AB & Ors v Ministry Of Defence

Facts

The appellants (B) appealed against a decision of the Court of Appeal ([2010] EWCA Civ 1405) that their personal injury claims against the respondent Ministry of Defence (MoD) were time-barred.

B were nine lead claimants who represented over 1000 veteran servicemen who had been involved in thermonuclear tests carried out by the MoD in the South Pacific in the 1950s. They claimed that during the testing they had been exposed to radiation and that as a result they had suffered illness, disability or death. The MoD denied that they had been exposed to radiation and denied that their injuries had been caused by exposure to radiation. Most of the claims had been issued in 2005, by which time the veterans had come to believe that they had been exposed to radiation. However, they asserted that it was not until 2007, when an expert's report provided some evidence of their having been exposed to radiation, that they acquired the knowledge required by the Limitation Act 1980 s.11(4) and s.14(1). Limitation was determined as a preliminary issue. At first instance, the judge held that the claims were not time-barred. The Court of Appeal reversed his decision, holding that B had acquired the relevant knowledge more than three years before issuing their claims. It declined to exercise its discretion under s.33 of the Act to disapply s.11(4), holding that B had no real prospect of success. The issues were (i) whether it was possible for a claimant to begin proceedings before having acquired the knowledge required by s.14(1)(b) that his injuries were attributable to the defendant's negligence; (ii) what "knowledge" meant for the for the purposes of s.14(1)(b); (iii) if B's claims were time-barred, whether the court should exercise its s.33 discretion.

Held

(1) By the time a claimant issued proceedings he had, pursuant to s.14(1)(b), to have knowledge of the fact that his injuries were attributable to the defendant's negligence, nuisance, or breach of duty. It was a legal impossibility for a claimant to lack such knowledge after he had issued proceedings. The statement of truth could be regarded as an explicit recognition by the claimant that he had knowledge that his injuries were attributable to the defendant. It was clear that the inquiry mandated by s.14(1) was retrospective and was aimed at discovering whether the claimant first had the requisite knowledge within the three years prior to the date of issue, Whitfield v North Durham HA [1995] P.I.Q.R. P361and Nash v Eli Lilly & Co [1993] 1 W.L.R. 782considered. It was heretical to assert that a claimant could escape the time bar by establishing that, even after his claim had been issued, he remained in a state of ignorance as to whether his injuries were attributable to the defendant (see paras 3-6 of judgment). (2) As to the meaning of knowledge for the purposes of s.14(1)(b), Lord Donaldson's formulation in Halford v Brookes (No.1) [1991] 1 W.L.R. 428was to be endorsed: a claimant was likely to have acquired knowledge of the required facts when he first came reasonably to believe them, Halford approved. His belief had to have been held with sufficient confidence to justify embarking on the preliminaries to the issue of proceedings. Lord Donaldson envisaged that the collection of evidence to support the claim would normally come after the claimant first knew that he had a possible claim. There was a distinction between a claimant's knowledge that he had a real possibility of a claim, and the assembly by him and his legal team, with the help of experts, of material justifying the commencement of proceedings with a reasonable prospect of success. While it did not automatically follow that a claimant would have acquired the requisite knowledge by the date he first took legal advice, such an inference might well be justified. However, the date upon which he first consulted an expert was not, of itself, likely to assist in determining whether he had the requisite knowledge by then. Rather, the court would have regard to the confidence with which he held the belief, the substance it carried prior to his consulting the expert, and the effect of the expert's report. Applying those principles to the instant case, the Court of Appeal had been correct to conclude that B had the requisite knowledge more than three years before the issue of proceedings (paras 10-13, 25, 57-58). (3) While it was undesirable for a court deciding a limitation issue to have detailed regard to the evidence which the claimant put forward as supporting his substantive case, the Court of Appeal had been in the unusual position of having before it a mass of material which enabled it to assess with confidence B's prospects of establishing causation. The claims had no real prospect of success and it would have been absurd for the Court of Appeal to have exercised its discretion under s.33 so as to allow them to proceed (paras 27, 75-77, 86, 156-158).

Appeals dismissed.

Comment

Claims brought by servicemen who alleged that they had suffered personal injuries as a result of exposure to radiation during nuclear tests carried out by the Ministry of Defence in the 1950s were time-barred under the Limitation Act 1980. By the time a claimant issued proceedings he had, in law, to have the knowledge required by s.14(1)(b) of the Act. It was a legal impossibility for a claimant to lack such knowledge after he had issued proceedings.