1950's claims are time-barred for limitation purposes (Supreme Court)

Practical Law UK Legal Update Case Report 4-518-5591 (Approx. 5 pages)

1950's claims are time-barred for limitation purposes (Supreme Court)

by Andrew McGee, Barrister at Kings Chambers, Leeds and Manchester; Professor of Business Law, Manchester University

In Ministry of Defence v AB and others [2012] UKSC 9, the Supreme Court decided that claims brought by nuclear test veterans in relation to injuries allegedly caused to them in the 1950’s were out of time for limitation purposes, and that the court should not exercise its discretion to allow them to proceed.

Note: According to the UK Supreme Court blog, veterans involved in these proceedings have announced that they intend to take their case to the European Court of Human Rights.

Note: (Free access.)

Speedread

The Supreme Court has considered whether claims in a group action relating to injuries allegedly caused by nuclear tests in the 1950s were statute barred and, if so, whether it should exercise its discretion under section 33 of the Limitation Act 1980 to disapply the time limits. In addition to its limitation submissions, the defendant argued that none of the nine (originally ten) lead cases could satisfy the relevant causation test because there were a number of possible causes of the illnesses alleged, and it could not be proved which of them was the most probable cause. If the cases stood no reasonable prospect of success, the court should strike them out. The defendant submitted that a further exception to the Fairchild exception (to the general rule that the claimant must be able to demonstrate causation before damages can be awarded) could not apply in these cases.

At first instance it was held that all of the ten lead cases could proceed. The decision was reversed by the Court of Appeal, and by a 4-3 majority the Supreme Court has upheld its decision. It concluded, by reference to section 14(1)(b) of the Limitation Act 1980, that a claimant is likely to have the requisite knowledge of the facts when he first came to reasonably believe them. The test is an objective one and a distinction is to be drawn between knowledge of the essence of the claim, and the evidence necessary to prove it to the requisite legal standard. (Ministry of Defence v AB and others [2012] UKSC 9.)

Background

For details of the relevant background see Legal update, 1950's claims should be allowed to proceed and for further details on limitation generally see Practice note, Limitation periods: an overview.

Facts

For details of the facts see Legal update, 1950's claims should be allowed to proceed. In brief, the claimants brought a group action against the Ministry of Defence for compensation for injury, following their involvement as servicemen with the nuclear tests carried out by the British Government in the 1950s.

At first instance, the court considered whether the claims were statute barred and, if so, whether it should exercise its discretion under section 33 of the Limitation Act 1980 to disapply the time limits or, alternatively, whether it should strike out the claims as having no reasonable prospect of success. Having concluded that all of the ten lead cases could proceed to trial, the defendant appealed.

In the Court of Appeal and in the Supreme Court attention was focussed on the question when the cause of action had accrued and then on whether the section 33 discretion should be exercised.

Decision

The essence of the claimants' argument was that they did not know that their injuries were attributable to the defendant's acts or omissions more than three years before proceedings were issued. They might have believed this, but they did not know it, and what section 14 requires is knowledge. Indeed the claimants went so far as to say that they did not have the requisite knowledge even at the time when proceedings were issued. It was only later, with the publication of a report into the nuclear tests in 2007, that they acquired the necessary knowledge.

The Court of Appeal unanimously rejected this view, but the Supreme Court was split. Lords Walker, Brown, Mance and Wilson agreed with the Court of Appeal, but Lord Phillips, Lady Hale and Lord Kerr concurred with the claimants on this point.

The majority view was that knowledge requires only a reasonable belief in attributability. 'Attributability' means only that it is something more than a fanciful suggestion to argue that the defendant is responsible. It does not require anything like certainty. The standard is, therefore, a very low one.

Here it was clear that the claimants did have an honest and reasonable belief in attributability. There had been publicity about the possibility that the defendants were responsible for the injuries for many years, and many of the claimants had been members of the Nuclear Test Veterans Association which campaigned for compensation, precisely on the basis that the injuries were caused by the tests. Further, the particulars of claim alleged causation, and, as Lord Wilson pointed out, each of the claimants had signed a statement of truth on those particulars.

The minority view of their Lordships considered that this viewpoint confused actual knowledge with constructive knowledge. The standard of knowledge was rather higher than that proposed by the majority, requiring something in the way of expert evidence to support it. Mere subjective belief was not enough.

So far as section 33 of the Act was concerned, the majority took the view that the lapse of time, coupled with the fact that the claimants were still not really in a position to prove that their injuries were caused by the tests, meant that it was not appropriate to extend time.

Comment

The case obviously aroused strong views among the members of the Supreme Court, and it is fair to say that the subject is an emotive one. The claimants were exposed to the tests without having any choice in the matter, and the defendant must have known that there was some risk of injury.

On the other hand the claims were very old by December 2004, when proceedings were issued, and it seems difficult to deny that the claimants did, in fact, at a much earlier date come to the conclusion that the injuries resulted from the tests.

The technical point of statutory construction is about the meaning of 'knowledge' in section 14 of the Act. Few things in life can really be 'known' with certainty, and it might be thought that the majority had reduced the standard to a more realistic one. On the other hand, it might also be said that reasonable belief is a good deal less than knowledge, and that statutory construction should have more regard to the wording used in the Act.

Examination of the Law Commission's work, which lead to the present legislation, does tend to support the approach of the majority - time starts to run once the claimant knows enough to justify the making of further investigations. That knowledge can be actual or constructive, and once there is actual knowledge, it is irrelevant that the facts would not give rise to constructive knowledge. If the claimant reasonably believes that the defendant's acts or omissions have caused him injury, then he ought to make further investigation (for example, by taking legal and/or medical advice) and time runs from that moment.

In relation to section 33 of the Act, the claimants' arguments on causation were weak. These proceedings, if allowed to continue, would have been lengthy and even more expensive than they had already been, yet the claimants were, by their own admission, not in a position to prove their claims. Extension beyond the limitation period is a matter for the court's discretion, and these claims did not seem to have good grounds for the exercise of that discretion.

Another point worth considering is that strictly speaking, the Supreme Court has decided only nine test cases out of a total of 1,011. Those decisions are not binding in the other cases. In practice, however, it may be supposed that the other cases have sufficient similarity with the test cases to ensure that the litigation cannot proceed any further. The test cases were conducted on Conditional Fee Agreements (CFA) with the benefit of After The Event (ATE) insurance. It is hard to imagine that any solicitor would now take any of the other cases on a CFA, or that any ATE insurer would grant cover.

Case

Ministry of Defence v AB and others [2012] UKSC 9.

End of Document

Also Found In

Resource ID 4-518-5591

Published on 21-Mar-2012

Resource Type Legal update: case report

Jurisdictions

England
Wales