memories of events now too long ago for more reliable evidence to be forthcoming. Indeed, the lawyers who gave evidence were often unable to do more than rely upon the documents for their recollection as to what had happened.
161. Evidence was also given, as if at first hand, about events which the witness could not have seen or heard. As Mr Allen put it, there was an element of "collective" or "folk memory". As Mr Howell suggested, stories went round which became lodged in people’s minds as events which had happened and then as events which they had witnessed. Those amount to much the same, but the evidence thus given is of little practical help, for it is impossible to know whether it has any foundation in fact or not. There might be value in "collective" or "folk memory" evidence, or in a fairly sound general picture in which the individual details were more uncertain, if one were seeking a generalised or collective view for the purposes of an inquiry into the conduct of the UK Government. But I am concerned with litigation in which, on issues such as negligence and damages for personal injury, what happened to each individual Claimant would need to be measured with rather greater precision.
162. The unreliability of so many memories and the large gaps in recollection and knowledge were compounded by the willingness of a number of Chagossian witnesses to take refuge in a loss of memory and a denial of knowledge in order to evade questions on obvious problems: in particular, about the Vencatessen litigation, the withholding by the ITFB of £250,000 while sufficient renunciation forms were collected, and the occasions when legal advice had been sought. At times, Mr Allen’s repeated emphasis on their naivety and ignorance as an explanation was overstated and did the Chagossians in their determination and endeavour less than justice. Many were, I concluded, alive to the significance of the passage of time since 1982 and the importance of what they had or had not been told about their rights and used their asserted poor recollections as a device to avoid facing up to evidential problems. For some, this did not appear to be an unfamiliar refuge. Even if that were too harsh a judgment, those gaps in memory show how difficult it now is for reliable evidence to be given on important issues.
163. I also concluded that some Chagossian witnesses gave deliberately false evidence on a number of issues, notably, but not only, Mrs Charlesia Alexis.

164. Mrs Talate was the first witness and gave much evidence which other Chagossians were to agree with or to be affected by. She had been born, she said, on Diego Garcia but she could not remember when, because of her suffering.
165. She was asked in cross-examination why the statement which she had sworn